RECORD OF PROCEEDINGS
             AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS


IN THE MATTER OF:      DOCKET NUMBER: BC-2002-04088
            INDEX CODE: 110.00

            COUNSEL:  NONE

            HEARING DESIRED:  NO


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APPLICANT REQUESTS THAT:

His bad conduct discharge be upgraded to an honorable discharge.

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APPLICANT CONTENDS THAT:

He indicates that the bad conduct discharge given to him was  an  injustice.
The court-martial record clearly indicates that he had no intent  to  desert
the Air Force.  He believes the discharge should  be  upgraded  due  to  the
unfair treatment and excessive sentence he received.  He states that  if  he
had had an experienced attorney he would not have  received  a  bad  conduct
discharge or confinement.

In support of his appeal, the applicant provided a  personal  statement  and
two character reference letters.

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

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STATEMENT OF FACTS:

Applicant enlisted in the Regular Air Force on 24 March 1965  in  the  grade
of airman basic for a period of four years.

On 19 May 1967, the applicant was convicted  by  General  Court-Martial  for
the following reasons:

Charge:  Violation of the Uniform Code Of Military Justice, Article 85.

Specification 1:  In that the applicant did on  or  about  10 October  1966,
without  proper  authority  and  with  intent  to  remain   away   therefrom
permanently, absent himself from his organization,  to  wit:   XXX  Tactical
Control Squadron, Myrtle Beach Air  Force  Base,  South  Carolina,  and  did
remain so absent in desertion until  he  was  apprehended  on  or  about  20
February 1967.

The applicant pleaded not guilty;  however,  he  was  found  guilty  to  the
specification and the charge.  He was sentenced to a bad conduct  discharge,
confinement at hard labor for 18 months, reduction to the  grade  of  airman
basic, and a forfeiture of $80.00 per month for 18 months.

On 26 April 1967, the sentence was adjudged.

The Air Force Court of Criminal Review reviewed the  applicant’s  conviction
because the sentence included a bad conduct discharge.   On  22  June  1967,
they affirmed the findings of guilty despite having found  one  error.   The
court reduced the forfeitures and period of confinement to  15  months.   On
27 November 1967 the convening authority at  the  Lowry  Technical  Training
Center suspended the bad conduct discharge  and  the  remaining  confinement
and forfeiture until 27 May 1968 at which time, unless  the  suspension  was
sooner vacated, the sentence  of  a  bad  conduct  discharge  and  remaining
confinement and forfeitures would be remitted without further action.

General Court-Martial Order #15, dated 29 February 1968 indicates  that  the
sentence to a  bad  conduct  discharge,  confinement  and  forfeitures  were
vacated and that the punishment would be executed.  However, so much of  the
sentence as pertained  to  confinement  and  forfeitures  only  as  remained
unexecuted on 11 March 1968 was remitted.

Applicant was discharged on 19 May 1967, in the grade of airman  basic  with
service characterized as under  other  than  honorable  conditions  (UOTHC),
under the provisions of General Court-Martial Order #11, dated 19  May  1967
and General Court-Martial Order #15, dated 29 February 1968.   He  served  1
year, 10 months, and 1 day total active military service with  407  days  of
lost time.

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AIR FORCE EVALUATION:

AFLSA/JAJM recommended denial.  They indicated that  while  clemency  is  an
option, there is no reason for the Board to exercise clemency in this  case.
 The applicant did not serve honorably.  He admittedly joined the Air  Force
to  avoid  being  drafted  into  the  Army.   Shortly  after  enlisting,  he
proceeded  on  a  course  of  conduct  leading  to  discharge.   There   are
consequences  for  criminal  behavior  -  the  military   judge,   convening
authority and the appellate court believed a bad conduct  discharge  was  an
appropriate consequence that accurately characterized his  military  service
and his crime.  The applicant’s recent  good  conduct  does  not  erase  his
misconduct in his last enlistment, which  appropriately  ended  with  a  bad
conduct discharge.  The applicant has provided no evidence of a clear  error
or injustice related to the sentence.

The applicant presents no evidence to warrant upgrading the discharge.   Nor
does he demonstrate an equitable basis for relief.   Yet  he  wants  his  DD
Form 214 to reflect the same character of  service  as  those  who  complete
their terms of enlistment and follow orders that separate them from  friends
and family for extended periods.  The applicant’s claim lacks merit  and  is
untimely.

The evaluation is at Exhibit C.

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APPLICANT'S REVIEW OF AIR FORCE EVALUATION:

On 7 March 2003, a copy of the Air Force evaluation  was  forwarded  to  the
applicant for review and response within 30  days.   As  of  this  date,  no
response has been received by this office.

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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 probable error or injustice.  After  thoroughly  reviewing  the
evidence of record, we  find  no  evidence  to  show  that  the  applicant’s
discharge as a result of his conviction by court-martial  was  erroneous  or
unjust.   The  applicant  contends,  among  other  things,  that  his  first
sergeant discriminated against him  and  confined  him  to  base  and  as  a
result, he went AWOL; and that if he had had  an  experienced  attorney,  he
would not have received a bad conduct discharge  or  confinement.   However,
he submits no persuasive evidence to support these contentions.  We  believe
his  offense  of  desertion  during  the  height  of  the  Vietnam  conflict
supported the service characterization he  received.   While  the  applicant
believes his bad conduct discharge should be  upgraded  due  to  the  unfair
treatment and excessive sentence he received,  we  note  that  the  approved
sentence of the military court was within the maximum punishment  authorized
by the Uniform Code of Military Justice (UCMJ) for  the  offense  for  which
the  applicant  was  convicted.   We  believe  it  is  significant  that   a
substantially harsher punishment was  authorized  under  the  UCMJ  for  the
offense of which the applicant stood convicted.  We note that the Air  Force
Court of Criminal Review affirmed the findings of  guilty  but  reduced  the
applicant’s confinement and forfeitures to 15 months.  It also appears  that
the convening authority suspended the bad conduct  discharge  and  remaining
punishment and would remit them  if  the  applicant  successfully  completed
retraining.  However, it appears that since  the  punishment  was  executed,
the  applicant  did  not  successfully  complete   retraining.    Therefore,
considering the extremely serious nature of his infraction,  we  agree  with
the opinion and recommendation of the Military Justice  Division  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.  The letters submitted in support of his request are duly  noted;
however, while we find his post-service  conduct  commendable,  we  are  not
persuaded by the evidence submitted in support of his appeal, that a  change
to his characterization of service is warranted on the basis of clemency.

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THE BOARD DETERMINES THAT:

The applicant be notified that the evidence presented  did  not  demonstrate
the existence of an error or an 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.

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The following members of the Board considered AFBCMR Docket Number  BC-2002-
04088 in Executive Session on 15 May 2003, under the provisions of  AFI  36-
2603:

                 Mr. Robert S. Boyd, Panel Chair
                 Mr. Grover L. Dunn, Member
                 Mr. James A. Wolffe, Member

The following documentary evidence was considered:

   Exhibit A.  DD Form 149, dated 20 December 2002, w/atchs.
   Exhibit B.  Applicant's Master Personnel Records.
   Exhibit C.  Letter, AFLSA/JAJM, dated 19 February 2003.
   Exhibit D.  Letter, SAF/MRBR, dated 7 March 2003.




                       ROBERT S. BOYD
                       Panel Chair