RECORD OF PROCEEDINGS

         AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS


IN THE MATTER OF:      DOCKET NUMBER:  99-01672
            INDEX CODE:  100.00, 110.00

            COUNSEL:  AMERICAN LEGION

            HEARING DESIRED:  NO


_________________________________________________________________

APPLICANT REQUESTS THAT:

1.    His bad conduct discharge (BCD) be upgraded to honorable.

2.    The  reason  for  his  separation  be  changed  to  a  medical
retirement, with a corresponding separation code.

3.    His reenlistment eligibility (RE) code be changed to RE-1.

_________________________________________________________________

APPLICANT CONTENDS THAT:

His  guilty  pleas  were  improvident.   Although  he  intentionally
falsified claims and knowingly received monies he was  not  entitled
to as a result, he did not intend to steal; he  merely  intended  to
conceal from his commander the fact that he was  returning  home  at
night  rather  than  remaining  at  various  temporary  duty   (TDY)
locations.  Because of a series of family tragedies, including three
car accidents that left him, his wife, his mother, his son, and  his
daughter recuperating  from  serious  injuries,  combined  with  the
terminal illness of his father, the inability of his mother to  care
for herself,  the  loss  of  employment  by  his  wife  and  mother,
difficulties at school requiring the  withdrawal  of  his  son,  and
other financial, emotional and psychiatric strains  on  himself  and
his family, he found that it was necessary to spend as much time  at
home with his family as possible.  In order to  try  to  spend  more
time with his family, he made  an  unwise  choice.   He  decided  to
return home each night from TDY so that he could  try  to  keep  his
family, and his marriage, together.  In  order  to  cover  up  these
unauthorized absences from his TDY locations, he continued  to  file
vouchers as if he were staying over night at  the  TDY  sites.   His
motives were to be with his family – not defraud the government.  He
sought a humanitarian reassignment to care for his father which  was
denied.   He  was  considered  for  medical  retirement,  which  was
likewise denied.  He believes he has a meritorious  case,  primarily
because the military should not have accepted his  plea  to  larceny
charges.  More specifically, his purpose in falsifying vouchers  was
not to steal money (he claimed far too little for that to have  been
a reason), but to hide the fact that he was sneaking back home to be
with  his  family.   Essentially,  his  intentions   were   not   to
permanently deprive the true owner (Air Force) of this property, but
to cover up his other violations.  In addition, the penalty  imposed
was grossly excessive for a crime in which the  Air  Force  did  not
lose any money.

Applicant’s complete submission is attached at Exhibit A.

_________________________________________________________________

STATEMENT OF FACTS:

The applicant’s Total Active Federal Military Service Date  (TAFMSD)
was 13 Sep 79.

Applicant’s Enlisted Performance Report  (EPR)  profile  since  1985
follows:

            PERIOD ENDING          OVERALL EVALUATION

             31 Mar 85                     9
             19 Sep 85                     9
             31 May 86                     9
             31 May 87                     9
             10 Apr 88                     9
             22 Aug 88                     9
             22 Aug 89                     9
             24 May 90                     5 (New rating system)
             24 May 91                     5
             31 Jan 92                     5
             29 Sep 92                     5
             29 Sep 93                     4
             13 May 94                     4
             12 Jan 95                     4

On 5 Apr 95, an entry in applicant’s medical record  is  found  that
directed him to a Medical Evaluation Board (MEB)  for  determination
of worldwide duty qualification and other  entries  allude  to  this
pending action.  Records do not, however, contain  information  that
this MEB was accomplished, or, if it was,  what  the  recommendation
was regarding his continued military service.

On 7 Jul 95, the applicant was convicted by a general  court-martial
of nine specifications of larceny of approximately $600 he  received
as a result of fraudulent claims against the United States,  and  10
specifications of  making  false  claims  for  TDY  travel  expenses
totaling $671.  He was also convicted of wrongfully using Government-
issued American Express (AMEX) card for other than  official  travel
expenses  by  making  cash  advances  for  personal  expenses.   The
applicant was sentenced by a military judge to  a  BCD,  15  months’
confinement, reduction from the grade of staff sergeant to the grade
of airman basic, forfeiture of $425 pay a month for 15 months, and a
fine of $631.   A  pretrial  agreement  limited  confinement  to  12
months.  The convening  authority  approved  only  so  much  of  the
sentence as provided for a BCD, 12 months’ confinement, reduction to
the grade of airman basic, and forfeiture of $425 pay a month for 15
months.  The applicant’s conviction and sentence  were  affirmed  by
the Air Force Court of Criminal Appeals on 29 Oct 96.  His  petition
to the United States Court of  Appeals  for  the  Armed  Forces  was
denied.

On 7 May 97, the applicant was discharged under  the  provisions  of
General Court-Martial Order #116  (Court-Martial  (Other)),  with  a
BCD, in the grade of airman basic, with an RE code of 2M (Serving  a
sentence or suspended sentence of court-martial), and  a  separation
code of JJD (Court-Martial – Discharge/Other).  He was credited with
16 years, 10 months, and 1 day of active service.

On 10 Jun 99, applicant’s daughter, an Air Force airman, provided  a
statement in behalf of her father (see Exhibit C).

_________________________________________________________________

AIR FORCE EVALUATION:

The Associate Chief, Military Justice Division, AFLSA/JAJM, reviewed
this application and indicated that the  applicant  pled  guilty  to
multiple false claims and theft.  After an extensive inquiry by  the
military  judge,  those  pleas  were  accepted  as  provident.   The
applicant’s misuse of his AMEX card was fully litigated at trial and
the contested issues  were  decided  adversely  to  him.   Prior  to
determining an appropriate sentence, the military judge  had  before
him information concerning the applicant’s work performance, medical
condition, and the family hardships referenced  in  his  application
for relief.  The sentence adjudged was minimal, in comparison to the
maximum permissible punishment (approximately 77 years’ confinement,
dishonorable discharge, total forfeitures and reduction to the grade
of airman  basic).   The  sentence  provided  a  reasonable  balance
between applicant’s duty performance  and  the  seriousness  of  his
continuing, repeated, and deliberate misconduct.  Both the  findings
and sentence have undergone appellate scrutiny for both legal  error
and sentence appropriateness.  The applicant’s repeated and  serious
misconduct,  resulting  convictions  and  sentence,  have  certainly
compounded his undeniably tragic  family  situation.   However,  the
findings of guilt and the sentence imposed are fairly  supported  by
the evidence and are the sole  and  undeniable  consequence  of  the
applicant’s own criminal acts.  Although the Board has  jurisdiction
to grant the relief requested  by  the  applicant  as  a  matter  of
clemency, such action is not  warranted.   Because  the  applicant’s
contentions are  without  merit,  JAJM  recommends  the  Board  deny
relief, addressing only the propriety of upgrading his BCD.

A  complete  copy  of  the  Air  Force  evaluation  is  attached  at
Exhibit D.

The BCMR Medical Consultant reviewed this application and  indicated
that the applicant’s conviction by general court-martial in  Dec  95
resulted in the order for his BCD which came after he completed a 15-
month period of confinement.  He had a multiyear history of neck and
back pain along with a diagnosis of fibromyalgia for  which  he  was
treated.  These problems were primarily noted following two  head-on
automobile collisions in 1992 and 1994 which  the  applicant  claims
caused him considerable physical  and  psychological  problems  that
interfered with his duty performance.  A medical record entry in Jan
95 is found that mentions the pain syndromes but which  also  states
that he was able to work through the pain so he was  not  considered
disabled from these conditions.

The BCMR Medical Consultant states  that  the  applicant  furnishes,
with his appeal package, letters of recommendation from post-service
colleagues and supervisors attesting to his good performance in  the
workplace, an indication that he  has  been  able  to  be  gainfully
employed in the intervening two years since his  discharge  and  not
disabled from performance of such duties in his civilian life.

The BCMR Medical Consultant also states that in spite of the missing
documentation of the applicant’s MEB action, he is  of  the  opinion
that the most likely outcome of such a medical evaluation would have
been to return the applicant to duty as  qualified  to  perform  the
administrative duties to which he was assigned.  This  is  supported
by the physician’s note cited above that found him able to  work  as
late as January of the year he was  court-martialed.   Clearly,  the
applicant was not incapacitated from  performance  of  any  and  all
duties commensurate with his rank and station,  a  prerequisite  for
consideration in the disability  evaluation  system.   From  records
available for thorough review, there does not appear to  be  support
for the applicant’s claim to warrant  a  disability  retirement  and
favorable consideration of his request is not recommended.  The BCMR
Medical Consultant is of the opinion that no change in  the  records
is warranted and the application should be denied.

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

The Chief, Special Actions/BCMR Advisories, AFPC/DPPD, reviewed this
application  and  indicated  that  the  purpose  of   the   military
disability evaluation system is to maintain a fit and vital force by
separating members unable to perform the  duties  of  their  office,
grade, rank or rating and members who are separated or  retired  for
reason of physical disability may be eligible for certain disability
compensations.  Eligibility for disability processing is established
by an MEB when that board finds that the member may not be qualified
for continued military service.  The decision to conduct an  MEB  is
made by the medical treatment facility providing care to the member.

DPPD states that a review of the case file reveals that  during  the
Apr-May 95 timeframe, the applicant was identified  by  the  Wright-
Patterson AFB, Ohio, Hospital for  MEB  processing.   Correspondence
between the hospital and Headquarters Air Force  Military  Personnel
Center (AFMPC) (now the Air Force Personnel Center  (AFPC),  Medical
Standards Division (DPMMM), reflects that  the  applicant’s  medical
status was reviewed and it was determined that his  medical  defects
could disqualify  him  for  worldwide  duty.   On  5 Apr  95,  DPMMM
directed that an MEB be accomplished.  A review of  the  files  does
not include the MEB results.  It is speculated that the  MEB  action
may have been terminated due to  applicant’s  ongoing  court-martial
action.

DPPD  further  indicates  that  AFI  36-3212  states  that   members
undergoing court-martial charges that could result in a dismissal or
punitive discharge, and those convicted and sentenced  to  dismissal
or punitive discharge,  may  not  undergo  a  disability  evaluation
unless there is a question concerning his or her mental capacity  or
whose sentence to dismissal  or  punitive  discharge  is  suspended.
Based on the above information, the applicant was not  eligible  for
processing through the military disability evaluation system at  the
time of his BCD.  A thorough review of the  case  file  revealed  no
errors or injustice that would merit a  change  to  the  applicant’s
military records.  The  medical  aspects  of  this  case  are  fully
explained by the BCMR Medical Consultant and DPPD  agrees  with  his
advisory.   The  applicant  has  not  submitted  any   material   or
documentation to show he was unfit  due  to  a  physical  disability
under the provisions of Chapter 61, Title  10,  United  States  Code
(USC), at the time of his BCD and DPPD recommends denial.

A  complete  copy  of  the  Air  Force  evaluation  is  attached  at
Exhibit F.

The Special Programs & BCMR Manager, AFPC/DPPAES, also reviewed this
application and indicated that a review of applicant’s case file was
conducted and the RE  code  2M  “Serving  a  sentence  or  suspended
sentence of court-martial” is correct.

A complete copy of their evaluation is attached at Exhibit G.

_________________________________________________________________

APPLICANT'S REVIEW OF AIR FORCE EVALUATION:

Counsel reviewed the Air Force evaluations and provided  a  two-page
response asking that the Board consider  clemency  as  a  basis  for
granting applicant relief.  Counsel states that the record shows
that the applicant served the Air Force for many years prior to  the
events leading to his discharge without any  disciplinary  problems.
At the time of the incidents leading to  applicant’s  discharge,  he
was experiencing serious medical problems requiring his use of  pain
medication and he was  having  personal  and  family  problems  that
required his immediate attention.  Although his  actions  cannot  be
condoned,  it  would  appear  reasonable  that  he  may  have   been
overwhelmed by his problems and that they may  have  contributed  to
his inappropriate behavior.

Counsel also wishes the Board  take  note  of  the  many  statements
submitted by the applicant which  indicate  that  he  has  become  a
productive member of society since his discharge from the Air Force.
 These statements include character references showing that  he  has
excelled in school;  that  he  has  maintained  his  family  despite
obstacles; and, that he is employed in a responsible position.

Counsel’s complete response is attached at Exhibit I.

Pursuant to the Board’s request, the Federal Bureau of Investigation
(FBI), Clarksburg, West Virginia, provided an  investigative  report
which is attached at Exhibit J.

A copy of the FBI  report  was  provided  to  counsel/applicant  for
review and response.  Counsel provided a two-page  response  stating
that, since the applicant’s discharge, he has attended Norfolk State
University where he has maintained above average grades and where he
is highly thought of by his professors  as  evidenced  by  the  many
character references they have provided.  Also,  the  applicant  has
provided further  statements  indicating  that  he  is  successfully
employed and an asset to his community.   Counsel  states  that  the
American Legion’s express purpose in providing this  statement,  and
any other submittals or opinions of record, is to aid the  applicant
in  the  proper  resolution  of  any  error  or  injustice   raised.
Moreover, counsel rests assured that the Board’s final decision will
reflect sound equitable principles consistent  in  law,  regulation,
and policy.

Counsel’s complete response is attached at Exhibit L.

_________________________________________________________________

THE BOARD CONCLUDES THAT:

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

2.    The application was timely filed.

3.    Sufficient relevant evidence has been presented  to  demonstrate
the existence of probable error or injustice warranting an upgrade  of
his  discharge.   We  have  thoroughly  reviewed   the   circumstances
surrounding  the  applicant’s  discharge.    Although   the   evidence
presented does not substantiate that his  discharge  was  improper  or
contrary to law  or  regulation,  we  are  persuaded  that  relief  is
warranted in this case on the basis of  clemency.   We  recognize  the
adverse impact of the discharge applicant received; and, while it  may
have been appropriate at the time, we believe it would be an injustice
for applicant to continue to suffer its  effects.   After  noting  the
documentation provided by the applicant since leaving the service,  it
appears that he has overcome the behavioral traits which  led  to  the
contested discharge and has  been  a  productive  member  of  society.
Therefore, we are inclined to upgrade applicant’s discharge to general
(under honorable conditions) on the basis of clemency.  Therefore,  we
recommend that the records be corrected to the extent indicated below.
  We  considered  applicant’s  request  for  an  honorable  discharge;
however, based on his overall record, we do not believe that a further
upgrade is warranted.

4.    Insufficient relevant evidence has been presented to demonstrate
the existence of probable error  or  injustice  regarding  applicant’s
request for a medical discharge and a change to his RE code.  While we
are inclined to upgrade the applicant’s characterization of service to
general (under honorable conditions) on the basis of clemency, we  are
not persuaded that his RE code should be changed.   Members  separated
from the Air Force are  furnished  an  RE  code  predicated  upon  the
quality of their service and the circumstances  of  their  separation.
Applicant’s assigned RE code accurately reflects that he was serving a
court-martial sentence at the time  of  his  discharge.   We  are  not
persuaded by the evidence provided that the assigned  RE  code  is  in
error or unjust.  With respect to applicant’s request  for  a  medical
retirement, his contentions are duly noted; however, we  do  not  find
these assertions, in and by  themselves,  sufficiently  persuasive  to
override the rationale provided by the medical  authorities  in  their
advisories to this Board.  Therefore, we are  in  agreement  with  the
comments and recommendations of the Air Force and adopt the  rationale
expressed as the basis for our conclusion that  the  applicant  should
not receive a medical retirement.  In view of the above  findings,  we
find no compelling basis to recommend favorable action on his requests
for a medical retirement or a change in his RE code.

THE BOARD RECOMMENDS THAT:

The pertinent military records of the  Department  of  the  Air  Force
relating to APPLICANT, be corrected to show that on 7 May 97,  he  was
discharged with service  characterized  as  general  (under  honorable
conditions).

The following members of the  Board  considered  this  application  in
Executive Session on 21 June 2000, under the  provisions  of  AFI  36-
2603:

                  Mr. Thomas S. Markiewicz, Panel Chair
                  Ms. Nancy Wells Drury, Member
              Mrs. Diana Arnold, Member

All members  voted  to  correct  the  records,  as  recommended.   The
following documentary evidence was considered:

     Exhibit A.  DD Form 149, dated 29 May 99, w/atchs.
     Exhibit B.  Applicant's Master Personnel Records.
     Exhibit C.  Letter, applicant’s daughter, dated 10 Jun 99.
     Exhibit D.  Letter, AFLSA/JAJM, dated 20 Sep 99.
     Exhibit E.  Letter, BCMR Medical Consultant, dated 15 Oct
                   99.
     Exhibit F.  Letter, AFPC/DDPPD, dated 18 Nov 99.
     Exhibit G.  Letter, AFPC/DPPAES, dated 23 Nov 99.
     Exhibit H.  Letter, AFBCMR, dated 10 Dec 99.
     Exhibit I.  Letter fr counsel, dated 28 Dec 99.
     Exhibit J.  FBI Report.
     Exhibit K.  Letter, AFBCMR, dated 20 Mar 00.
     Exhibit L.  Letter fr counsel, dated 27 Apr 00.




                                   THOMAS S. MARKIEWICZ
                                   Panel Chair


AFBCMR 99-01672




MEMORANDUM FOR THE CHIEF OF STAFF

      Having received and considered the  recommendation  of  the  Air
Force Board for Correction of Military Records and under the authority
of Section 1552, Title 10, United States Code (70A Stat  116),  it  is
directed that:

      The pertinent military records of  the  Department  of  the  Air
Force relating to , be corrected to show that on 7 May  1997,  he  was
discharged with service  characterized  as  general  (under  honorable
conditions).







                                                            JOE     G.
LINEBERGER
                                                         Director
                                                           Air   Force
Review Boards Agency