RECORD OF PROCEEDINGS
             AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS

IN THE MATTER OF:      DOCKET NUMBER:  BC-2004-00960
            INDEX CODE:  110.02
            COUNSEL:  NONE

            HEARING DESIRED:  NO

_________________________________________________________________

APPLICANT REQUESTS THAT:

His court-martial conviction be  overturned,  his  rank  and  retirement  be
restored, and his bad conduct discharge be upgraded to honorable.

_________________________________________________________________

APPLICANT CONTENDS THAT:

He did not commit the crimes he was charged with.  He “gave his  life  (sic)
for this country without reservation” and did everything  he  was  asked  to
do.  He served in  the  Gulf  War  (two  tours),  Korea,  Japan,  and  other
assignments.  He did not deserve this treatment and wants justice.

In support of the application, the applicant submits his  application.   The
applicant's complete submission is at Exhibit A.

_________________________________________________________________

STATEMENT OF FACTS:

On 19 August 1980, the applicant enlisted in the Regular Air  force  at  the
age of 17 in the grade of airman basic (E-1) for a period of  6  years.   He
was progressively promoted to the rank of Staff Sergeant (E-5) with  a  date
of rank of 1 April 1986.

The  following  is  a  resume   of   Airman/Enlisted   Performance   Reports
(APR/EPRs), commencing with the report closing 18 August 1981.

      PERIOD ENDING    PROMOTION RECOMMENDATION

      18 August 1981         8
      11 February 1982       8
      18 October 1982        9
      21 March 1983 (SrA)         9
      21 March 1984 (Sgt)         9
      21 March 1985          9
      19 July 1985           9
      1 December 1985        9

      29 April 1986 (SSgt)        9
      29 April 1987          8
      31 January 1988        9
      28 February 1989       7
      28 June 1989           9
      28 June 1990           3
      28 June 1991           4
      28 June 1992           5
      28 June 1993           4
      15 January 1994        4
      24 October 1994        3

Information provided by the  Air  Force  office  of  primary  responsibility
indicates  that  the  applicant  was  charged  with  one  specification   of
dereliction of duty in violation of Article 92, UCMJ; one  specification  of
making a false official statement in violation of  Article  107,  UCMJ;  and
one specification of larceny (theft) on divers occasions between March  1991
and May 1994, in violation of Article 121, UCMJ.  The record  indicates  the
applicant continued to collect BAQ/VHA for approximately 38 months after  he
and his wife separated.  He did not live with his wife  or  provide  support
to her during the relevant time period.

Before a General Court-Martial on 25 October 1994, he pled not  guilty,  and
was sentenced to a bad conduct discharge, confinement for  eighteen  months,
forfeiture of $467.00 per month for 18 months, and reduction  to  the  grade
of airman.  On 9 March 1995, the convening authority approved  the  sentence
as adjudged.  On 17 May 1986,  the  Air  Force  Court  of  Criminal  Appeals
affirmed the findings and the  sentence  as  approved.   The  United  States
Court of Appeals for the Armed Forces denied  the  applicants  petition  for
review on 10 October 1996.

On 18 November 1996,  the  applicant  was  discharged  with  a  bad  conduct
discharge.  He had served 14 years and 9 months on active duty.  He had  548
days of lost time due to confinement.

The remaining relevant facts pertaining to this application, extracted  from
the applicant’s military records, are contained in the  letter  prepared  by
the appropriate office of the Air Force at Exhibit C.
_________________________________________________________________

AIR FORCE EVALUATION:

AFLSA/JAJM recommends denial.  JAJM states there is  no  apparent  error  or
injustice that requires the  correction  of  the  applicant’s  court-martial
record.  The applicant was convicted of the charges, and the  evidence  does
not  support  the  applicant’s  contentions  that  he  did  not  commit  the
offenses.  The accused pleaded not guilty but was  found  guilty,  beyond  a
reasonable doubt, by the court-martial.  JAJM  notes  the  maximum  sentence
for the crimes for which the  applicant  was  convicted  is  a  dishonorable
discharge, forfeiture of  all  pay,  and  confinement  for  10  years.   The
sentence given the applicant was  well  within  the  legal  limits  and  was
appropriate punishment for the offense committed.   The  applicant  had  the
assistance of counsel.  JAJM opines the  applicant  provides  no  compelling
rationale to mitigate the approved punitive discharge.  The military  judge,
convening  authority  and  the  appellate  courts  believed  a  bad  conduct
discharge was an appropriate consequence that accurately  characterized  his
military service and his crimes.  JAJM’s evaluation,  with  attachments,  is
at Exhibit C.

In addition to the above, JAJM noted that the Board is not empowered to set-
aside or reverse the findings of guilty  by  a  court-martial.   Rather,  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.  JAJM  does  not  believe  there  is  a
basis for any relief as to the sentence of the military court in this case.

JAJM’s evaluation is at Exhibit C.
_________________________________________________________________

APPLICANT'S REVIEW OF AIR FORCE EVALUATION:

A copy of the Air Force  Evaluation  was  forwarded  to  the  applicant  for
review and comment.  As of this date, this office has received  no  response
(Exhibit D).
_________________________________________________________________

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 an error or injustice.  We are not persuaded  by  the  evidence
presented that  the  separation  characterization  received  by  the  former
member should be changed.  The former member's discharge was  based  on  his
trial and conviction by a general court-martial.   While  law  precludes  us
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 or to warrant a  correction  of  his  records  based  on
clemency.  In the absence of such evidence, 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 AFBCMR Docket Number  BC-2004-
00960 in Executive Session on 28 October 2004, under the provisions  of  AFI
36-2603:

                 Mr. Richard A. Peterson, Panel Chair
                 Ms. Martha A. Maust, Member
                 Mr. Michael J. Maglio, Member

The following documentary evidence was considered:

      Exhibit A.  DD Form 149, dated 18 Apr 04.
      Exhibit B.  Applicant's Master Personnel Records.
      Exhibit C.  Letter, AFLSA/JAJM, dated 26 May 04. w/atch.
      Exhibit D.  Letter, SAF/MRBR, dated 11 Jun 04.




                                   RICHARD A. PETERSON
                                   Panel Chair