RECORD OF PROCEEDINGS
             AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS

IN THE MATTER OF:      DOCKET NUMBER:  BC-2005-00795
                             INDEX CODE:  110.00

                             COUNSEL: None

                             HEARING DESIRED: No

MANDATORY CASE COMPLETION DATE:  9 SEP 06

_________________________________________________________________

APPLICANT REQUESTS THAT:

His bad conduct discharge (BCD)  be  upgraded  to  a  under  honorable
conditions (general) discharge.
_________________________________________________________________

APPLICANT CONTENDS THAT:

He believes the punishment he received was  harsh  and  not  justified
based on the charges filed against him.  The prosecution  requested  a
reduction in the sentence but it was not granted.

He has reviewed cases similar to his and the punishment was  not  near
as severe as the punishment he received.

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

_________________________________________________________________

STATEMENT OF FACTS:

Applicant enlisted in the Regular Air  Force  (RegAF)  on  16  October
1987, as an airman basic (AB) for a period of four years.

The applicant received a Letter of Reprimand (LOR) on 29 July 1988 for
failing to meet the standards of Air Force Regulation (AFR) 35-10.

On 21 April 1989, the applicant received an LOR for failure to  report
on time.

The applicant, on 24 April 1989, received an LOR and was placed on the
control roster for four months for failure to report on time.

On 27 April 1989, the applicant received an Article 15 for failure  to
go to his appointed place of duty.  For this misconduct his punishment
consisted of suspended reduction to  airman  until  24  October  1989,
forfeiture of $50.00 of pay for one month and 30 days or  correctional
custody.  On 22 May 1989, the portion of the  applicant’s  nonjudicial
punishment which called for undergoing correctional custody in  excess
of 25 days was remitted.

On 14 March 1990, the applicant received an LOR for  failure  to  show
for a scheduled appointment for Chemical Warfare Refresher Training.

The applicant was tried by general court martial on 12 April 1990 for:

Charge I.
      Specification 1.  On or about 15 November  1989,  the  applicant
stole $7.00 from C. H.

      Specification 2.  On or about 24 November  1989,  the  applicant
stole $120.00 from P. B.

      Specification 3.  On or about 25 December  1989,  the  applicant
stole a diamond ring valued at $500.00.

      Specification 4.  On or about 28 February  1990,  the  applicant
stole a Motorola radio, military property, valued at $1,522.00.

Charge II.
      Specification.  On or about  15  November  1989,  the  applicant
unlawfully entered the room of C. H.  with  the  intent  to  commit  a
criminal offense (larceny).

Charge III.
      Specification 1.  On or about 24 November  1989,  the  applicant
unlawfully broke and entered the room of P. B.,  with  the  intent  to
commit larceny.

      Specification 2.  On or about 25 December  1989,  the  applicant
unlawfully broke and entered the room of M. W. H., with the intent  to
commit larceny.

Charge IV.
      Specification 1.  On or about 1  February  1990,  the  applicant
unlawfully entered the room of D. R. H.

      Specification 2.  The applicant did from on or about 17 February
1990 until on or about 22  February  1990,  did  with  the  intent  to
defraud, falsely pretend to ATT that he  was authorized
to use the ATT services  provided  to  K.  D.  B.,  knowing  that  the
pretenses were false, and did  wrongfully  obtain  from  ATT  services
valued at $1,469.00 (575 long distance phone calls).

Charge V.
      Specification 1.  The applicant did on or about 15  March  1990,
unlawfully store a .22 caliber rifle in his barracks room.

      Specification 2.  On or  about  15  March  1990,  the  applicant
unlawfully stored shotgun shells,  .22  caliber  bullets,  a  23  inch
machete, 8 knives (blades exceeded 3½ inches) and 4 throwing stars  in
his barracks room.

On 12 April 1990, the applicant was found guilty  in  accordance  with
his pleas by a general  court-martial  and  was  sentenced  to  a  bad
conduct discharge, forfeiture of all pay and  allowances,  confinement
for 24 months, and reduction to the grade of airman basic.

On 18 January 1991, the United States  Air  Force  Court  of  Military
review affirmed the findings and  sentence.   The  applicant  did  not
petition for review to the United States Court of Military Appeals.

On 31 May 1991, the final court-martial  order  was  issued  directing
that the bad conduct discharge be executed.

Applicant’s EPR profile is listed below.

                 PERIOD ENDING          OVERALL EVALUATION

                  9 Jan 89              8
                 15 Jun 89              2 (New System)
                  9 Mar 90              4

Applicant was discharged from the Regular Air Force on 25  June  1991,
in the grade of airman basic, under the provisions of  General  Court-
Martial Order No. 274, and was furnished a bad conduct discharge.   He
had completed 2 years, 5 months and 27 days of active service with  14
months and 13 days lost time.

Pursuant to the Board’s request, the Federal Bureau of  Investigation,
Washington, D.C., provided an investigative report which  is  attached
at Exhibit C.

_________________________________________________________________

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.

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.  The applicant does  not  identify  a  specific
error or injustice that occurred  during  the  court-martial  process.
Although the applicant contends  his  punishment  was  too  harsh,  he
provides no basis whatsoever for clemency.  The maximum punishment the
applicant could have received  for  the  offenses  for  which  he  was
convicted was a dishonorable  discharge,  confinement  for  49  years,
forfeiture of all pay and  allowances,  and  reduction  to  E-1.   His
sentence was within the prescribed legal  limits  and  was  a  fitting
punishment for the offenses committed.

AFLSA/JAJM further states that while clemency is an option,  there  is
no reason for the Board to exercise clemency in the applicant’s  case.
The applicant did not  serve  honorably  during  his  enlistment.   To
classify his service as honorable would place him on an equal  footing
with  the  millions  of  servicemembers  who  have,  in  fact,  served
honorably.  The applicant has not  presented  sufficient  evidence  to
warrant upgrading his  discharge  and  therefore  they  recommend  the
requested relief be denied.

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

_________________________________________________________________

APPLICANT'S REVIEW OF AIR FORCE EVALUATION:

A copy of the Air Force evaluation was forwarded to the  applicant  on
20 May 2005, for review and response.  As of this  date,  no  response
has been received by this office.

On 14 June 2005, the Board  staff  requested  the  applicant  provided
documentation regarding his activities since leaving military  service
(Exhibit F).

On 30 June 2005, the Board staff forwarded the applicant a copy of the
FBI report for review and response.  The  applicant  did  not  respond
(Exhibit G).

_________________________________________________________________

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 an error or an 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 their rational as the
basis for our conclusion that the applicant has not been the victim of
an error or injustice.  The evidence of record indicates that  he  was
sentenced to a BCD, confinement for 24 months, forfeitures of all  pay
and allowances, and reduction to the grade of airman basic as a result
of his conviction  by  general  court-martial  for  larceny,  wrongful
appropriation,  housebreaking,  burglary,  unlawful  entry,  obtaining
services under false pretenses,  and  failure  to  obey  an  order  or
regulation.  He now requests that his BCD be  upgraded  on  the  basis
that the punishment was too harsh in  comparison  to  others  who  had
committed similar crimes.  In addition, he states he complied with all
aspects of his punishment and now has become a  fully  productive  and
valuable member of society.  After a thorough review of the facts  and
circumstances of this case, we find no evidence which  indicates  that
the applicant’s BCD was improper or that it exceeded  the  limitations
set  forth  in  the  Uniform  Code   of   Military   Justice   (UCMJ).
Furthermore, while we  note  his  apparent  successful  transition  to
civilian life, we do not find upgrading the applicant’s BCD  based  on
clemency appropriate in this case due to the  serious  nature  of  the
offenses committed.  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.

_________________________________________________________________

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-
2005-00795 in  Executive  Session  on  14  September  2005  under  the
provisions of AFI 36-2603:

                             Ms. Kathleen F. Graham, Panel Chair
                             Ms. Kathy L. Boockholdt, Member
                             Mr. Wallace F. Beard, Jr., Member

The following documentary evidence was considered:

   Exhibit A.  DD Form 149, dated 20 Mar 05, w/atchs.
   Exhibit B.  Master Personnel Records.
   Exhibit C.  FBI Report.
   Exhibit D.  Letter, AFLSA/JAJM, dated 11 May 05.
   Exhibit E.  Letter, SAF/MRBR, dated 20 May 05.
   Exhibit F.  Letter, AFBCMR, 14 Jun 05, w/atch.
   Exhibit G.  Letter, AFBCMR, 30 Jun 05, w/atch.




                                        KATHLEEN F. GRAHAM
                                        Panel Chair