RECORD OF PROCEEDINGS
             AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS

IN THE MATTER OF:                       DOCKET NUMBER:  BC-2004-00836
                                       INDEX CODE:  110.02
      XXXXXXXXXXXXXXXXXX                COUNSEL: NONE

      XXXXXXXXX                         HEARING DESIRED:  NO

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APPLICANT REQUESTS THAT:

His bad  conduct  discharge  (BCD)  be  upgraded  to  an  Under  Other  Than
Honorable Conditions (UOTHC) discharge  and  his  records  be  corrected  to
reflect his medical status to entitle him to medical care for his  condition
of Hypertension.

_________________________________________________________________

APPLICANT CONTENDS THAT:

His condition of Hypertension was diagnosed while  he  was  on  active  duty
prior to his court-martial.  The judge told him he  would  receive  Veterans
Administration benefits for his medical care.

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, and a copy of Department of Veterans Affairs (DVA)  benefits  denial
letter  dated  29  December  2003.   A  copy  of  the  applicant’s  complete
submission, with attachments, is at Exhibit A.

_________________________________________________________________

STATEMENT OF FACTS:

On 5 June 1984, prior to his Air Force enlistment,  the  applicant  enlisted
in the Army National Guard at the age of 17 in the grade  of  private  (E-1)
for a period of six years.  On 18 June 1984, the  applicant  was  put  on  a
physical profile and suspended from training pending  a  medical  board  for
high blood pressure after complaining of “throbbing all over.”   On  3  July
1974, the applicant was discharged from  the  Army  National  Guard  with  a
reenlistment code of RE-3 (individuals who are not qualified  for  continued
Army service, but  the  disqualification  is  waiverable  -  ineligible  for
enlistment  unless  a  waiver  is  granted),  and  a  narrative  reason  for
separation of “did not meet  procurement  medical  fitness  standards  -  no
disability.”  He served 29 days  on  active  duty  with  the  Army  National
Guard.

On 1 December 1986, the applicant enlisted in the Regular Air Force  at  the
age of 20 in the grade of airman basic (E-1) for  a  period  of  six  years.
The applicant did not report his prior service on his enlistment  documents.
 He was progressively promoted to the grade  of  airman  first  class  (E-3)
effective and with a date of rank of  16  January  1987.   He  received  two
Airman Performance Reports between 1 December 1986 and 17 August  1988  with
overall ratings of 7 and 4.

On 10 July 1987, his commander notified  the  applicant  of  his  intent  to
impose nonjudicial punishment on the applicant for  being  absent  from  his
organization without authority on or about 4 July 1987 and remaining  absent
until on or about 7 July 1987.  On 15 July 1987, after  consulting  counsel,
the applicant accepted nonjudicial punishment, waived his right to submit  a
written presentation, and  requested  to  make  an  oral  presentation.   On
20 May 1976, the applicant received punishment of a reprimand  and  14  days
of extra duty.

On 4 November 1988, the applicant  was  tried  by  a  general  court-martial
before a military judge.   He  was  charged  and  found  guilty  of  several
offenses, including:  two charges and  four  specifications  of  larceny  in
violation of Article 121; four specifications of uttering  worthless  checks
in violation of Article 134; unauthorized absence in  violation  of  Article
86; and three specifications of fraud in violation of  Article  123  of  the
Uniform Code of Military Justice (UCMJ).  On  4  November  1988,  the  court
sentenced the applicant to a  bad  conduct  discharge,  confinement  for  33
months, forfeiture of $350 per month for 33 months, and reduction  in  grade
to airman  basic  (E-1).   On  30 November  1988,  the  convening  authority
approved the sentence, as adjudged.  The Court of Criminal  Review  examined
the record of trial and concluded that the findings and  the  sentence  were
correct in  law  and  fact  and  affirmed  the  applicant’s  conviction  and
sentence on 25 September 1989.

The applicant was separated with a bad conduct discharge on 20 October  1989
with a separation code of JJD (conviction  by  court-martial  -  other  than
desertion) and a reenlistment code of 2M (discharged under general or other-
than-honorable conditions).  He had served  one  year  and  nine  months  on
active duty with the Air Force.   The  applicant’s  time  lost  was  from  1
September 1988 through 20 October 1989 due to military confinement.

In a letter dated 29 December 2003, the DVA denied the  applicant’s  request
for VA benefits for his Hypertension based upon his bad conduct discharge.

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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 record  of  trial  reveals  that  the  applicant  plead
guilty to the various charges and specifications.  Prior to being  sentenced
by the military judge, he was  required  to  state  in  detail  the  charges
against him and why he was guilty  of  each  offense.   According  to  trial
transcripts, at no time  during  this  recital  is  there  a  discussion  of
medical care or Veteran’s benefits as the applicant  claims,  nor  would  it
have been appropriate for the military judge to do so.

JAJM states that there is no  legal  basis  for  upgrading  the  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 statute  and  regulation.   It  is  JAJM’s  opinion  that  the  applicant
provides no compelling rationale to mitigate the  approved  discharge  given
the circumstances of the case.

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
military judge, convening authority, and the appellate court believed a  bad
conduct  discharge  was   an   appropriate   consequence   that   accurately
characterized his military  service  and  his  crimes.   JAJM  believes  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:

A copy of the Air Force evaluation was forwarded  to  the  applicant  on  30
July 2004 for review and comment within 30 days.   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  and  he  has
provided  no  evidence  showing  that  the  sentence  exceeded  the  maximum
punishment allowable based on the offense of which  he  was  convicted.   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.   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 14 October 2004, under the provisions of AFI 36-2603:



                  Mr. Thomas S. Markiewicz, Chair
                  Mr. John B. Hennessey, Member
                 Mr. Alan A. Blomgren, Member

The following documentary evidence was considered in connection with  AFBCMR
Docket Number BC-2004-00836:

      Exhibit A.  DD Form 149, dated 29 Dec 03, with attachments.
      Exhibit B.  Applicant's Master Personnel Records.
      Exhibit C.  Letter, AFLSA/JAJM, dated 14 Jul 04.
      Exhibit D.  Letter, SAF/MRBR, dated 30 Jul 04.




                                                   THOMAS S. MARKIEWICZ
                                                   Panel Chair