RECORD OF PROCEEDINGS
         AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS

IN THE MATTER OF:      DOCKET NUMBER:  02-00291
            INDEX CODE:  110.00

            COUNSEL:  NONE

            HEARING DESIRED:  YES


_________________________________________________________________

APPLICANT REQUESTS THAT:

His bad conduct discharge be upgraded to honorable or a general  under
honorable conditions discharge.
_________________________________________________________________

APPLICANT CONTENDS THAT:

He may be attending law school in Jan 03 and would like to  clear  his
record.

No supporting documents  were  submitted.   The  applicant’s  complete
submission is at Exhibit A.
_________________________________________________________________

STATEMENT OF FACTS:

The applicant’s Total Active Federal Military Service Date  is  10 Jul
73.  He was progressively promoted to the grade of staff sergeant  (E-
5), with an effective date  and  date  of  rank  of  2  Mar  80.   The
following is a resume of  his  Enlisted  Performance  Reports  ratings
subsequent to his promotion to that grade (oldest to most recent):  8,
6, 7, 8, 9, 3.

On 28 Aug 84, applicant was notified  of  his  commander's  intent  to
impose nonjudicial punishment on him  under  Article  15,  UCMJ.   The
misconduct applicant had allegedly committed was disobeying  a  lawful
order on or about 14 Aug 84, in violation of Article  92,  UCMJ.   The
applicant consulted a lawyer, waived his  right  to  demand  trial  by
court-martial and accepted nonjudicial punishment.  After  considering
all matters presented to him, the commander found that  the  applicant
did commit one or more of the offenses alleged.  The commander imposed
punishment of forfeiture of $300.00 per  month  for  2  months  and  a
suspended reduction in grade to sergeant until 1 Mar 85 at which time,
unless the suspension was vacated sooner, it would be remitted without
further action.  The applicant submitted documentation indicating that
he appealed the nonjudicial punishment on 14 Sep 84.  The  applicant’s
appeal was granted, in part, by the appellate authority.  The  portion
of the punishment consisting of forfeiture of $300.00 per month for  2
months was reduced to $200.00 per month for 2 months.  The Article  15
action was filed  in  the  applicant’s  Unfavorable  Information  File
(UIF).

On 6 November 1984, the applicant was tried before  a  special  court-
martial  at Torrejon Air Base, Spain.  He was charged  with  violation
of Article 86, UCMJ -  Specification:   Failure  to  go  at  the  time
prescribed at T----- AB, on or about 23  Sep  84;  and,  violation  of
Article 92, UCMJ - Specifications:  Failure to  obey  his  commander’s
order to weigh-in, on or about 26 Sep 84,  and  failure  to  obey  his
commander’s order to not leave Building 458, on or about  26  Sep  84.
He pled not guilty to the charges and specifications; however, he  was
found guilty.  On 9 Nov 84, applicant was sentenced to a  bad  conduct
discharge and a reduction to the grade of  airman  basic  (E-1).   The
sentence was approved by the convening authority and on 28 Jun 85, the
Air Force Court of Military Review affirmed the findings and sentence.

He received a bad conduct discharge on 26 Mar 86 under the  provisions
of AFR 39-10 (conviction by court-martial (other than desertion)).  He
had completed a total of 12 years,  8  months  and  18  days  and  was
serving in the grade of airman basic (E-1) at the time of discharge.
_________________________________________________________________

AIR FORCE EVALUATION:

HQ AFLSA/JAJM recommends the application  be  denied.   HQ  AFLSA/JAJM
states that the applicant was on the weight management program.  On  9
Nov 84, he was convicted by a special court-martial for a  failure  to
repair, in violation of Article 86, UCMJ, and  two  specifications  of
failing to obey the  lawful  orders  of  his  commanding  officer,  in
violation of Article 92, UCMJ.  He was  sentenced  to  a  bad  conduct
discharge and reduced to the grade of  airman  basic.   The  convening
authority approved the sentence as adjudged on 12 Dec 84.   On  28 Jun
85, the Air Force Court of Military Review affirmed  the  findings  of
guilty and the sentence.  The Court of  Military  Appeals  denied  the
applicant’s petition for review on 5 Dec 85.

JAJM noted that, in addition to the special court-martial  conviction,
the applicant received an Article 15 on 14 Sep 84 for  disobeying  the
order of a noncommissioned officer.  He  also  received  a  letter  of
reprimand on 5 Aug 83  for  assaulting  his  wife  during  a  domestic
dispute.

JAJM is of the opinion that that there is no reason for the  Board  to
exercise clemency in this case.  The record of  trial  indicates  this
case was fully litigated.  The applicant has provided no  evidence  of
any injustice related to his court-martial.  There is no merit to  the
applicant’s claim.

JAJM indicated that the applicant may apply for a Presidential  pardon
under the Provisions of Title 28, Code of Federal Regulations, Section
1.1.  Such applications are considered only if  at  least  five  years
have passed since the trial or completion of  sentence,  whichever  is
later.  The decision  to  grant  or  withhold  such  pardons  is  made
primarily on the basis  of  post-trial  conduct  and  citizenship.   A
pardon has no legal effect other than to express  forgiveness  by  the
United States at the highest level.

The AFLSA/JAJM evaluation is at Exhibit C.
_________________________________________________________________

APPLICANT'S REVIEW OF AIR FORCE EVALUATION:

A copy of the Air Force evaluation was forwarded to  applicant  on  13
September 2002 for review and response.  As of this date, no  response
has been received by this office (Exhibit D).
_________________________________________________________________

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  error  or  injustice.   We  took  notice  of   the
applicant's complete submission in judging the  merits  of  the  case.
However,  we  agree  with  the  opinion  and  recommendation  of   the
appropriate Air Force office and 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.  In  view
of the  above  and  absent  evidence  to  the  contrary,  we  find  no
compelling basis to recommend  granting  the  relief  sought  in  this
application.

4.  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.
_________________________________________________________________

THE BOARD DETERMINES THAT:

The  applicant  be  notified  that  the  evidence  presented  did  not
demonstrate the existence of 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  02-00291
in Executive Session on 12 December 2002, under the provisions of  AFI
36-2603:

                  Mr. Albert F. Lowas Jr., Panel Chair
                  Ms. Martha J. Evans, Member
                  Ms. Carolyn B. Willis, Member

The following documentary evidence was considered:

   Exhibit A.  DD Form 149, dated 23 Jan 02.
   Exhibit B.  Applicant's Master Personnel Records.
   Exhibit C.  Letter, AFLSA/JAJM, dated 7 June 2002.
   Exhibit D.  Letter, SAF/MRBR, dated 13 September 2002.




                                   ALBERT F. LOWAS JR.
                                   Panel Chair