RECORD OF PROCEEDINGS
             AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS


IN THE MATTER OF:      DOCKET NUMBER: 02-02636

            COUNSEL:  NONE

            HEARING DESIRED:  NO


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APPLICANT REQUESTS THAT:

His discharge be upgraded.

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THE APPLICANT CONTENDS THAT:

He joined the Air Force for a career; however, during his tour  in  Germany,
his  parents  became  financially  dependent  upon  him,  and  required  his
immediate presence.

The applicant states that he was  told  by  fellow  servicemembers  that  by
wrongfully committing the  offenses  leading  to  his  discharge,  he  could
quickly get out of the Air Force and go home.  He was immature at the  time.
 He regrets his actions, and is sincerely sorry for what he  has  done.   He
was also told by his counsel that after 3 to 5 years, his type of  discharge
would be upgraded to a “general discharge with intentions.”

Applicant’s complete submission is at Exhibit A.

_________________________________________________________________

STATEMENT OF FACTS:

On 18 September 1973, the applicant enlisted in the Regular Air Force for  a
period of four years.

On 15 January 1974, the commander notified  him  of  his  intent  to  impose
nonjudicial punishment under Article 15 of  the  Uniform  Code  of  Military
Justice (UCMJ) for violating Article 86.  Specifically, that on or about  13
January 1974,  at  Lackland  AFB,  Texas,  he  failed  to  go  at  the  time
prescribed to his appointed place of duty.  He waived his right to  a  trial
by  court-martial  and   accepted   the   nonjudicial   punishment.    After
considering his presentation, the commander determined that  he  did  commit
the  alleged  offense  and  imposed  nonjudicial  punishment  consisting  of
reduction to the grade of airman basic and forfeiture of  $50.00.   However,
the portion of the punishment, which provided for reduction  in  grade,  was
suspended until 15 April 1974, at which time it would  be  remitted  without
further action.

On 7 June  1977,  the  commander  notified  him  of  his  intent  to  impose
nonjudicial punishment under Article 15 of  the  Uniform  Code  of  Military
Justice (UCMJ) for violating Article 121.  Specifically, that  on  or  about
27 May 1977, at Rhein-Main AB, Germany, he  stole  a  cassette  tape,  of  a
value of about $5.50, the property of the Army Air  Force  Exchange  Service
(AAFES).  After consulting with military  legal  counsel,  he  accepted  the
nonjudicial punishment and made  an  oral  presentation  to  the  commander.
After considering his presentation, the commander  determined  that  he  did
commit the alleged offense and imposed nonjudicial punishment consisting  of
reduction to the grade of airman  first  class  and  forfeiture  of  $25.00.
However, the portion of the punishment,  which  provided  for  reduction  in
grade, was suspended until 5 December  1977,  at  which  time  it  would  be
remitted without further action.

On 22 and 23 September 1977, he  was  tried  by  special  court-martial  for
larceny and making a false official statement.  Specifically,  for  stealing
a case containing 60 cartons of cigarettes from the Base  Exchange,  fleeing
on foot and leaving his car, and then reporting to the security police  that
his car was stolen to establish  an  alibi.   He  pled  not  guilty  to  the
charges, but was convicted of both offenses.  He was sentenced to  reduction
to the grade of airman basic and to receive a Bad Conduct Discharge (BCD).

The convening authority disapproved the finding of guilty to making a  false
official statement, but approved the sentence.

The  Air  Force  Court  of  Military  Review  affirmed   the   court-martial
conviction and sentence.

The United States Court of Military Appeals denied review of the  case,  and
on 16 August 1978, the BCD was ordered executed.

On 22 September 1978, the applicant was discharged under the  provisions  of
AFR  39-12,  with  service  characterized  as  under  other  than  honorable
conditions, and issued a DD Form 259AF (BCD Certificate).   He  completed  5
years, 1 months, and 5 days of active service.

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AIR FORCE EVALUATIONS:

AFLSA/JAJM recommends the application  be  denied.   AFLSA/JAJM  states,  in
part, that given the serious nature of the offenses involved -  larceny  and
false official statement - a court-martial was an  appropriate  forum.   The
sentence was well within the legal limits and was an appropriate  punishment
for the offense of larceny.  His court-martial was  properly  conducted  and
he was afforded all the rights accorded by law.  AFLSA/JAJM notes  that  the
court-martial did not adjudge confinement or any forfeiture of  pay.   While
the applicant contends that he was immature at the time, he  was  almost  28
years old at the time.  He has provided no evidence  of  a  clear  error  or
injustice related to the sentence  and  presents  insufficient  evidence  to
warrant upgrading his BCD.

AFLSA/JAJM states  that  the  Board’s  authority  to  correct  court-martial
records is limited to correction of a record to reflect  the  actions  taken
by reviewing authorities under the UCMJ and to take action on  the  sentence
for the purpose of clemency.

AFLSA/JAJM notes 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 trial or  completion  of  sentence,  and  the  decision  to  grant  or
withhold such pardons is made primarily on the basis of  post-trial  conduct
and citizenship.

The AFLSA/JAJM evaluation is at Exhibit C.

AFPC/DPPRS recommends the application be denied, and states, in  part,  that
the  discharge  was  consistent  with   the   procedural   and   substantive
requirements of the discharge regulation, and within the discretion  of  the
discharge authority.  The applicant did  not  submit  any  new  evidence  or
identify  any  errors  or  injustices  that  occurred   in   the   discharge
processing.

The AFPC/DPPRS evaluation is at Exhibit D.

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APPLICANT’S REVIEW OF AIR FORCE EVALUATIONS:

Complete  copies  of  the  Air  Force  evaluations  were  forwarded  to  the
applicant on 20 December 2002  for  review  and  response  within  30  days.
However, as of this date, this office has received no response.

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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 a thorough review  of  the  evidence
of record and applicant’s submission,  we  are  not  persuaded  that  relief
should be granted.  Applicant’s contentions are duly noted; however,  we  do
not find these assertions, in and by themselves, sufficiently persuasive  to
override the rationale provided by the  Air  Force.   The  Air  Force  Legal
Services Agency,  Military  Justice  Division  (AFLSA/JAJM)  has  adequately
addressed applicant’s contentions and we agree with their opinion 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.  Hence, we find no compelling basis  to  recommend  granting  the
relief sought.

_________________________________________________________________

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  BC-2002-02636
in Executive Session on 13 March 2003 under the provisions of AFI 36-2603:

                       Mr. David W. Mulgrew, Panel Chair
                       Mr. Billy C. Baxter, Member
                       Mr. Clarence D. Long, III, Member

The following documentary evidence was considered:

    Exhibit A.  DD Form 149, dated 11 Aug 02, w/atchs.
    Exhibit B.  Applicant's Master Personnel Records.
    Exhibit C.  Letter, AFLSA/JAJM, dated 5 Nov 02.
    Exhibit D.  Letter, AFPC/DPPRS, dated 4 Dec 02.
    Exhibit E.  Letter, SAF/MRBR, dated 20 Dec 02.




                                   DAVID W. MULGREW
                                   Panel Chair