RECORD OF PROCEEDINGS
             AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS

IN THE MATTER OF:                       DOCKET NUMBER:  BC-2003-02732
                                       INDEX CODE:  110.02
      XXXXXXXXXXXXXXXXX                      COUNSEL: NONE

      XXXXXXXXXXXXXXX                   HEARING DESIRED:  NO

_________________________________________________________________

APPLICANT REQUESTS THAT:

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

_________________________________________________________________

APPLICANT CONTENDS THAT:

The applicant does not submit any contentions.

In support of his application, he provided a DD Form  293,  Application  for
the Review of Discharge or Dismissal From the Armed  Forces  of  the  United
States.  A copy of the applicant’s complete submission  with  attachment  is
at Exhibit A.

_________________________________________________________________

STATEMENT OF FACTS:

On 28 June 1973, the applicant enlisted in the Regular Air Force at the  age
of 18 in the grade of airman basic (E-1) for a period  of  four  years.   He
was progressively promoted to the grade  of  sergeant  (E-4)  effective  and
with a date of  rank  of  1  March  1979.   The  applicant  received  twelve
enlisted performance reports from the period 28 June 1973  to  2  June  1982
with overall ratings of eight,  eight,  nine,  seven,  eight,  eight,  nine,
nine, eight, eight, nine, and six.

On 17 May 1976, his commander  notified  the  applicant  of  his  intent  to
impose nonjudicial punishment  for  stealing  mail  and  soliciting  another
person to steal  mail.   The  applicant  accepted  non-judicial  punishment,
submitted  a  written  presentation,  and  requested   to   make   an   oral
presentation.   On  20  May  1976,  the  applicant  received  punishment  of
reduction in grade to airman first class, forfeiture of $229 per  month  for
two months, and extra duty for 45 days.   On  24  May  1976,  the  applicant
submitted a letter of appeal.  On 28 May  1976,  his  commander  denied  his
appeal.

On 30 December 1981, the applicant was arraigned  and  tried  at  a  special
court-martial for two specifications  of  violation  of  Uniformed  Code  of
Military Justice (UCMJ), Article 134.  It was  alleged  that  the  applicant
wrongfully and unlawfully stole a package addressed  to  another  individual
before it  was  delivered  to  said  individual  and  wrongfully  soliciting
another service member to  steal  the  same  package.   After  pleading  not
guilty to the offenses, the applicant was  found  guilty.   On  30  December
1981, the  court  sentenced  the  applicant  to  a  bad  conduct  discharge,
confinement at hard labor for four months, forfeiture of $206 per month  for
four months, and reduction in grade to airman basic.  On  15  January  1982,
the convening authority approved the  sentence,  as  adjudged.   The  United
States  Air  Force  Court  of  Military  Review  affirmed  the   applicant’s
conviction and sentence on 7 June  1982.   The  Court  of  Military  Appeals
affirmed the conviction and sentence on 5 December 1983.

The applicant was separated with a  bad  conduct  discharge  on  17 February
1984 with a separation code of JJD  (conviction  by  court-martial  -  other
than desertion) and a reenlistment code of 2B (discharged under  general  or
other-than-honorable conditions).  He had served 10 years, 4 months, and  20
days on active duty.  The applicant’s time lost was 98 days due to  military
confinement.

Pursuant to the  Board’s  request,  the  Federal  Bureau  of  Investigation,
Clarksburg, WV, provided a copy of an  Investigation  Report  pertaining  to
the applicant, which is at Exhibit F.

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AIR FORCE EVALUATION:

AFLSA/JAJM recommends  denial.   JAJM  states  that  under  10  USC  Section
1552(f), which amended the basic  corrections  board  legislation,  the  Air
Force Board  for  Corrections  of  Military  Record’s  (AFBCMR)  ability  to
correct  records  related  to  courts-martial  is  limited.    Specifically,
Section 1552(f)(1) permits the correction of a  record  to  reflect  actions
taken by  reviewing  authorities  under  the  UCMJ.   Additionally,  Section
1552(f)(2) permits the correction  of  records  related  to  action  on  the
sentence of courts-martial for the purpose of clemency.   Apart  from  these
two limited exceptions, the effect of Section 1552(f) is that the AFBCMR  is
without authority to reverse, set-aside,  or  otherwise  expunge  a  courts-
martial conviction that occurred on or after 5 May 1950 (the effective  date
of the UCMJ).

JAJM states that the military judge and the  Air  Force  Court  of  Military
Review were convinced of the applicant’s guilt beyond  a  reasonable  doubt.
The sentence he received was well  within  the  legal  limits  and  the  bad
conduct discharge was appropriate punishment for the offense committed.

It is JAJM’s opinion 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.  There are  consequences  for  criminal  behavior  and  the
court members, convening authority, and the  Air  Force  Court  of  Military
Review 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
presents no evidence to warrant upgrading the  bad  conduct  discharge,  nor
has he demonstrated an equitable basis for relief.  The JAJM  evaluation  is
at Exhibit C.

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APPLICANT'S REVIEW OF AIR FORCE EVALUATION:

Copies of the Air Force evaluation and the FBI report  were  forwarded  to
the applicant on 7 November 2003  and  23  January  2004  for  review  and
comment (Exhibits D and E).  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  discharge  had
its basis  in  his  trial  and  conviction  by  a  court-martial.   We  are
constrained to note that, 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 which would lead  us  to  believe  that  a
change to the actions of any  of  the  reviewing  officials  is  warranted.
Furthermore, we do not find clemency is appropriate in this case since  the
applicant has not  provided  any  evidence  of  a  successful  post-service
adjustment  and  in  view  of  the  information  contained   in   the   FBI
investigative report.  Therefore, the applicant’s request is not  favorably
considered.

__________________________________________________________________

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 this application in  Executive
Session on 12 February 2004, under the provisions of AFI 36-2603:

            Ms. Brenda L. Romine, Panel Chair
            Ms. Barbara R. Murray, Member
            Mr. David C. VanGasbeck, Member

The following documentary evidence for AFBCMR  Docket  Number  BC-2003-02732
was considered:

      Exhibit A.  DD Form 149, dated 11 Aug 03.
      Exhibit B.  Applicant's Master Personnel Records.
      Exhibit C.  Letter, AFLSA/JAJM, dated 30 Oct 03.
      Exhibit D.  Letter, SAF/MRBR, dated 7 Nov 03.
      Exhibit E.  Letter, AFBCMR, dated 23 Jan 04.
      Exhibit F.  FBI Report XXXXX, dated 19 Nov 03.




                             BRENDA L. ROMINE
                                             Panel Chair