RECORD OF PROCEEDINGS
         AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS


IN THE MATTER OF:      DOCKET NUMBER:  BC-2004-02270
            INDEX CODES:  A71.00, A74.00

            COUNSEL:  NONE

            HEARING DESIRED:  YES


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APPLICANT REQUESTS THAT:

His dishonorable discharge be upgraded.

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APPLICANT CONTENDS THAT:

Based on the evidence presented at his court-martial, he  believes  he
received an inappropriate discharge.

Applicant’s complete submission is at Exhibit A.

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STATEMENT OF FACTS:

Applicant’s available military personnel records indicate that  on  16
Aug 84, a special court-martial convened and the applicant was charged
with failure  to  obey  a  lawful  command,  breach  of  restraint  of
correctional  custody,  unauthorized  absence  from  an  organization,
failure to remain at his place of duty, and failure to repair.  He was
granted a continuance until 11 Sep 84.  He was placed on leave  status
until 7 Sep 84; he never returned to duty.

On 21 Sep 84, he was tried in absentia and found guilty of all charges
except the breach  of  restraint  of  correctional  custody.   He  was
sentenced to a bad conduct discharge (BCD), confinement at hard  labor
for four months, forfeiture of $397.00 per month for four months,  and
reduction to E-1.

Applicant was subsequently apprehended on 17 May 85 and was placed  in
confinement to serve the four-month sentence adjudged at  his  special
court-martial.  He was charged with desertion, possession of marijuana
and impersonating a noncommissioned officer (NCO).  On  29 Aug  85,  a
general court-martial was convened and the applicant was found  guilty
of desertion and impersonating an NCO, but not guilty of possession of
marijuana.  He was sentenced to a dishonorable discharge,  confinement
for 18 months, and forfeiture of all pay and allowances.

Having  been  finally  affirmed,  on  24  July  86,  the  dishonorable
discharge was ordered to be executed.

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AIR FORCE EVALUATION:

AFLSA/JAJM  recommended  denial  indicating  there  is  no  basis  for
upgrading the  applicant’s  discharge.   The  appropriateness  of  the
applicant’s sentence, within the prescribed limits, is a matter 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
dishonorable discharge.  Thus, the applicant was afforded  all  rights
granted by statute and regulation.

According to AFLSA/JAJM the applicant’s punitive discharge  accurately
reflects the character of his service.  Desertion and impersonating an
NCO are dishonorable acts.  The maximum punishment authorized for  the
offenses for which the applicant was convicted during his second court-
martial was a dishonorable discharge, confinement for three years  and
six months, total forfeitures, and reduction to E-1.  The sentence was
well within the legal limits and was  a  fitting  punishment  for  the
offenses committed.  Despite the applicant’s contentions, the sentence
was not disproportionate to either the offenses or his prior  military
record.  Conversely, the requested relief,  an  upgrade  in  discharge
characterization  is  inappropriate  given  the  seriousness  of   the
applicant’s  crimes.   In  AFLSA/JAJM’s  view,   the   applicant   has
identified no error or injustice related to  his  prosecution  or  the
sentence.  The applicant presented insufficient  evidence  to  warrant
upgrading the discharge, and he did not demonstrate an equitable basis
for relief.

A complete copy of the AFLSA/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  applicant  on  19
Nov 04 for review and response.  As of this date, no response has been
received by this office (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  error  or  injustice.   We  took  notice  of   the
applicant's complete submission in judging the  merits  of  the  case;
however, we agree with the opinion and recommendation of the Air Force
office of primary responsibility (OPR) and adopt its rationale as  the
basis for our conclusion the applicant has not been the victim  of  an
error or injustice.  The evidence of record indicates he was sentenced
to  a  dishonorable  discharge,  confinement  for   18   months,   and
forfeitures of all pay and allowances as a result of his conviction by
general court-martial for desertion and impersonating an NCO.  He  now
requests that  his  dishonorable  discharge  be  upgraded  because  he
believes it was inappropriate.  After a thorough review of  the  facts
and circumstances of this case, we find no  evidence  which  indicates
the  applicant’s  dishonorable  discharge  was  improper  or  that  it
exceeded the limitations set forth in the  Uniform  Code  of  Military
Justice (UCMJ).  Furthermore,  because  of  the  lack  of  information
pertaining to his activities since leaving the service, we do not find
upgrading the applicant’s dishonorable  discharge  based  on  clemency
appropriate in this case at this time.  In view of the foregoing,  and
in the absence of sufficient evidence to  the  contrary,  we  find  no
compelling basis to recommend  granting  the  relief  sought  in  this
application.

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   issues   involved.
Therefore, the request for a hearing 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 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 3 Mar 05, under the provisions of AFI 36-2603:

      Mr. Wayne R. Gracie, Panel Chair
      Mr. John B. Hennessey, Member
      Ms. Jean A. Reynolds, Member

The following documentary evidence pertaining to AFBCMR Docket  Number
BC-2004-02270 was considered:

    Exhibit A.  DD Form 149, dated 15 Jul 04.
    Exhibit B.  Applicant's Master Personnel Records.
    Exhibit C.  Letter, AFLSA/JAJM, dated 16 Nov 04.
    Exhibit D.  Letter, SAF/MRBR, dated 19 Nov 04.




                                   WAYNE R. GRACIE
                                   Panel Chair