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AF | BCMR | CY2003 | 0201953
Original file (0201953.doc) Auto-classification: Denied

                            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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