RECORD OF PROCEEDINGS
AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS
IN THE MATTER OF: DOCKET NUMBER: 02-01953
INDEX CODE: 110.02
COUNSEL: NONE
HEARING DESIRED: NO
_________________________________________________________________
APPLICANT REQUESTS THAT:
Her bad conduct discharge be upgraded to general under honorable conditions
and that her records list “conspiracy” as a misdemeanor and not a federal
crime.
_________________________________________________________________
APPLICANT CONTENDS THAT:
She was told her discharge would automatically be upgraded to general under
honorable conditions.
Applicant provides no supporting documentation. The applicant’s submission
is at Exhibit A.
_________________________________________________________________
STATEMENT OF FACTS:
Records indicate that the applicant enlisted in the Regular Air Force on 9
July 1990. The applicant received one Enlisted Performance Report with a
promotion recommendation of 3.
On 6 May 1993, the applicant was tried by a general court-martial. She was
charged with violation of Article 81, conspiracy to commit larceny by
fraud; Article 121, stealing by fraud; and Article 134, submitting a false
report to Rapid City Police Department. She was found guilty and was
sentenced to be discharged with a bad conduct discharge, to be confined for
seven months, to be reduced to E-1, and to forfeit five-hundred dollars
($500) per month for seven months. The applicant was discharged with a bad
conduct discharge on 11 May 1994. She had served 3 years, 4 months and 7
days on active duty. She had 191 days of lost time due to confinement.
On 23 April 1996, the Air Force Discharge Review Board reviewed and
returned the applicant’s request for a discharge upgrade.
The relevant facts pertaining to her court-martial and the categorization
of her conviction are contained in the letter prepared by the appropriate
office of the Air Force at Exhibit C.
_________________________________________________________________
AIR FORCE EVALUATION:
AFLSA/JAJM recommends the application be denied. JAJM states that the
legal and competent evidence of record establishes beyond a reasonable
doubt each element of the offenses of which the applicant was found guilty.
There were no errors or irregularities that materially prejudiced the
substantial rights of the applicant. JAJM further states that the Air
Force does not categorize convictions arising from courts-martial as
misdemeanor or otherwise. The Air Force does not categorize convictions
arising from courts-martial as misdemeanor or otherwise. Whether the
applicant’s conviction for conspiracy is a misdemeanor depends on the
jurisdiction to which it is compared. The applicant may apply for a
Presidential pardon under the provisions of Title 28, Code of Federal
Regulations, Section 1.1. The decision to grant or withhold such pardons
is made primarily on the basis of post-trial conduct and citizenship,
although the nature of the offense plays a part. A pardon has no legal
effect other than to express forgiveness by the United States at the
highest level. It can be highly significant to prospective employers, as
well as state and local authorities.
The AFLSA/JAJM evaluation is at Exhibit C.
_________________________________________________________________
APPLICANT'S REVIEW OF AIR FORCE EVALUATION:
On 30 August 2002, a copy of the advisory was forwarded to the applicant
for review and comment. As of this date, this office has received no
response.
_________________________________________________________________
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. After careful consideration of the
applicant’s request and the available evidence of record, we see no
evidence that would warrant an upgrade to her characterization of service
based on clemency, particularly in view of the seriousness of the offenses
of which the applicant stood convicted. As to the applicant’s request to
change her records to list “conspiracy” as a misdemeanor and not a federal
crime, we defer to and agree with the opinion and recommendation of the Air
Force office of primary responsibility that the Air Force does not
categorize convictions arising from courts-martial as misdemeanor or
otherwise; therefore, this request is also not favorably considered.
_________________________________________________________________
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 AFBCMR 02-01953 in Executive
Session on 5 February 2002, under the provisions of AFI 36-2603:
Mr. Roscoe Hinton Jr, Panel Chair
Mr. Steven A. Shaw, Member
Mr. Thomas J. Topolski Jr, Member
The following documentary evidence was considered:
Exhibit A. DD Form 149, dated 25 June 2002.
Exhibit B. Applicant's Master Personnel Records.
Exhibit C. Letter, AFLSA/JAJM, dated 19 August 2002.
Exhibit D. Letter, SAF/MRBR, dated 30 August 2002.
ROSCOE HINTON JR
Panel Chair
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