RECORD OF PROCEEDINGS
             AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS


IN THE MATTER OF:      DOCKET NUMBER: BC-2003-00080

            COUNSEL:  NONE

            HEARING DESIRED:  NO


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APPLICANT REQUESTS THAT:

His discharge be upgraded to general (under honorable conditions).

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THE APPLICANT CONTENDS THAT:

He was a small town country  boy  who  had  never  been  anywhere  prior  to
entering the military and got mixed up with the wrong group  of  people  who
got him in trouble.

The applicant states that he was unjustly treated at  Loring  AFB,  ME,  and
led to believe that his discharge was to be upgraded  to  a  general  (under
honorable conditions).  Prior to entering the  service,  and  since  leaving
the service, he has had a  clean  record.   He  thought  his  discharge  had
already been upgraded and only discovered recently while attempting to  seek
treatment through the Department of Veterans Affairs (DVA) that it  had  not
been upgraded.

Since his discharge 29 years ago, he has worked and raised one daughter  who
is 27 and married.  He is currently raising another daughter who is 7  years
old.  He was recently laid off due to a lack of work  in  his  area.   As  a
result, he now has no life or health insurance and really needs DVA  medical
benefits.

In support of the appeal, the applicant submits a copy of his DD  Form  214,
Report of Separation from Active Duty.

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

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STATEMENT OF FACTS:

The applicant enlisted in the Regular Air Force on 26 December  1972  for  a
period of four years.

On 30 October 1974, he was tried by a general court-martial  on  charges  of
stealing military property, in violation of Article 121 of the Uniform  Code
of Military Justice (UCMJ).  Specifically, for stealing three MD-1  Survival
Kits and two ML-4 Survival Kits for a total value of more than $500.00.   He
was found guilty in a trial by judge alone  and  was  sentenced  to  a  bad-
conduct discharge (BCD),  confinement  at  hard  labor  for  twelve  months,
forfeiture of $220.00 per month for twelve  months,  and  reduction  to  the
grade of airman basic.

On 3  January  1975,  the  convening  authority  approved  the  sentence  as
adjudged except for that portion regarding execution of  the  BCD  that  was
suspended until 2 January 1976.

His conviction and sentence was affirmed by  the  United  States  Air  Force
Court of Military Review on 7 March 1975.

On 25 April 1975, the remaining period of confinement and  forfeitures  were
suspended by the Commander,  Lowery  Technical  Training  Center,  until  24
August 1975 and he was returned to active duty at Loring AFB, ME.

The 42nd Combat Support  Group  Commander  directed  a  probation  violation
hearing be conducted in accordance with Article 72,  UCMJ,  on  18  November
1975, as a result of allegations  that  the  applicant  had  threatened  his
immediate supervisor.   The  hearing  was  held  on  24  November  1975  and
resulted in a determination that he  had  violated  his  probation  and  the
suspension of his BCD was vacated.   He  appealed  the  vacation  and  after
considering his personal presentation, the commander denied his appeal.

On 23 December 1975, the suspended BCD was vacated  and  he  was  discharged
with service characterized as  under  other  than  honorable  conditions  on
24 December 1975 and issued a DD Form 259AF, BCD Certificate.  He  completed
2 years, 5 months, and 8 days active service, which  excludes  193  days  of
lost time (15 days pretrial confinement 5 Aug 74 - 19 Aug 74, and  178  days
confinement 30 Oct 74 - 25 Apr 75).

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AIR FORCE EVALUATION:

AFLSA/JAJM recommends the application be denied and states,  in  part,  that
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.  He had the assistance of  counsel  and  was  afforded  all  rights
granted by statute and regulation.  He provides no compelling  rationale  to
mitigate the approved punitive discharge  given  the  circumstances  of  the
case.

AFLSA/JAJM also states that while clemency is an option, there is no  reason
to exercise such consideration.  Clemency was granted to the applicant as  a
result of the convening  authority’s  action  suspending  the  BCD  until  2
January 1976.  In addition, while he was  serving  his  sentence  at  Lowery
Technical Training  Center,  his  commander  remitted  his  confinement  and
forfeitures and he was returned to active duty.

The AFLSA/JAJM evaluation is at Exhibit C.

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APPLICANT’S REVIEW OF AIR FORCE EVALUATION:

The applicant states that he never stole the kits and was  deceived  by  the
person that actually stole the kits that the kits were out of date.  He  was
in possession of them; however, he never stole them.  His  lawyer  told  him
that if he pled guilty, he would just get a year of confinement and a  fine;
whereas, if he did not, he could face 20 years of confinement.  Despite  the
fact that he did not take the kits, he did as his lawyer advised.

In regard to  his  treatment  at  Loring  AFB,  the  applicant  states  that
everyone was prejudiced against him because he was guilty  of  stealing  the
survival kits.  Furthermore, the commander told him to his face that he  was
prejudiced against him because he was a pilot.

The applicant’s complete response is at Exhibit E.

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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 and noting the applicant’s complete  submission,  we  are
not  persuaded  that  a  change  to  his  characterization  of  service   is
warranted.  The  comments  of  the  Air  Force  Legal  Services  Agency  are
supported by the evidence of record.  We find no evidence of error  in  this
case and after thoroughly reviewing  the  evidence  of  record,  we  do  not
believe he  has  suffered  from  an  injustice.   Therefore,  based  on  the
evidence of record, we find no basis upon which to favorably  consider  this
application.

4.  We also find insufficient evidence to warrant a recommendation that  the
discharge be upgraded on the basis of  clemency.   We  have  considered  the
service member's overall quality of service, the  events  that  precipitated
the  discharge,  and  available  evidence  related   to   his   post-service
activities  and  accomplishments.   On  balance,  we  do  not  believe  that
clemency is warranted.

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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.

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The following members of the Board considered  Docket  Number  BC-2003-00080
in Executive Session on 22 May 2003, under the provisions of AFI 36-2603:

                       Mr. Richard A. Peterson, Panel Chair
                       Mr. Laurence M. Groner, Member
                       Ms. Jean A. Reynolds, Member

The following documentary evidence was considered:

    Exhibit A.  DD Form 149, undated, w/atchs.
    Exhibit B.  Applicant's Master Personnel Records.
    Exhibit C.  Letter, AFLSA/JAJM, dated 6 Mar 03.
    Exhibit D.  Letter, SAF/MRBR, dated 28 Mar 03.
    Exhibit E.  Letter, Applicant, dated 13 Apr 03.




                                   RICHARD A. PETERSON
                                   Panel Chair