RECORD OF PROCEEDINGS
             AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS

IN THE MATTER OF:      DOCKET NUMBER:  BC-2003-01656

            COUNSEL:  NONE

            HEARING DESIRED:  YES

_________________________________________________________________

APPLICANT REQUESTS THAT:

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

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APPLICANT CONTENDS THAT:

It has been after 3 to 10 years since his discharge, and he  would  like  to
have veteran benefits or reenlist.

In support of his request, applicant provided copies of  DD  Form  214  from
active duty.

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

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STATEMENT OF FACTS:

The applicant enlisted in the Regular Air Force as  an  airman  basic  on  5
September 1986.  The applicant, then an airman basic, was assigned to the --
--  Civil  Engineering  Squadron  in   transitional   status,   pending   an
administrative discharge for minor disciplinary infractions  under  AFR  39-
10.   On  2  June  1990,  the  applicant  was  released  from  duty  for  an
appointment and failed to return to work on that day.   He  did  not  report
for duty for the next three days.  His regular unit,  Air  Force  Office  of
Special Investigations,  was  notified  of  the  absence.   The  applicant’s
dormitory roommate reported that the applicant had packed  and  departed  on
the evening of 26 June 1990.  On 28 June 1990, the applicant  contacted  his
commander and was ordered to report for duty on the following day  at  0800.
He did not report and efforts to locate him failed.  During a  traffic  stop
on Baltimore-Washington  Parkway,  U.S.  Park  Police  caught  up  with  the
applicant on 17 October 1990.  Identified as a deserter, he was turned  over
to military law enforcement and entered into pre-trial confinement.   During
his pre-trial hearing, the applicant attempted to escape  military  control,
in the process biting a security forces officer.

On 6 December 1990, the applicant was tried at a general court-martial at --
--  Air  Force  Base,  ---.   The  applicant  was  charged  with  desertion,
attempted escape from confinement while  attending  a  pretrial  confinement
hearing, and assault upon an NCO in the execution of his Air Force  Security
Police  duties,  in  violation  of  Articles  85,   80,   and   128,   UCMJ,
respectively.  The applicant chose to be tried by members,  pled  guilty  to
all  charges  and  specifications,  and  was  found  guilty.   The   members
sentenced  the  applicant  to  a  dishonorable  discharge,  confinement  for
nineteen months, and forfeiture of all pay and allowances.  On  14  February
1991,  the  convening  authority  approved   the   sentence,   but   reduced
confinement to fifteen months pursuant to a pretrial agreement.

Because  his  approved  sentence  included  a  dishonorable  discharge,  the
applicant’s convictions were reviewed by the United States Air  Force  Court
of Military Review.  On 15 October 1992, the Air  Force  Court  of  Military
Review affirmed the findings of guilty and the sentence,  holding  that  the
plea of the attempted escape was not improvident, that  the  military  judge
made no error  computing  the  pretrial  confinement  credit  and  that  the
sentence was not inappropriately severe.   The  applicant  appealed  to  the
U.S. Court of Military Appeals.   On  26  April  1993,  the  U.S.  Court  of
Military Appeals denied the applicant’s petition for review.  The  applicant
was separated with a dishonorable discharge on    10 June 1993.   He  served
6 months and 9 days of total active military service.

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AIR FORCE EVALUATION:

ALSA/JAJM recommends denial and states  that  at  the  time  of  the  court-
martial, the applicant was  22  years  old  and  had  over  three  years  of
service.  His service had been dotted with minor  disciplinary  infractions-
missing  appointments,  lateness  for  duty,  dereliction  of   duty.    His
commander was proceeding with an administrative  discharge.   The  applicant
had merely to wait out the discharge process to have his general  discharge,
when  he  went  absent  without  leave.   The  extent  of  the   applicant’s
subsequent misconduct is detailed in a three-page Stipulation of Fact.   The
applicant, his  defense  counsel  and  the  government  counsel  signed  the
stipulation as a true account  of  the  events,  which  led  to  the  court-
martial.  The maximum punishment authorized for the offenses for  which  the
applicant was convicted was a dishonorable discharge, confinement for  seven
years and forfeiture of all pay and allowances.  The applicant  was  already
an airman basic, so no reduction in rank was  possible.   The  sentence  was
well within the legal limits and  was  an  appropriate  punishment  for  the
offenses committed.

There  is  no  legal  basis  for  upgrading  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
statue and regulation.  In this case, the convening  authority  reduced  the
applicant’s sentence to confinement.  The applicant provides  no  compelling
rationale  to  mitigate  the  approved  dishonorable  discharge  given   the
circumstances of the case.

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.  The tone of his application suggests that, to this day,  he  has
not comprehended the gravity of his actions. At the time of  his  desertion,
he was pending an administrative discharge.  Instead,  the  applicant  faces
the  consequences  for  criminal  behavior—the  military  judge,   convening
authority and the appellate courts believed a dishonorable discharge was  an
appropriate consequence that accurately characterized his  military  service
and his crime.  The applicant  presents  insufficient  evidence  to  warrant
upgrading the dishonorable discharge, and does not demonstrate an  equitable
basis for relief.  In addition, his request,  made  more  than  three  years
after his conviction and discharge is untimely.

JAJM complete evaluation, with attachment, is at Exhibit C.

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APPLICANT'S REVIEW OF AIR FORCE EVALUATION:

A complete copy  of  the  Air  Force  evaluation  was  forwarded  to  the
applicant on 25 July 2003, for review and comment 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  error  or  injustice.   We  took  notice  of  the  applicant's
complete submission in judging the  merits  of  the  case.   However,  after
thorough review of the evidence of  record,  it  is  our  opinion  that  the
comments of the office of the Judge Advocate General are  supported  by  the
evidence of record.  We find no evidence of error in  this  case  and  after
thoroughly reviewing the applicant's submission, we do not  believe  he  has
suffered from an injustice.  We considered upgrading his  discharge  on  the
basis of clemency; however, due  to  the  serious  nature  of  the  offenses
committed, we believe that the characterization of his discharge was  proper
and in compliance with  the  appropriate  directives.   In  the  absence  of
persuasive evidence to  the  contrary,  we  find  no  basis  upon  which  to
favorably consider this application.

4.    The applicant's case is adequately documented  and  it  has  not  been
shown that a personal appearance with or  without  counsel  will  materially
add to our understanding of the issue(s) involved.  Therefore,  the  request
for a hearing 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.

_________________________________________________________________

The following members of the Board considered  Docket  Number  BC-2003-01656
in Executive Session on 3 September 2003, under the provisions  of  AFI  36-
2603:

                 Ms. Brenda L. Romine, Panel Chair
                 Mr. Jackson A. Hauslein, Member
                 Mr. James W. Russell, III, Member

Ms. Romine and Mr. Hauslein voted to deny the appeal;  Mr.  Russell  recused
himself from voting.

The following documentary evidence was considered:

      Exhibit A. DD Form 149, dated 15 May 03, w/atchs.
      Exhibit B. Available Master Personnel Records.
      Exhibit C. Letter, AFLSA/JAJM, dated 14 Jul 03.
      Exhibit D. Letter, SAF/MRBR, dated 25 Jul 03.





                                   BRENDA L. ROMINE
                                   Panel Chair