RECORD OF PROCEEDINGS
AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS


IN THE MATTER OF:      DOCKET NUMBER:  98-02606
            INDEX CODE:  110.00

            COUNSEL:  NONE

            HEARING DESIRED:  YES


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APPLICANT REQUESTS THAT:

His bad conduct discharge be upgraded to general.

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APPLICANT CONTENDS THAT:

His defense counselor misled him, persuaded him to  plead  guilty,  did  not
prepare for his defense, and did not properly advise him during the  conduct
of the trial.

In support of the appeal, applicant submits personal  statements  and  eight
character references.

Applicant's complete submission is attached at Exhibit A.

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STATEMENT OF FACTS:

The relevant facts  pertaining  to  this  application,  extracted  from  the
applicant’s military records, are contained in  the  Brief  prepared  by  an
Examiner for the Air Force Discharge Review Board  (AFDRB)  and  the  letter
prepared by the appropriate office of the Air Force.  Accordingly, there  is
no need to recite these facts in this Record  of  Proceedings.   A  complete
copy of the AFDRB brief and the letter are attached at Exhibits C and D.

Pursuant to the  Board’s  request,  the  Federal  Bureau  of  Investigation,
Washington, D.C., provided an investigative report.  A complete copy of  the
FBI Report is attached at Exhibit E.

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AIR FORCE EVALUATION:

The Associate Chief, Military Justice  Division,  AFLSA/JAJM,  reviewed  the
application and states that the  applicant’s  contention  that  he  was  the
victim of alcoholism does not support relief.   Based  upon  the  record  of
trial, it is clear that the  court  was  well  aware  that  the  applicant’s
misconduct occurred while he  was  intoxicated.   They  state  although  the
applicant’s defense attorney did not  argue  the  fact  of  the  applicant’s
alcoholism, there are several possible explanations for this.   Perhaps  the
defense counsel was unable to  substantiate  the  applicant’s  claim.   They
note that the applicant has not submitted any supporting evidence  with  his
application.  Or perhaps the defense counsel thought that the panel  members
might consider alcoholism  to  be  an  aggravating  factor,  rather  than  a
mitigating factor.   In  addition,  it  is  possible  the  defense  attorney
thought that such testimony might open the door to other  misconduct,  which
in the applicant’s case was an Article 15 received 5 years earlier  for  the
same misconduct.  They state, in other words, counsel’s omission might  have
been trial strategy.  They also note that even today,  alcoholism  does  not
excuse the commission of a crime.

They state that the applicant’s contention that he has been a  good  citizen
is also not persuasive.   A  military  service  characterization  is  not  a
reward for good citizenship.  An honorable discharge is earned by  honorable
service.  The critical question is:  What was the nature of the  applicant’s
military service?  In this case, the answer is  less  than  honorable.   Not
only was the bad conduct discharge adjudged by a panel of military  members,
it was affirmed by the convening authority and two courts of review.

They state finally, the applicant asks the Board to believe he was sold  out
by his defense counsel by means of his guilty  plea.   Yet,  the  record  of
trial indicates that the applicant’s guilty plea was entered  knowingly  and
intentionally.  They state the judge’s inquiry into the  providency  of  the
plea begins on page 10 of the record of trial  and  continues  through  page
27.  Throughout the inquiry, the judge consistently and carefully asked  the
applicant if he was acting with a full understanding of the consequences  of
his plea.  The applicant averred, under oath, that he understood  everything
about the guilty plea.  There is nothing to suggest  otherwise.   Therefore,
they recommend denial of applicant’s request.

A complete copy of the evaluation is attached at Exhibit E.

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APPLICANT'S REVIEW OF AIR FORCE EVALUATION:

The applicant reviewed the Air Force evaluation and states that after  being
separated from the U.S. Air Force under the prevailing conditions,  at  that
time,  he  was  completely  devastated  and  dysfunctional.   The  alcoholic
condition that led to his dismissal did not  get  better  without  immediate
professional assistance and treatment.  He states, as  the  reality  of  the
situation facing him at the time became clear, he could only keep a grip  on
his sanity through a state of denial  supported  by  the  continued  use  of
alcohol.

The reason for not acting within the allotted time period is because he  was
not physically, mentally, nor financially able.   He  asks  that  the  Board
understand  that  he  is  not  requesting  a  complete  set  aside  of   his
conviction, but an upgrade of his discharge.  This request is made based  on
his belief that there was an injustice delivered in his  case  based  on  an
inadequate and unqualified defense.

Applicant's complete response is attached at Exhibit G.

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THE BOARD CONCLUDES THAT:

1.    The applicant has exhausted all remedies provided by existing  law  or
regulations.

2.    The application was not timely filed; however, it is in  the  interest
of justice to excuse the failure to timely file.

3.    Insufficient relevant evidence has been presented to  demonstrate  the
existence of probable error or injustice.  We find  no  impropriety  in  the
characterization of applicant's  discharge.   It  appears  that  responsible
officials applied appropriate standards in effecting the separation, and  we
do not find persuasive evidence that pertinent regulations were violated  or
that applicant was not afforded all the rights  to  which  entitled  at  the
time of discharge.  We conclude, therefore, that the  discharge  proceedings
were proper and characterization of the discharge  was  appropriate  to  the
existing circumstances.  Therefore,  in  the  absence  of  evidence  to  the
contrary, we find no compelling  basis  to  recommend  granting  the  relief
sought in this application.

4.    We also find insufficient evidence to warrant  a  recommendation  that
the discharge be upgraded on the basis  of  clemency.   We  have  considered
applicant’s overall quality of service, the events  which  precipitated  the
discharge, and available evidence related  to  post-service  activities  and
accomplishments.  On balance, we do not believe that clemency is warranted.

5.    The applicant's case is adequately documented  and  it  has  not  been
shown that a personal appearance with or  without  counsel  will  materially
add to our understanding of the issue(s) involved.  Therefore,  the  request
for a hearing is not favorably considered.

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THE BOARD DETERMINES THAT:

The applicant be notified that the evidence presented  did  not  demonstrate
the existence of probable material error or injustice; that the  application
was denied without a personal appearance;  and  that  the  application  will
only be reconsidered  upon  the  submission  of  newly  discovered  relevant
evidence not considered with this application.

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The following members of the Board considered this application in  Executive
Session on 8 June 1999, under the provisions of AFI  36-2603:

                 Mr. Oscar A. Goldfarb, Panel Chair
                 Mr. Lawrence R. Leehy, Member
                 Mr. David E. Hoard, Member
                 Ms. Phyllis L. Spence, Examiner (without vote)

The following documentary evidence was considered:

      Exhibit A. DD Form 149, dated 11 Sep 98, w/atchs.
      Exhibit B. Applicant's Master Personnel Records.
      Exhibit C. AFDRB Package.
      Exhibit D. Letter, AFLSA/JAJM, dated 10 Dec 78.
      Exhibit E. FBI Report.
      Exhibit F. Letter, AFBCMR, dated 18 Jan 99.
      Exhibit G. Applicant’s Response, dated 10 Feb 99.




                             OSCAR A. GOLDFARB
                             Panel Chair