RECORD OF PROCEEDINGS
         AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS


IN THE MATTER OF:      DOCKET NUMBER:  BC-2002-03796
            INDEX CODE:  A87.00

            COUNSEL:  NONE

            HEARING DESIRED:  NO


_________________________________________________________________

APPLICANT REQUESTS THAT:

His  dishonorable  discharge  be  upgraded  to  a  bad  (BCD)  conduct
discharge.

His sentence to confinement be reduced from 21 years to 15 years.

His military records be  corrected  to  properly  reflect  he  has  no
convictions for assault.

_________________________________________________________________

APPLICANT CONTENDS THAT:

His military records improperly reflect two counts  of  assault  under
Article 128, Uniform Code of Military Justice (UCMJ).

In  support  of  his  appeal,  the  applicant  provided  an   expanded
statement.

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

_________________________________________________________________

STATEMENT OF FACTS:

The applicant enlisted in the Regular Air Force on 12 Dec  90  in  the
grade of airman basic for a period of four years.  He was dishonorably
discharged on 24 Jul 98 as a result of his conviction by general court-
martial for murder and animal torture.

On  14  Mar  01,  the  Board  considered  and  denied  an  application
pertaining  to  the  applicant,  in  which  he  requested   that   his
dishonorable discharge be upgraded and his court-martial conviction be
set aside (Exhibit C).

The remaining  relevant  facts  pertaining  to  this  application  are
contained in the previous Board's Record of Proceedings and the letter
prepared by the appropriate office of the Air Force.

_________________________________________________________________

AIR FORCE EVALUATION:

AFLSA/JAJM recommended denial noting that the  applicant  was  charged
with the following UCMJ violations arising out  of  the  same  act  in
which the applicant violently shook his daughter on 2 Mar 1993,  which
caused her death:   murder  (Article  118(2)),  manslaughter  (Article
119), negligent homicide  (Article  134),  assault  consummated  by  a
battery upon a child (Article 128), and assault with a force likely to
produce grievous bodily harm (Article 128).  The murder,  manslaughter
and negligent homicide charges were pleaded in the alternative;  i.e.,
the court members were directed to enter findings as to  only  one  of
those charges.  In addition, the  applicant  was  charged  with  three
specifications of maliciously torturing his cat and dog, in  violation
of Article 134, UCMJ.  Contrary to his pleas, the  members  found  the
applicant guilty of murder, both of  the  assaults,  and  all  of  the
animal torture specifications.  They issued  no  findings  as  to  the
manslaughter and negligent homicide charges.

On 12 Jul  96,  the  Air  Force  Court  of  Criminal  Appeals  (AFCCA)
considered whether the  assault  specifications  were  “multiplicious”
with  the  unpremeditated  murder  charge.   The   Court   noted   the
applicant’s defense counsel failed to object as multiplicious  to  the
specification of assault consummated by a battery on a child under  16
years, and, therefore, found the applicant forfeited this  issue.   As
to the specification of assault with a force likely to cause  grievous
bodily harm, the Court found it  was  a  lesser  included  offense  of
unpremeditated murder.  Based on  that  finding,  it  set  aside  that
assault specification.  Because it determined that  the  dismissal  of
the one assault specification would have  had  little  impact  on  the
sentence, the Court affirmed the sentence as approved.

On 24 Jun 97, the  Court  of  Appeals  for  the  Armed  Forces  (CAAF)
disagreed with AFCCA’s determination that the applicant forfeited  the
issue  of  multiplicity  regarding  the   specification   of   assault
consummated by a battery on a child under 16 years.  Accordingly, CAAF
set aside AFCCA’s decision, remanding it for further review.

AFLSA/JAJM indicated that when AFCCA considered the applicant’s case a
second time, the applicant brought up another  error.   The  applicant
alleged that the staff  judge  advocate’s  recommendation  incorrectly
advised the convening authority the court-martial made  “no  findings”
as to the two assault specifications.  AFCCA agreed and, on 1 Oct  97,
set aside the remaining assault charge, thus mooting the  multiplicity
issue.

According to AFLSA/JAJM, the applicant’s  military  personnel  records
accurately  reflect  his  convictions.   After   appeals   have   been
exhausted, evidence of a court-martial conviction are promulgated in a
final court-martial order.   The  applicant’s  Unit  Personnel  Record
Group contains copies of General Court-Martial Order No. 122, dated 21
July 1998.  This court-martial order states “the findings of guilty of
specifications 1 and 2 of Charge IV and Charge IV have been set  aside
and dismissed.” (Charge IV consisted of the  assault  specifications.)
Therefore, the  applicant’s  military  records  properly  reflect  the
violations of Article 128 were set aside  and  dismissed.   They  have
identified no military record that is in error, and the applicant  has
submitted no evidence of error.

In AFLSA/JAJM's view, there  is  no  legal  basis  for  upgrading  the
applicant’s  discharge.   The  appropriateness  of   the   applicant’s
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
statute  and  regulation.   The  applicant  provided   no   compelling
rationale to mitigate the approved dishonorable  discharge  given  the
circumstances of the case.

AFLSA/JAJM stated that while clemency is an option, there is no reason
for the Board to exercise clemency in this case.   The  applicant  did
not serve this  enlistment  honorably.   There  are  consequences  for
criminal behavior--the court  members,  convening  authority  and  the
appellate courts believed 21 years of confinement and  a  dishonorable
discharge were appropriate consequences for his crimes.   Moreover,  a
dishonorable discharge accurately characterizes his military  service.
The applicant has provided no evidence of a clear error  or  injustice
related  to  the  sentence.   The  applicant  presented   insufficient
evidence to warrant upgrading the dishonorable discharge, and does not
demonstrate an equitable basis for relief.

A complete copy of the AFLSA/JAJM evaluation is at Exhibit D.

_________________________________________________________________

APPLICANT'S REVIEW OF AIR FORCE EVALUATION:

In his response, the applicant indicated that  he  is  not  requesting
clemency,  but  "administrative  sentence  credit"  for  due   process
violations which have occurred as a result of his records not properly
reflecting the "confining offenses" and the  proper  opinions  of  the
military courts.  He requests that the Board grant relief in the  form
of administrative sentence credit,  discharge  upgrade,  and  that  it
ensures that his records is corrected and  upgraded  with  the  proper
information so that the various due process violations do not occur in
future proceedings.

Applicant's complete response is at Exhibit F.

_________________________________________________________________

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 be dishonorably discharged and to be confined
for 21 years as a result of his conviction  by  general  court-martial
for murder and animal torture.  Although he contends that his military
records improperly reflect two counts of assault  under  Article  128,
UCMJ, we note that the assaults charges were set aside.  Therefore, we
are of the opinion that his military records  now  accurately  reflect
his convictions.  We also find no evidence which  indicates  that  the
applicant’s service characterization,  which  had  its  basis  in  his
conviction by general court-martial and was a part of the sentence  of
the military court, 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 and the serious nature of the offenses committed, we do not
find upgrading the applicant’s dishonorable discharge or reducing  his
sentence to confinement based on clemency is 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-
2002-03796 in Executive Session on 13 May 03, under the provisions  of
AFI 36-2603:

      Mr. Michael K. Gallogly, Panel Chair
      Mr. John B. Hennessey, Member
      Mr. E. David Hoard, Member

The following documentary evidence was considered:

    Exhibit A.  DD Form 149, dated 28 Oct 02, w/atch.
    Exhibit B.  Applicant's Master Personnel Records.
    Exhibit C.  Record of Proceedings, dated 30 Mar 01, w/atch.
    Exhibit D.  Letter, AFLSA/JAJM, dated 13 Feb 03.
    Exhibit E.  Letter, SAF/MRBR, dated 28 Feb 03.
    Exhibit F.  Letter, applicant, dated 12 Mar 03.




                                   MICHAEL K. GALLOGLY
                                   Panel Chair