RECORD OF PROCEEDINGS
         AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS

IN THE MATTER OF:      DOCKET NUMBER:  BC-2004-00278
            INDEX CODE:  110.02

      XXXXXXX XX COUNSEL:  DVA

      XXXXXXX    HEARING DESIRED: YES

___________________________________________________________________

APPLICANT REQUESTS THAT:

His bad conduct discharge  (BCD)  be  upgraded  to  general  (under
honorable conditions) or honorable.

___________________________________________________________________

APPLICANT CONTENDS THAT:

His problems were brought on  by  a  terrible  illness  which  went
untreated for quite sometime.   He  states  after  a  diagnosis  of
rheumatic fever with carditis, pneumonia, and heart murmur, he  was
evaluated for a medical discharge  and  his  dream  of  a  military
career crashed.

His mother became ill and he made a stupid mistake by  deciding  to
go home to see her, even after his request  to  see  her  had  been
denied because he was still under medical care.

Subsequent to this, he escaped confinement which eventually led  to
his court-martial and discharge.

In support of his appeal, applicant submitted a  copy  of  DD  Form
214, Report of Separation from  the  Armed  Forces  of  the  United
States; a letter to his member of congress, dated  25  Apr  01  and
other  supporting  documents  (including  excerpts  from  his   DVA
Disability Claim and  excerpts  from  his  military  personnel  and
military medical records).

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

___________________________________________________________________

STATEMENT OF FACTS:

Prior to enlisting in the Air Force, applicant served honorably  in
the US Army, from 5 Jan 54 until 10 Jul 54.  Applicant enlisted  in
the Regular Air Force on 28 Dec 54 for a period of  four  years  in
the grade of airman third class.

On 29 Jun 55, applicant was convicted by Summary Court-Martial  for
two failures to wear his uniform  properly  (no  name  tag  and  no
stripes) and  sleeping  in  class.   His  punishment  consisted  of
reduction in grade to airman basic and 30 days  of  confinement  at
hard labor (suspended for 45 days), and forfeiture of $55.

On 1 Sep 55, applicant was convicted by Special  Court-Martial  for
being absent without leave (AWOL) from on or about 16 Jul 55  until
on or about 11 Aug 55.  His punishment consisted of four months  of
confinement at hard labor and forfeiture of $50 per month for  four
months.

On 21 Oct  55,  he  was  convicted  by  General  Court-Martial  for
escaping from lawful confinement in the base guardhouse on or about
6 Sep 55.  He was sentenced to a bad conduct discharge, confinement
at hard labor (CHL) for six months, and forfeiture of $55 per month
for six months.

On 12 Mar 56, he was discharged under the provisions of AFR  39-18,
with a bad conduct discharge in the grade of airman basic.  He  was
credited with 6 months and 19 days of active  service  during  this
period (excludes 236 days of lost time due to periods of  AWOL  and
confinement).

Pursuant  to  the  Board’s   request,   the   Federal   Bureau   of
Investigation, Clarksburg, West Virginia, provided an investigative
report which is attached at Exhibit C.

___________________________________________________________________

AIR FORCE EVALUATION:

AFLSA/JAJM  reviewed  this  application  and  recommended   denial.
Applicant was tried by a general court-martial on 21  Oct  55.   He
was charged with escape from lawful confinement,  in  violation  of
Article 95, Uniform Code of Military Justice (UCMJ).  He was  found
guilty in a trial with members.  The court sentenced him to receive
a bad conduct discharge, confinement at hard labor for six  months,
and forfeiture of $55 per month for six months.

On 21 Nov 55, the convening  authority  approved  the  sentence  as
adjudged except for that portion regarding  execution  of  the  bad
conduct  discharge  that  was  suspended  until  21  Feb  56.   The
applicant’s conviction and sentence were affirmed.

They opined there is  no  legal  basis  for  upgrading  applicant’s
discharge.   The  appropriateness  of  his  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
assistance of counsel  in  presenting  extenuating  and  mitigating
matters in  their  most  favorable  light  to  the  court  and  the
convening authority.  He was afforded all rights granted by statute
and regulation.  The maximum punishment authorized for the  offense
for which the applicant was convicted was a dishonorable discharge,
confinement for five years, forfeiture of all pay  and  allowances,
and reduction  to  the  lowest  enlisted  grade.   He  provides  no
compelling  rationale  to  mitigate  the  approved  BCD  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  record  reveals  that  the
applicant was treated with leniency  in  an  earlier  court-martial
proceeding by not being discharged.   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.   He
has provided no evidence of a clear error or injustice  related  to
the  sentence.   He  presents  insufficient   evidence   warranting
upgrading the BCD, and does not demonstrate an equitable basis  for
relief.

A complete copy of the evaluation is at Exhibit D.

___________________________________________________________________

APPLICANT'S REVIEW OF AIR FORCE EVALUATION:

Applicant explained the circumstances  surrounding  the  misconduct
which led to his courts-martial actions and  subsequent  discharge.
Additionally, he also explained the circumstances  surrounding  the
events cited in the FBI  Report  of  Investigation  and  the  final
disposition.

Applicant’s complete response, with attachments, is at Exhibit G.

___________________________________________________________________

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.  The  comments  of
the Office of the Air Force Legal Services Agency are supported  by
the evidence of record.  We took notice of the applicant's complete
submission in  judging  the  merits  of  the  case,  including  his
personal statements and  letters  of  reference  submitted  in  his
behalf.  We are  not  convinced  by  the  evidence  submitted  that
applicant’s  medical  problems  contributed  to   his   misconduct.
Furthermore, in view of the repeated misconduct  during  his  short
period of service that resulted in his  court-martial  actions  and
subsequent  discharge  and  the  contents  of  the  FBI  Report  of
Investigation,  we  are  not  persuaded  that  an  upgrade  of  the
characterization  of  the  applicant’s  service  on  the  basis  of
clemency is warranted.  Therefore, based on the available  evidence
of record, the applicant’s request for upgrade of his discharge  is
not favorably considered.

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   involved.
Therefore, the request for a hearing 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 AFBCMR Docket  Number
BC-2004-00278 in Executive Session on  3  August  2004,  under  the
provisions of AFI 36-2603:

      Ms. Olga M. Crerar, Panel Chair
      Mr. John B. Hennessey, Member
      Mr. James W. Russell III, Member

The following documentary evidence was considered:

    Exhibit A.  DD Form 149, dated 6 Feb 04, w/atchs.
    Exhibit B.  Applicant's Master Personnel Records.
    Exhibit C.  FBI Report of Investigation.
    Exhibit D.  Letter, AFLSA/JAJM, dated 26 Apr 04.
    Exhibit E.  Letter, SAF/MRBR, dated 7 May 04.
    Exhibit F.  Letter, AFBCMR, dated 10 Jun 04, w/atchs.
    Exhibit G.  Letter, Applicant, dated 30 Jun 04, w/atchs.




                                   OLGA M. CRERAR
                                   Panel Chair