RECORD OF PROCEEDINGS
             AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS

IN THE MATTER OF:                       DOCKET NUMBER:  BC-2003-00381
                                       INDEX CODE:  110.02
      XXXXXXXXXXXXXXXXXXXX              COUNSEL: NONE

      XXXXXXXXXXXXXX                    HEARING DESIRED:  YES

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APPLICANT REQUESTS THAT:

His bad conduct discharge (BCD) be upgraded to general.

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APPLICANT CONTENDS THAT:

He is interested in cleaning up his past and wishes to  be  eligible  to  be
buried at Jefferson Barracks Memorial where his father is buried.

In support of his application, he provided a personal statement and  several
documents  evidencing  his  post-trial  achievements.    A   copy   of   the
applicant’s complete submission with attachments is at Exhibit A.

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STATEMENT OF FACTS:

On 4 March 1987, the applicant enlisted in the Regular Air Force at the  age
of 25 in the grade of airman first class (E-3) for a period of  four  years.
The applicant  was  trained  in  Air  Force  Specialty  Code  (AFSC)  2S051,
Receiving Technician.  The applicant received  eleven  enlisted  performance
reports from the period 4 March 1987 to 9 April 1997  with  overall  ratings
of 9, 9, 8, 4, 4, 5, 4, 4, 4, 5, and 5.  The applicant was awarded  the  Air
Force Commendation Medal, Air Force Good Conduct Medal  with  two  oak  leaf
clusters, National Defense Service Medal, Air  Force  Longevity  Award  with
one device, Air Force Achievement Medal, NCO PME Graduate Ribbon, Air  Force
Outstanding Unit Award, and the Air Force Training Ribbon.  He  served  from
2 August 1990 through 30  November  1995  in  support  of  Operation  Desert
Storm/Shield.

The applicant, while serving in the grade of staff sergeant,  was  convicted
of larceny by a special court-martial on 26 January 1996 for shoplifting  at
a Base Exchange.  He pled and was found guilty, and was sentenced to  a  bad
conduct discharge, confinement for 2  months,  and  reduction  in  grade  to
airman basic.  The convening authority approved the sentence,  as  adjudged;
then, on 24 September 1996, suspended  the  execution  of  the  bad  conduct
discharge because the  applicant  was  accepted  into  the  Return  to  Duty
Program.  Because the applicant successfully completed the  Return  to  Duty
Program, the bad conduct discharge was remitted on 6 September 1997.

On 28 May 1997, the applicant applied to the Air Force Board for  Correction
of Military Records requesting restoration of  his  rank  to  the  grade  of
staff sergeant and a two-year waiver for his high year of  tenure  (HYT)  so
he would have the opportunity to test for  non-commissioned  officer  status
to meet HYT qualifications.  On 16 September  1997,  the  Board  denied  the
applicant’s request for grade restoration; however, they did approve  a  HYT
waiver to allow the  applicant  to  have  sufficient  time  to  compete  for
promotion to the grade of staff sergeant.

On 27 May 1998, the applicant was  tried  by  a  general  court-martial  for
charges of larceny, in violation of Article 121 of the UCMJ for the  offense
of shoplifting at the Base Exchange.  The  applicant  pled  guilty  and  was
found guilty.  The military judge sentenced the applicant to receive  a  bad
conduct discharge, be confined for 9 months, and  be  reduced  in  grade  to
airman basic.  On  26  June  1998,  the  convening  authority  approved  the
sentence.  On 24 November 1998, the Air  Force  Court  of  Criminal  Appeals
affirmed the findings of  guilty  and  the  sentence.   The  U.S.  Court  of
Appeals for the Armed Forces denied the applicant’s petition for a grant  of
review on 17 March 1999.  The applicant was separated  with  a  bad  conduct
discharge on 16 April 1999.  The applicant had served 9 years, 1 month,  and
27 days on active duty.  His  time  lost  was  1086  days  due  to  military
confinement.

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AIR FORCE EVALUATION:

AFLSA/JAJM recommends denial.  JAJM states the applicant was  given  a  rare
opportunity to return to the Air Force instead  of  being  discharged  after
his first offense.   However,  the  applicant  committed  the  same  serious
offense a second time after  rehabilitation.   As  such,  a  general  court-
martial was an appropriate forum.  The  maximum  punishment  authorized  for
the  offense  of  which  the  applicant  ultimately  was  convicted  was   a
dishonorable discharge, confinement for five years, forfeiture  of  all  pay
and allowances, and reduction to the  grade  of  airman  basic  (E-1).   The
sentence he received was well within the legal limits and  the  bad  conduct
discharge was appropriate punishment for the offense committed.

While clemency is an option, there is no reason for the  Board  to  exercise
clemency in this case.  The applicant did not serve  honorably.   There  are
consequences  for  criminal  behavior  and  the  court  members,   convening
authority, and the Air Force  Court  of  Criminal  Appeals  believed  a  bad
conduct  discharge  was   an   appropriate   consequence   that   accurately
characterized his military service and his crime.  JAJM  believes  it  would
be unjust to change that characterization to one that hundreds of  thousands
of airmen, who have served honorably, also carry.  The applicant  was  given
a second chance to separate with an honorable discharge; however, he  failed
himself and the Air Force.  The applicant has provided  no  evidence  of  an
error or injustice related to  the  sentence.   He  also  fails  to  present
sufficient evidence to warrant upgrading  the  bad  conduct  discharge,  and
does not demonstrate an equitable basis for relief.  The JAJM evaluation  is
at Exhibit C.

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APPLICANT'S REVIEW OF AIR FORCE EVALUATION:

A copy of the Air Force evaluation was forwarded to the  applicant  on  11
April 2003 for review and comment.  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 probable error or  injustice.   The  applicant’s  bad  conduct
discharge had its basis in his trial and conviction  by  a  general  court-
martial and he has provided no evidence showing that the sentence  exceeded
the maximum punishment allowable based on  the  offense  of  which  he  was
convicted.  As to clemency, we do not believe that favorable  consideration
of this case on  that  basis  is  warranted.   Generally,  this  Board  may
favorably consider a request for clemency upon the submission  of  evidence
by an applicant showing he or she has overcome the behaviors  that  led  to
the  contested  separation  and  that  he  or   she   has   exhibited   the
characteristics of good citizenship over an extended period  of  time.   In
this case, based on the short period of time that  has  elapsed  since  his
separation, we  are  not  inclined  to  exercise  clemency  at  this  time.
Accordingly, the applicant’s request is not favorably considered.

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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 this application in  Executive
Session on 18 June 2003, under the provisions of AFI 36-2603:

            Mr. Thomas S. Markiewicz, Vice Chair
            Mr. Wayne R. Gracie, Member
            Mr. Billy C. Baxter, Member

The following documentary evidence for AFBCMR  Docket  Number  BC-2003-00381
was considered:

     Exhibit A.  DD Forms 149, dated 25 Jan 03.
     Exhibit B.  Applicant's Master Personnel Records.
     Exhibit C.  Letter, AFLSA/JAJM, dated 26 Mar 03.
     Exhibit D.  Letter, SAF/MRBR, dated 11 Apr 03.




                                  THOMAS S. MARKIEWICZ
                                  Vice Chair