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AF | BCMR | CY2003 | BC-2002-01813
Original file (BC-2002-01813.DOC) Auto-classification: Denied


                       RECORD OF PROCEEDINGS
         AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS

IN THE MATTER OF:      DOCKET NUMBER:  BC-2002-01813
            INDEX CODE:  A68.00

            COUNSEL:  NONE

            HEARING DESIRED:  NO

_________________________________________________________________

APPLICANT REQUESTS THAT:

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

_________________________________________________________________

APPLICANT CONTENDS THAT:

He is requesting an upgrade of his discharge based on the  actions  he
has taken and the direction of his life since his separation from  the
military.

In support of his appeal, the applicant provided  a  copy  of  DD Form
293, Application for Review of Discharge or Dismissal from  the  Armed
Forces of the United States.

Applicant's complete submission, with attachment, is at Exhibit A.

_________________________________________________________________

STATEMENT OF FACTS:

The applicant enlisted in the Regular Air Force on 14  Dec  94  for  a
period of four years in the grade of airman basic.   He  received  one
Enlisted Performance Report (EPR) in  which  he  received  an  overall
rating of 1 (1-5 (Highest)), which was a referral report.

On 3 Aug 96, the applicant was convicted by general  court-martial  of
damaging property and theft.  He was sentenced to a  BCD,  confinement
for 2 years and 9 months, and forfeitures of all pay  and  allowances.
The convening authority approved the sentence as adjudged.

On 14 Dec 99, the  approved  sentence  of  the  general  court-martial
having been affirmed,  the  applicant’s  discharge  was  ordered  into
execution.  He was discharged on  16  Dec  99  with  a  BCD.   He  was
credited with 3 years, 2 months, and 21 days of active service.

_________________________________________________________________

AIR FORCE EVALUATION:

AFLSA/JAJM recommended denial indicating that there is no legal  basis
for upgrading the applicant's discharge.  The appropriateness  of  his
sentence, within  the  prescribed  limits,  is  a  matter  within  the
discretion of the court-martial and may be mitigated by the  convening
authority or within the course of the appellate review  process.   The
applicant had the assistance of counsel in presenting extenuating  and
mitigating matters in their most favorable light to the court and  the
convening authority.  These matters were considered in review  of  the
sentence.  The applicant was  thus  afforded  all  rights  granted  by
statue  and  regulation.   He  provided  no  compelling  rationale  to
mitigate the approved BCD given the circumstances of the case.

In AFLSA/JAJM's  view,  clemency  should  only  be  granted  when  the
applicant has demonstrated that the degree of punishment  in  relation
to the crime was a clear injustice.  The applicant cannot and has  not
made such a showing.  Hence, clemency by the Board is unwarranted.

A complete copy of 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  18
Apr 03 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 Air Force
office of primary responsibility (OPR) and adopt  their  rationale  as
the basis for our conclusion that  the  applicant  has  not  been  the
victim of an error or injustice.  The  evidence  of  record  indicates
that he was sentenced to a BCD, confinement for 2 years and 9  months,
and forfeitures  of  all  pay  and  allowances  as  a  result  of  his
conviction by general court-martial for damaging property  and  theft.
He now requests that his BCD be upgraded based on the actions  he  has
taken and the direction of his life since  his  separation.   After  a
thorough review of the facts and circumstances of this case,  we  find
no evidence which indicates that the applicant’s BCD was  improper  or
that it exceeded the limitations set forth  in  the  Uniform  Code  of
Military Justice (UCMJ).  Furthermore, because of the  short  duration
since the  applicant’s  separation,  we  do  not  find  upgrading  the
applicant’s BCD based on clemency appropriate in  this  case  at  this
time.  In view of the foregoing, and  in  the  absence  of  sufficient
evidence to the contrary, we find no  compelling  basis  to  recommend
granting the relief sought in this application.

_________________________________________________________________

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 AFBCMR Docket Number BC-
2002-01813 in Executive Session on 27 May 03, under the provisions  of
AFI 36-2603:

      Mrs. Barbara A. Westgate, Chair
      Mr. Roscoe Hinton, Jr., Member
      Mrs. Carolyn B. Willis, Member

The following documentary evidence was considered:

    Exhibit A.  DD Form 149, dated 13 Feb 03, w/atch.
    Exhibit B.  Applicant's Master Personnel Records.
    Exhibit C.  Letter, AFLSA/JAJM, dated 8 Apr 03.
    Exhibit D.  Letter, SAF/MRBR, dated 18 Apr 03.




                                   BARBARA A. WESTGATE
                                   Chair



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