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AF | BCMR | CY2002 | 0103031
Original file (0103031.doc) Auto-classification: Denied

                            RECORD OF PROCEEDINGS
             AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS


IN THE MATTER OF:      DOCKET NUMBER: 01-03031

            COUNSEL:  NONE

            HEARING DESIRED:  NO


_________________________________________________________________

APPLICANT REQUESTS THAT:

His bad conduct discharge be upgraded to a general discharge.

_________________________________________________________________

THE APPLICANT CONTENDS THAT:

The basis for his court-martial was not altogether direct faults of his  own
doing.  His wife had been writing checks at the same  time  he  was  and  he
never intended to deceive anyone.  Although he pled guilty  to  all  of  the
charges, he did so for lesser incarceration after the  prosecuting  attorney
informed his lawyer that he could face up  to  58  years  of  incarceration.
Throughout his Air Force career, he performed his duties  well  and  to  the
best of his ability, even while incarcerated.

In support of the appeal, applicant submits a statement from  the  Executive
Secretary, Air Force Clemency and Parole Board,  approving  his  entry  into
the Air Force Return to Duty Program, and a statement from the shift  leader
at the Fort Sill Regional Confinement Facility Dining Hall.

Applicant’s complete submission, with attachments, is at Exhibit A.

_________________________________________________________________

STATEMENT OF FACTS:

While serving on active duty  in  the  grade  of  airman  first  class,  the
applicant was tried on 4 August 1999 by a general  court-martial  consisting
of officers.  He was charged with having, with intent  to  defraud,  uttered
107 bad checks  during  the  period  29 March  1998  to  16  February  1999,
totaling approximately $2998.00, in violation of  Article  123a,  UCMJ.   He
pled guilty to all charges and was sentenced to  a  bad  conduct  discharge,
six months confinement, total forfeitures, and reduction  to  the  grade  of
airman basic (E-1).

On 1  October  1999,  the  convening  authority  approved  the  sentence  as
adjudged.

The Air Force Court of Criminal Appeals affirmed the findings  and  sentence
on 24 November 1999.

On 8 March 2000, the U.S. Court of Appeals for the Armed Forces  denied  the
applicant’s petition for review of the lower court’s decision.

On 7 April 2000, a final court-martial order was issued directing  that  the
bad conduct discharge be executed and the applicant  was  discharged  on  12
April 2000.

_________________________________________________________________

AIR FORCE EVALUATION:

AFLSA/JAJM recommends the application  be  denied.   AFLSA/JAJM  states,  in
part, that while the applicant contends he was unaware  that  his  wife  was
using a separate book of higher  numbered  checks  and  did  not  intend  to
deceive anyone, no mention was made at trial of  any  deceit  by  his  wife.
The military judge specifically determined that the applicant’s  intent  was
to write bad checks knowing there was no way he would have sufficient  funds
to cover them.  At trial, the judge asked the applicant, “So  none  of  this
was a result of your wife writing checks you didn’t know about  causing  you
to have a negative balance?”  The applicant’s answer was “No, your honor.”

The AFLSA/JAJM evaluation is at Exhibit C.

_________________________________________________________________

APPLICANT’S REVIEW OF AIR FORCE EVALUATION:

A complete copy of the Air Force evaluation was forwarded to  the  applicant
on 1 March 2002 for review and response within  30  days.   However,  as  of
this date, no response has been received by this office.

_________________________________________________________________

THE BOARD CONCLUDES THAT:

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

2.  The application was timely filed.




3.  Insufficient relevant evidence has been  presented  to  demonstrate  the
existence of probable error or injustice.  After a thorough  review  of  the
evidence of record and applicant’s submission, we  are  not  persuaded  that
relief should be granted.  Applicant’s contentions are duly noted;  however,
we do  not  find  these  assertions,  in  and  by  themselves,  sufficiently
persuasive to override the rationale provided by the Air Force.  The  office
of primary responsibility has adequately addressed  applicant’s  contentions
and we agree with their opinion and we adopt the rationale expressed as  the
basis for our decision that the applicant has failed to sustain  his  burden
that he has suffered either an error or an injustice.   Hence,  we  find  no
compelling basis to recommend granting the relief sought.

_________________________________________________________________

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.

_________________________________________________________________

The following members of the Board  considered  Docket  Number  01-03031  in
Executive Session on 9 April 2002, under the provisions of AFI 36-2603:

                  Ms. Olga M. Crerar, Panel Chair
                  Mr. Roscoe Hinton Jr., Member
                  Ms. Marilyn Thomas, Member

The following documentary evidence was considered:

    Exhibit A.  DD Form 149, dated 20 Sep 01.
    Exhibit B.  Applicant's Master Personnel Records.
    Exhibit C.  Letter, AFLSA/JAJM, dated 14 Feb 02.
    Exhibit D.  Letter, SAF/MRBR, dated 1 Mar 02.




                                   OLGA M. CRERAR
                                   Panel Chair

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