RECORD OF PROCEEDINGS
             AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS

IN THE MATTER OF:      DOCKET NUMBER:  BC-2004-00602
            INDEX CODE:  105.00
            COUNSEL:  NONE

            HEARING DESIRED:  NO

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APPLICANT REQUESTS THAT:

The injustices relating to his court-martial conviction be corrected.
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APPLICANT CONTENDS THAT:

He was wrongfully accused and prosecuted.  The payment of “dive” pay was  an
error; however, he did try to make restitution of  the  money  overpaid  him
but the finance office  refused  the  repayment.   Such  overpayment  was  a
common problem affecting many personnel on the base.

In support of the application, the applicant submits a copy of  the  general
court-martial order, privacy act release form, and  support  letter  from  a
member of Congress.

The applicant's complete submission, with attachments, is at Exhibit A.
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STATEMENT OF FACTS:

On 13 October 1969, the applicant enlisted into the  Regular  Air  Force  at
the age of 19 in the grade of airman basic for a period of four  years.   He
was progressively promoted to the grade of Master Sergeant.

On 14 January 1976, the applicant received Notification of Intent to  Impose
Nonjudicial Punishment for operating a vehicle while drunk.  He was  reduced
to the grade of Sergeant and ordered to forfeit $100.00 pay for two  months,
but the execution of the portion  of  the  punishment,  which  provided  for
reduction to the grade of Sergeant and forfeitures in excess  of  $25.00  of
pay for two months was suspended.

On 24 July 1985, the applicant pled and was found guilty by a general court-
martial of wrongful appropriation of U.S.  currency  of  a  value  of  about
$3,450.00 from on or about 1 August 1983 to on or about 30  June  1985.   He
was sentenced to perform hard labor without confinement  for  three  months,
forfeit $150.00 pay per month for five (5)  months,  and  reduction  to  the
grade of Technical Sergeant (E-6).  The applicant retired from  active  duty
effective 31 March 1986.  He had served 20 years, 3 months, and  2  days  on
active duty.
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AIR FORCE EVALUATION:

AFLSA/JAJM recommends denial.   JAJM  states  the  applicant  must  file  an
application within three years after the error or injustice was  discovered,
or with due diligence.  It is JAJM’s opinion that nothing has changed  since
the applicant’s trial, therefore the applicant  was  clearly  aware  of  the
purported error or injustice at the  time  of  his  court-martial  in  1985.
Furthermore,  the  application  is  untimely,  and  the  substance  of   the
application is without merit.

JAJM indicated the application does not specify  the  relief  the  applicant
seeks, but to the extent the application is a request  for  the  removal  of
the applicant’s court-martial conviction, such relief is  not  an  available
remedy.  JAJM specifically noted that, according  to  10  USC  1552(f),  the
Board is not empowered to set aside or reverse the findings of guilty  by  a
court-martial.

JAJM stated that a guilty plea is the strongest proof of guilt known to  the
law.  A military judge can only accept a service member’s plea of guilty  if
it is provident under military law.  In order to be provident,  the  service
member must admit every element  of  the  offense  to  which  he/she  pleads
guilty, as explained by the military  judge.   The  applicant  indicated  he
took no action because he believed the  finance  office  would  correct  the
error and recoup the money through offset against other  pay.   He  admitted
under oath he knew he was not entitled to the extra  money.   The  applicant
also signed a stipulation of fact stating he knew he was being paid  special
duty pay that he was no longer qualified to receive.

JAJM states there was no error or injustice related to  the  sentence.   The
applicant was tried in the  appropriate  forum  (general  court-martial)  in
accordance with the offense.  The  maximum  punishment  authorized  for  the
offense for which the applicant was convicted was a bad  conduct  discharge,
confinement for six months,  forfeiture  of  all  pay  and  allowances,  and
reduction to the grade of airman basic.  The sentence  given  the  applicant
was well within the prescribed limits and  was  appropriate  punishment  for
the offense committed.  The applicant had the assistance  of  counsel.   The
extenuating  and  mitigating  matters  were  considered  in  review  of  the
sentence.  The applicant was afforded  all  rights  granted  by  statue  and
regulation.  JAJM opinions there is no reason to exercise clemency  in  this
case as the applicant has identified no error or injustice  related  to  his
prosecution or sentence, and presents insufficient evidence to  warrant  any
relief.  The AFLSA/JAJM evaluation is at Exhibit C.

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APPLICANT'S REVIEW OF AIR FORCE EVALUATION:

A copy of the advisory opinion was forwarded to  the  applicant  for  review
and comment within on 16 April 2004.  As  of  this  date,  this  office  has
received no response (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 probable error or injustice.   The  applicant’s  discharge  was
based on his trial and conviction by a general court-martial.  While we  are
precluded  by  law  from  reversing  a  court-martial  conviction,  we   are
authorized to correct the records to  reflect  actions  taken  by  reviewing
officials and to take action on the sentence of a military  court  based  on
clemency.  There is nothing in the available record that would cause  us  to
disturb the actions of the reviewing  officials.   Furthermore,  we  do  not
find clemency  is  appropriate  in  this  case.   The  record  reveals  that
pursuant  to  his  pretrial  agreement   and   contrary   to   his   present
protestations of innocence, the applicant pled and was found guilty  of  the
lesser offense of wrongful appropriation.  It appears the  sentence  of  the
military court was well within the maximum  allowable  for  the  offense  of
which he stood convicted.  Other than his own assertions, the applicant  has
provided no evidence showing the contrary was the case nor has  he  provided
evidence that would support favorable action based on clemency.   Therefore,
we  agree  with  the  assessment  of  the  Air  Force  office   of   primary
responsibility and adopt their rationale as our findings in  the  case.   In
view of the above, 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 probable 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 29 July 2004, under the provisions of AFI 36-2603:

            Mr. Richard A. Peterson, Panel Chair
            Ms. Kathleen F. Graham, Member
      Mr. Vance E. Lineberger, Member

The following documentary evidence was considered in AFBCMR BC-2004-00602:

    Exhibit A.  DD Form 149, dated Feb 9, 2004, with attachments.
    Exhibit B.  Applicant's Master Personnel Records.
    Exhibit C.  Letter, AFLSA/JAJM, dated 9 April 04.
    Exhibit D.  Letter, SAF/MRBR, dated 16 April 04.




                                   RICHARD A. PETERSON
                                   Panel Chair