RECORD OF PROCEEDINGS
         AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS

IN THE MATTER OF:      DOCKET NUMBER:  02-02242
            INDEX NUMBER:  110.00
      XXXXXXXXXXXXXX   COUNSEL:  None

      XXX-XX-XXXX      HEARING DESIRED:  No

_________________________________________________________________

APPLICANT REQUESTS THAT:

It appears that the applicant requests that the Bad Conduct  Discharge
(BCD) he received as  a  sentence  of  court-martial  be  upgraded  to
honorable, his former grade of master sergeant be restored and  he  be
allowed to retire from the Air Force.

_________________________________________________________________

APPLICANT CONTENDS THAT:

His court-martial and subsequent BCD were the result of the  psychotic
and criminal behavior  of  spouse  who  was  diagnosed  as  clinically
insane.

He was given drugs prior to his court-martial and was not  allowed  to
solicit witnesses.

He was on mentally debilitating medication during the  preparation  of
the pre-trial confinement.

He had ineffective assistance of counsel during his court-martial  and
during the appellate phase.

The Staff Judge Advocate manipulated  the  physical  evidence  at  his
court-martial, his sanity hearing results, and the clemency actions.

He was on psychotropic and pain medication  or  undergoing  medication
withdrawal during the entire court-martial process.

In support of his appeal, applicant submits a copy of a 32-page letter
that he wrote to the president detailing problems that he asserts  his
wife had that impacted his career.  He also provides a 17-page  letter
to provide additional details covering the period of his confinement.

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

_________________________________________________________________

STATEMENT OF FACTS:

The applicant entered active duty on 27 Sep  71.   According  to  data
contained in  his  military  personnel  records,  on  1  Dec  89,  the
applicant’s commander requested a  mental  health  evaluation  of  the
applicant.  This was based on the applicant’s misconduct, i.e., use of
cocaine and other crimes.  The applicant  was  seen  at  Wilford  Hall
Medical Center as an outpatient on 6 and 8 Dec 89.  However, on 14 Dec
89,  while  in  administrative  segregation  at  the   Bergstrom   AFB
confinement facility, the applicant set himself on fire and  sustained
18% second degree burns on his upper body.  Subsequently,  on  19  Dec
89, the applicant’s Area Defense Counsel (ADC) made a request  to  the
applicant’s commander that a  continuing  inquiry  be  made  into  the
mental capacity and the mental responsibility of the  applicant.   The
commander concurred and on 19 Dec 89 requested that the  Wilford  Hall
Medical Center Psychiatry Department conduct a continuing inquiry into
the mental capacity and mental responsibility of the applicant.

On 2 Feb 90, a Sanity Board  was  convened  to  determine  the  mental
capacity and mental responsibility of the applicant.   Among  the  key
findings made by the Sanity Board were the following:

        a.  Did the applicant have a severe mental disease  or  defect
at the time of his alleged criminal conduct?  No.

        b.  Was the applicant, at the time  of  the  alleged  criminal
conduct and as a result of  such  severe  mental  disease  or  defect,
unable to appreciate the nature and quality  or  wrongfulness  of  his
conduct?  No.

        c.  Did the  applicant  have  sufficient  mental  capacity  to
understand the nature of the proceedings and to conduct  or  cooperate
intelligently in the defense?  Yes.

On 2 Mar 90, the applicant was tried by General Court-Martial on  five
charges, each with  several  specifications.   The  applicant  pleaded
guilty to four of the charges and was found guilty in accordance  with
his pleas.  The  fifth  charge  was  withdrawn  after  findings.   The
applicant  was  sentenced  to  a  BCD,  confinement  for  five  years,
forfeiture of all pay and allowances, and reduction to airman basic.

Additional  facts  pertinent  to  this  case  are  contained  in   the
evaluation prepared by the appropriate office of the Air  Force  found
at Exhibit C.

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AIR FORCE EVALUATION:

AFLSA/JAJM recommends that the applicant’s  requests  be  denied.   In
support  of  their  evaluation,  AFLSA/JAJM  attaches  copies  of  two
decisions by the Air Force Court  of  Military  Review  regarding  the
applicant’s court-martial.

The applicant, while serving on active duty in  the  grade  of  master
sergeant, was tried by general court martial on  2  Mar  90.   He  was
charged with a variety of crimes.  He was represented by his  military
defense counsel and pleaded guilty to all but one  charge,  which  was
withdrawn by the convening authority.  Prior to trial,  the  convening
authority entered into an agreement with the applicant not to  approve
any confinement in excess  of  ten  years.   The  convening  authority
approved the applicant’s sentence of a BCD, confinement to five years,
forfeiture of  all  pay  and  allowances,  and  reduction  to  E-1  as
adjudged.

AFLSA/JAJM provides details of the actions of the Air Force  Court  of
Military Review regarding the applicant’s  court-martial  and  various
appeals.

AFLSA/JAJM also addresses the AFBCMR’s limitations regarding  granting
relief in cases involving court-martials.   According  to  AFLSA/JAJM,
there are only two areas that the Board can grant  relief,  correction
of a record to reflect actions taken by  reviewing  authorities  under
the UCMJ and “action on the sentence of courts-martial for the purpose
of clemency.

The assertions raised by  the  applicant  in  this  appeal  have  been
addressed by the Air Force Court of Military Review, are not supported
by facts, or made irrelevant by the applicant’s pleas of guilty.   The
Air  Force  Court  of  Military  Review  gave  the   applicant   every
opportunity to present his claims.  Each of the applicant’s  arguments
were examined by the court and found to be without merit.

AFLSA/JAJM asserts that the sentence received  by  the  applicant  was
considerably less than the maximum possible.  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 has made no such showing.

The complete evaluation, with attachments, is at Exhibit C.

_________________________________________________________________

APPLICANT'S REVIEW OF AIR FORCE EVALUATION:

The applicant responded to the Air Force evaluation  in  a  seven-page
letter.  He asserts that he has been a victim of the Air Force system.
 The applicant’s presents his reasoning as to why his requests to  the
Board have validity.

The applicant’s complete response, with attachments, is at Exhibit E.

_________________________________________________________________

THE BOARD CONCLUDES THAT:

1.  The application was not filed within three years after  the  alleged
error or  injustice  was  discovered,  or  reasonably  could  have  been
discovered, as required by Section 1552, Title 10,  United  States  Code
(10 USC 1552), and Air Force Instruction 36-2603.   The  applicant  does
not assert a date of  discovery,  which  would,  if  correct,  make  the
application timely.   The  essential  facts,  which  gave  rise  to  the
application, appear to have been known well before a date  of  discovery
that would make this  application  timely.   Knowledge  of  those  facts
constituted the date of discovery and the beginning  of  the  three-year
period for filing.  Thus the application is untimely.

2.  Paragraph b of 10 USC 1552 permits us, in our discretion, to  excuse
untimely filing in the interest of justice.  We have carefully  reviewed
applicant's submission and the entire record,  and  we  do  not  find  a
sufficient basis to excuse the untimely filing of this application.  The
applicant has not shown a plausible reason for delay in filing,  and  we
are not persuaded that the record raises issues of  error  or  injustice
which require resolution on the merits at this  time.   Accordingly,  we
conclude that it would not be in the interest of justice to  excuse  the
untimely filing of the application.

______________________________________________________________

DECISION OF THE BOARD:

The application was not timely filed and it would not be in the interest
of justice to waive the untimeliness.  It is the decision of the  Board,
therefore, to reject the application as untimely.

_________________________________________________________________

The following members of the Board considered Docket  Number  02-02242
in Executive Session on 6 March 2003, under the provisions of AFI  36-
2603:

      Mr. Joseph A. Roj, Panel Chair
      Ms. Barbara J. White-Olson, Member
      Mr. Roscoe Hinton, Jr., Member

The following documentary evidence was considered:

    Exhibit A.  DD Form 149, dated 29 Jul 02, w/atchs.
    Exhibit B.  Applicant's Master Personnel Records.
    Exhibit C.  Memorandum, AFLSA/JAJM, dated 18 Nov 02
                w/atchs.
    Exhibit D.  Letter, SAF/MIBR, dated 6 Dec 02.
    Exhibit E.  Letter, Applicant, dated 14 Dec 02, w/atchs.




                                   JOSEPH A. ROJ
                                   Panel Chair