RECORD OF PROCEEDINGS
             AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS

IN THE MATTER OF:      DOCKET NUMBER:  BC-2004-03065
                             INDEX CODE:  110.00

                             COUNSEL: None

                             HEARING DESIRED: No

_________________________________________________________________

APPLICANT REQUESTS THAT:

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

APPLICANT CONTENDS THAT:

Her discharge was inequitable because it was  based  on  one  isolated
incident with no other adverse action before or  after  the  incident.
She was advised not to have a jury trial to expedite the trial, but to
this day she believes a jury would have found her not guilty.

Since her discharge she has  completed  Vocational  Technical  College
receiving a degree in Sheet Metal and is successfully employed.

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

_________________________________________________________________

STATEMENT OF FACTS:

Applicant enlisted in the Regular Air Force (RegAF) on 6  August  1984
for a period of four years as an airman basic (AB).

The applicant was charged in violation of Article 92 on  or  about  16
April 1991 for being derelict in the performance of her duties in that
she willfully identified on the Household Goods Descriptive Inventory,
personal items as professional.

On or about 16 April 1991, in violation of Article 134  the  applicant
was charged with intent to defraud, falsely  pretend  to  agents  that
certain items of personal property were professional,  books,  papers,
and equipment, therefore wrongfully obtained from  the  United  States
services valued of about $12,485.76.

General Court-Martial Order No. 13, dated 2 September 1992,  indicates
Charge I was dismissed prior to the arraignment and that the Charge II
was renumbered.  The applicant was  found  guilty  of  the  charge  of
intent to defraud and wrongfully receiving services  from  the  United
States valued at $12, 485.76.  The applicant was sentenced  to  a  bad
conduct discharge, 12  months  confinement  and  reduction  to  airman
basic.  The sentence was adjudged on 14  May  1992.   On  2  September
1992, the convening authority approved the sentence  and,  except  for
the discharge, ordered the sentence be executed.

The Air Force Court of Military Review (now called the  United  States
Air  Force  Court  of  Criminal  Appeals)  reviewed  the   applicant’s
conviction and on 5 May 1994, affirmed the  conviction  and  sentence.
The applicant petitioned the United States Court of  Military  Appeals
(now called the United States Court of Appeals for the  Armed  Forces)
for review.  On 21 September 1994, the court  denied  the  applicant’s
petition for review.  General Court-Martial Order  No.  11,  dated  26
October 1994, affirmed the  sentence  and  directed  the  bad  conduct
discharge be executed.

The applicant was discharged on 26 October  1994,  in  the  grade  of
airman with a bad conduct discharge, in accordance with General Court-
Martial Order No. 11.  She served a total of nine years,  six  months
and one day of active service.  The applicant had lost time  from  14
May 1992 through 11 February 1993.

Applicant’s EPR profile is listed below.

                 PERIOD ENDING          OVERALL EVALUATION

                 28 Oct 85              9
                 28 Oct 86              9
                 31 May 87              9
                 31 May 88              9
                 31 May 89              9
                 31 Mar 90              5 (New system)
                 31 Mar 91              5
                 31 Mar 92              5

_________________________________________________________________

AIR FORCE EVALUATION:

AFLSA/JAJM states an application must  be  filed  within  three  years
after the error or injustice was discovered, or, with  due  diligence,
should have been discovered.  An application  may  be  denied  on  the
basis of being untimely, however, an untimely filing may be excused in
the interest of justice.  The applicant’s request comes 10 years after
her discharge.  She has not identified an error or  injustice  in  the
processing of her discharge.

Under 10 USC Section 1552(f), which amended the basic correction board
legislation, the AFBCMR’s 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  Uniform  Code  of  Military  Justice  (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 AFBCMR is without authority  to  reverse,  set
aside, or otherwise expunge a court-martial conviction  that  occurred
on or after 5 May 1950 (the effective date of the UMCJ).

They further state that there is no  legal  basis  for  upgrading  the
applicant’s discharge.  Her sentence was within the prescribed  limits
and was a matter within the discretion of the court-martial and  could
have been mitigated by the convening authority or during the course of
the  appellate  review.   The  applicant  was  afforded   all   rights
guaranteed by statute and regulation.  She has provided no  compelling
basis based on the circumstances of her  case  that  would  warrant  a
change in her discharge.

AFLSA/JAJM  further  states   the   applicant’s   punitive   discharge
accurately reflects her service--she did  not  serve  honorably.   The
maximum punishment authorized for the offense for which the  applicant
was convicted was  a  dishonorable  discharge,  confinement  for  five
years, forfeiture of all pay and allowances,  and  reduction  to  E-1.
The sentence the applicant received was well within the  legal  limits
and was a fitting punishment for  the  offenses  she  committed.   The
applicant contends the punishment she received was disproportionate to
the offense and her military record. The applicant was  authorized  to
ship 8000 pounds of personal property  plus  professional  gear.   She
willfully and  knowingly  shipped  over  30,000  pounds  of  goods  as
professional gear.  The actual amount of  professional  gear  was  500
pounds.  The applicant was present during the package  process.   This
was not just a simple mistake or a  small  oversight.   The  applicant
obviously knew what she was shipping was not professional  gear.   The
applicant has not presented sufficient evidence to  warrant  upgrading
her discharge and therefore they recommend  the  requested  relief  be
denied.

A complete copy of the evaluation is attached at Exhibit C.

_________________________________________________________________

APPLICANT'S REVIEW OF AIR FORCE EVALUATION:

A copy of the Air Force evaluation was forwarded to the  applicant  on
10 December 2004, for review  and  response.   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 of timely file.

3.    Insufficient relevant evidence has been presented to demonstrate
the existence of error or injustice.  After thoroughly  reviewing  the
evidence or record, we find no evidence to show that  the  applicant’s
discharge as a result of her conviction by court-martial was erroneous
or unjust.  The applicant’s contentions are duly noted,  however,  she
has submitted no evidence to support these contentions.  The applicant
knowingly  and  willing  defrauded  the  government  by  allowing  her
personal property to be shipped as professional.  Therefore, we  agree
with the opinion and recommendation of the Air Force office of primary
responsibility and adopt its rationale as the basis for our conclusion
that the applicant has not been the victim of either an  error  or  an
injustice.  Therefore, in the absence of evidence to the contrary,  we
find no compelling basis to recommend granting the  relief  sought  in
this application.

_________________________________________________________________

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-
2004-03065  in  Executive  Session  on  25  January  2005  under   the
provisions of AFI 36-2603:

                 Ms. Peggy E. Gordon, Panel Chair
                 Ms. Renee M. Collier, Member
                 Mr. Patrick C. Daugherty, Member

The following documentary evidence was considered:

   Exhibit A.  DD Form 149, dated 23 Sep 04.
   Exhibit B.  Master Personnel Records.
   Exhibit C.  Letter, AFLSA/JAJM, dated 1 Dec 04.
   Exhibit D.  Letter, SAF/MRBR, dated 10 Dec 04.




                                        RENEE M. COLLIER
                                        Acting Panel Chair