RECORD OF PROCEEDINGS
             AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS

IN THE MATTER OF:      DOCKET NUMBER:  BC-2004-02984
            INDEX CODE:  110.02
      XXXXXXX    COUNSEL:  NONE

      XXXXXXX    HEARING DESIRED:  NO

MANDATORY CASE COMPLETION DATE:  23 NOVEMBER 2006

_________________________________________________________________

APPLICANT REQUESTS THAT:

Her bad conduct discharge (BCD) be upgraded to honorable.

_________________________________________________________________

APPLICANT CONTENDS THAT:

The severity of the charges presented during the court-martial  should  have
resulted in prison time. However, based on the inconsistent testimony  given
by the plaintiff, she received a less severe charge.

In support of her application, the applicant provided a personal  statement,
a copy of her nomination for the Dean’s List,  President  List  Scholar  for
2004/2005 and a letter from Department of Public Safety.

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

_________________________________________________________________

STATEMENT OF FACTS:

Applicant enlisted in the Regular Air Force  on  5  December  1991  and  was
progressively promoted to the grade of airman first class.

Applicant,  then  an  airman  first  class,  was  involved  in  a   physical
altercation with Sgt W__, the father of her 2-year  old  son,  on  3 October
1994. She stabbed him, cutting into both  his  arms  and  his  chest.  On  9
February 1995, her commander preferred one charge  of  attempted  murder  (a
violation of Article 80, UCMJ) and one charge  with  two  specifications  of
assault (violations of Article 128, UCMJ). One assault was for the  stabbing
and causing grievous bodily harm and one assault was for poking Sgt  W__  in
the face with her finger and punching him in the stomach with her  fist-also
on 3 October 1994. On 23 March 1995, her commander preferred  an  additional
charge of assault for the stabbing-this time as an assault with a  dangerous
weapon. On 17 April 1995,  the  general  court-martial  convening  authority
referred all of the charges and specifications for trial by  general  court-
martial. The military judge explained to the members at  the  start  of  the
trial that the applicant could not be found guilty of attempted  murder  and
the two assault charges relating to the stabbing. The assault  charges  were
acting as lesser-included offenses of the attempted murder charge. In  other
words, the panel  would  decide  which  one  of  those  offenses  (attempted
murder, assault causing grievous bodily harm, or assault  with  a  dangerous
weapon), if any, she committed.

A panel of officer members  found  the  applicant  guilty  of  assault  with
intent to inflict grievous bodily harm. During the sentencing  part  of  the
trial, the applicant asked for a punitive discharge in lieu of  confinement.
In the transcript, she said, “she values her Air Force career a great  deal,
and do not want to leave, especially under these circumstances.  She  really
do not want to leave  her  son,  however,  she  is  willing  to  suffer  the
circumstances of losing her military career  she  fought  so  hard  to  get,
rather than not being able to perform her duties as  a  mother.”  The  panel
sentenced her to  a  bad  conduct  discharge,  90 days  hard  labor  without
confinement, and reduction to airman basic (E-1). On 28  November  1995,  in
her subsequent clemency  petition  to  the  convening  authority,  applicant
asked that he set aside her  conviction  or  at  least  set  aside  her  bad
conduct discharge. She said she  was  not  trying  to  game  the  system  by
initially asking for a punitive  discharge  to  avoid  separation  from  her
child. The convening authority approved the sentence  without  modification.
The applicant was discharged from the Air  Force  on  23  October  1996  and
received a bad conduct discharge in the grade of airmen basic.   She  served
4 years, 10 months and 19 days of total active military service.

The sentence was well within the legal limits and the bad conduct  discharge
was an appropriate punishment for the offense  committed.  The  findings  of
guilty and the sentence, including the bad conduct discharge, were  affirmed
upon appellate review.

_________________________________________________________________

AIR FORCE EVALUATION:

ALSA/JAJM recommends denial and states that the applicant  has  provided  no
evidence of a clear error or injustice related to the  sentence.  Therefore,
there  is  no  reason  required  by  law  to  grant  the  relief  requested.
Applicant’s apparent exemplary life after her conviction is commendable.

ALSA/JAJM complete evaluation is attached at Exhibit C.

_________________________________________________________________

APPLICANT'S REVIEW OF AIR FORCE EVALUATION:

On 29 July 2005, a copy of the Air Force evaluation  was  forwarded  to  the
applicant for review and response within 30  days.   As  of  this  date,  no
response has been received by this office.

_________________________________________________________________
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.  After  reviewing  all  the  evidence
presented, we are not persuaded  that  action  to  upgrade  the  applicant's
discharge based on clemency is appropriate. The  applicant's  discharge  had
its basis in her trial and conviction by a duly constituted military  court.
The findings of  guilty  and  her  sentence  were  affirmed  upon  appellate
review. While the evidence provided indicates that the applicant has made  a
successful post-service adjustment, in view of the  extreme  seriousness  of
the offense she committed (assault  with  the  intent  to  inflict  grievous
bodily harm), we do not believe a sufficiently lengthy period  of  time  has
elapsed since the applicant's discharge to warrant the exercise of  clemency
at the present time.

4. Notwithstanding the above, the Board concurs with the Associate  Chief’s,
Military Justice Division, advice that the applicant may wish to  apply  for
a Presidential pardon under the provisions of  Title  28,  Code  of  Federal
Regulations, Section 1.1.

_________________________________________________________________

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  Docket  Number  BC-2004-02984
in Executive Session on 15 September 2005, under the provisions of  AFI  36-
2603:

                       Mr. Thomas S. Markiewicz, Chair
                       Mr. Gregory A. Parker, Member
                       Ms. Jan Mulligan, Member

The following documentary evidence was considered:

    Exhibit A.  DD Form 149, dated 15 Sept 05, w/atchs.
    Exhibit B.  Applicant's Master Personnel Records.
    Exhibit C.  Letter, AFLSA/JAJM, dated 18 Jul 05.
    Exhibit D.  Letter, SAF/MRBR, dated 29 Jul 05.






                                   THOMAS S. MARKIEWICZ
                                   Chair