RECORD OF PROCEEDINGS
         AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS


IN THE MATTER OF:      DOCKET NUMBER:  BC-2003-00676
            INDEX CODE:  A68.00

            COUNSEL:  NONE

            HEARING DESIRED:  NO


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APPLICANT REQUESTS THAT:

The type of court-martial he received be changed.

His bad conduct discharge (BCD) be upgraded.

(Examiner's Note:  Although not  specifically  requested,  it  appears
that the applicant also desires that his BCD be upgraded).

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APPLICANT CONTENDS THAT:

He was given a general court-martial while  three  other  airmen  were
given special courts-martial and received lesser punishments  for  the
exact same charges of falsifying their travel vouchers.

His discharge was inequitable because his punishment did not  fit  the
crime.

Because of his immaturity at the time of the crime, he asks  that  the
Board strongly consider him for a change of his records so that he may
continue on with his life and become a productive member of  the  work
force.  He has never before had a problem in the  military  concerning
his work performance.

In support of his  appeal,  the  applicant  provided  a  copy  of  his
separation document.

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 24  Jan  94  for  a
period of four years in the grade of airman.  He received two Enlisted
Performance Reports (EPRs) in which he received overall ratings  of  3
and 1 (1-5 (Highest)).  Both reports were referral reports.

On 5 Nov 96, the applicant was  tried  by  general  court-martial  for
conspiring with three other airmen to steal military property  in  the
amount of $100.00; two specifications of filing a false claim  against
the United States in the amount of $975.00, in  that  he  over-claimed
his rental expenses; signing a false official record  with  intent  to
deceive, in that he overclaimed the rental expenses  he  had  actually
paid by about $975.00; stealing military  property  of  a  value  over
$100.00; unlawfully striking his wife in the face with his hand;  and,
of dishonorable failure to pay a just debt incurred on his  government
charge card.  He was not found guilty of striking his  wife,  but  was
found guilty of all other charges and specifications.   The  applicant
was sentenced to a BCD, confinement for six months, and forfeitures of
all pay and  allowances.   On  23  Jan  97,  the  convening  authority
approved the sentence as adjudged but waived $200  per  month  of  the
approved forfeitures pursuant to Article 58a, Uniform Code of Military
Justice (UCMJ) and directed that the waived  amount  be  paid  to  the
applicant's wife for her benefit and that of their minor child.

On 1 Mar 99, the approved sentence of the general court-martial having
been affirmed, the applicant’s discharge was ordered  into  execution.
He was discharged on that date with a BCD.  He was credited with  five
years, one month, and eight days of active service.

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AIR FORCE EVALUATION:

AFLSA/JAJM recommended denial.  They noted the applicant's contentions
that he and his three co-conspirators  were  charged  with  “the  same
exact offenses”; that  they,  unlike  the  applicant,  were  tried  at
special (rather  than  general)  courts-martial;  and  that  each  co-
conspirator received lesser punishments than he did.  Accordingly,  he
claimed that he was  unfairly  “treated  differently  than  the  other
individuals” involved and that difference (in some undefined way)  has
cost him “the ability  to  find  gainful  employment.”   According  to
AFLSA/JAJM, the applicant’s claims were incorrect.  At least one other
conspirator was tried at a general court-martial and received a longer
sentence of confinement (eleven months) than the applicant.  At  least
two co-conspirators, like the applicant, received BCDs.  Of  the  four
conspirators,  the  applicant  alone  was   charged   with   unrelated
misconduct--the  additional  offenses  of  assault  and   dishonorable
failure to pay a just debt.

Factual inaccuracies notwithstanding, AFLSA/JAJM  indicated  that  the
applicant’s chief contention appears to be that his case was  unfairly
referred to a general (not special) court-martial.   However,  he  did
not state how the choice of that particular  forum  unjustly  or  even
negatively impacted his situation.   The  Manual  for  Courts-Martial,
Rule for Courts-Martial 306, requires  that  a  commander  consider  a
member’s  service  record,  conduct,  and  the  circumstances  of  the
suspected offenses  before  deciding  on  the  appropriate  forum  for
disposition of a case.  After  considering  these  factors,  Rule  for
Courts-Martial 306(c) gives each commander the discretion  to  dispose
of  alleged  offenses  by  taking  no  action,   handling   the   case
administratively, notifying the  offender  of  his  intent  to  impose
nonjudicial punishment under Article 15, or  preferring  court-martial
charges. The convening authority has similar obligations and authority
as well.

Although procedural differences exist, the most significant difference
between a special and  a  general  court-martial  is  the  quantum  of
punishment that each is authorized to impose for a particular offense.
 With respect to the charges  preferred  against  the  applicant,  the
maximum punishments  theoretically  authorized  at  a  general  court-
martial were substantially greater than those authorized for the  same
offenses at a special court-martial.   However,  the  actual  sentence
about which the applicant complains--a bad conduct discharge  and  six
months  confinement--was  within  the  sentencing  authority  of  both
special and general courts-martial.  The applicant did not mention the
only aspect of his sentence which  would  have  been  different  at  a
special court-martial--forfeitures.  The applicant  was  sentenced  to
forfeit all his pay and allowances.  At a special  court-martial,  the
maximum forfeiture that may be adjudged is two-thirds  pay  per  month
for six months.  In clemency, the applicant asked for relief  to  help
his wife pay the bills.  In response, the convening  authority  waived
$200 pay per month for the benefit of  the  applicant’s  family.   The
applicant did not contend that he suffered an injustice as a result of
the sentence to forfeitures.

AFLSA/JAJM stated that while the applicant apparently feels  that  his
sentence was too harsh, the  maximum  punishment  authorized  for  the
offenses  was  a  dishonorable  discharge,  35  years  and  6   months
confinement and total forfeitures.  The military judge considered  the
facts and circumstances of the offense  and  the  applicant’s  overall
military record.  That  record  included  letters  of  reprimand,  two
Article 15’s, and a prior civilian  conviction.   The  military  judge
also  considered  all  the  evidence  of  extenuation  and  mitigation
presented when deciding on an appropriate sentence.   The  applicant’s
sentence was tailored to him as an individual and  to  the  facts  and
circumstances of his case.  Each person is unique, and  each  case  is
unique.  The applicant’s background, prior misconduct, and  individual
charges were not identical to that of his  co-conspirators.   By  most
objective standards, they may well have been  worse.   Notwithstanding
that fact, the applicant (despite his factually inaccurate  assertions
to the contrary) was not the only conspirator tried at a general court-
martial and not the only one  to  receive  a  bad  conduct  discharge.
Clearly, he was not singled out for unjust  and  disparate  treatment.
Standing alone, his sentence was not unduly harsh given his misconduct
and his background.  Compared to his fellow  conspirators’  sentences,
the applicant’s sentence was not even the most severe.

In any event, 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.  The applicant was granted some clemency in the form  of  a
partial waiver of forfeitures.  The applicant was  thus  afforded  all
rights granted by statute and regulation.  The applicant  provided  no
compelling rationale to mitigate the approved punitive discharge given
the circumstances of the case.

AFLSA/JAJM indicated that the applicant conspired with other  military
members to defraud the government and  steal  military  property.   He
enriched himself at the government’s  expense  at  the  same  time  he
dishonorably failed to pay a just  debt  incurred  on  his  government
credit card.  For those offenses  (and  the  alleged  assault  on  his
wife), the applicant  was  tried  by  a  general  court-martial.   The
convening  authority  found  that  forum  appropriate  based  on   the
applicant’s prior misconduct, the failure of prior rehabilitative  and
other  intermediate  disciplinary  measures,  and  the   breadth   and
seriousness of the offenses alleged.   Given  the  maximum  punishment
authorized, the sentence was well within  the  legal  limits  and  was
appropriate punishment for the offenses committed.

According to AFLSA/JAJM, the military judge and the Air Force Court of
Criminal Appeals were convinced of  the  applicant’s  guilt  beyond  a
reasonable doubt.  He did not then and  does  not  now  claim  factual
innocence  or  legal  error.   His  sentence  was  appropriate.    The
applicant  did  not  serve  this  enlistment  honorably.   There   are
consequences for criminal behavior.   The  military  judge,  convening
authority and the appellate court believed a BCD  was  an  appropriate
consequence that accurately characterized his military service and his
crimes.  The applicant has provided no evidence of a  clear  error  or
injustice related to  the  sentence.   He  presented  no  evidence  to
warrant upgrading the BCD, nor has he demonstrated an equitable  basis
for relief.

A complete copy of the AFLSA/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  applicant  on  16
May 03 for review and response.  As of this date, no response has been
received by this office (Exhibit D).

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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.   We  note  that  this  Board  is
without authority to reverse, set aside, or otherwise expunge a court-
martial conviction.  Rather,  in  accordance  with  Title  10,  United
States Code, Section 1552(f), actions by this  Board  are  limited  to
corrections to the record to reflect actions taken  by  the  reviewing
officials and action on the sentence  of  the  court-martial  for  the
purpose of clemency.  There is nothing in the evidence provided, other
than the applicant’s unsubstantiated allegations, which would lead  us
to believe that a change to  the  actions  of  any  of  the  reviewing
officials is warranted.  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 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 BCD based
on clemency is appropriate in this case at this time.  In view of  the
foregoing, we agree with the opinion prepared by AFLSA/JAJM and  adopt
their rationale as the basis for our decision that the  applicant  has
failed to sustain his burden of  establishing  that  he  has  suffered
either an error or an injustice.  Accordingly, we find  no  compelling
basis to recommend favorable consideration of 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-
2003-00676 in Executive Session on 22 Jul 03, under the provisions  of
AFI 36-2603:

      Mr. Gregory H. Petkoff, Panel Chair
      Ms. Carolyn B. Willis, Member
      Mr. James A. Wolffe, Member

The following documentary evidence was considered:

    Exhibit A.  DD Form 149, dated 10 Mar 03, w/atchs.
    Exhibit B.  Applicant's Master Personnel Records.
    Exhibit C.  Letter, AFLSA/JAJM, dated 30 Apr 03.
    Exhibit D.  Letter, SAF/MRBR, dated 16 May 03.




                                   GREGORY H. PETKOFF
                                   Panel Chair