RECORD OF PROCEEDINGS
             AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS

IN THE MATTER OF:                       DOCKET NUMBER:  BC-2005-01149
                                       INDEX CODE:  110.02
      XXXXXXXXXXXXXX                    COUNSEL: NONE

      XXXXXXXXXX                        HEARING DESIRED:  NO

MANDATORY CASE COMPLETION DATE:  7 October 2006

_________________________________________________________________

APPLICANT REQUESTS THAT:

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

_________________________________________________________________

APPLICANT CONTENDS THAT:

It is unjust that he is being  denied  Veterans  benefits  due  to  his  bad
conduct discharge after serving in Vietnam  and  paying  his  debt  for  the
crimes he committed by serving in Fort Leavenworth.

In support of his application, the applicant provided a DD Form  214,  Armed
Forces of the United States Report of Transfer  or  Discharge,  and  a  non-
eligibility letter from the Department of Veterans Affairs  (DVA).   A  copy
of the applicant’s complete submission, with attachments, is at Exhibit A.

_________________________________________________________________

STATEMENT OF FACTS:

On 15 May 1969, the applicant enlisted in the Regular Air Force at  the  age
of 19 in the grade of airman basic (E-1) for a period  of  four  years.   He
was progressively promoted to the grade  of  sergeant  (E-4)  effective  and
with a date of rank of 1 October 1971.   After  completing  basic  training,
the applicant was trained as an Apprentice Aircraft Maintenance  Specialist.
 The applicant received three enlisted performance reports from  the  period
15 May 1969 to 23 April 1972 with overall ratings of nine, nine, and one.

On 11-12 July 1972, the applicant was arraigned, tried and  convicted  at  a
special  court-martial  for  six  specifications   of   stealing   and   one
specification of falsely signing  a  personal  check  belonging  to  another
individual with the intent to defraud.  He was sentenced to  a  bad  conduct
discharged, forfeiture of all pay and allowances, confinement to hard  labor
for two years, and reduction to the grade of airman basic.  The  portion  of
the sentence of forfeitures subsequent to 1  December  1972,  in  excess  of
$160 per month for 12 months, was  suspended  until  30 November  1973  with
provisions for automatic remission thereafter.   On  6 September  1972,  the
staff judge advocate affirmed the applicant’s  conviction  and  sentence  as
legally sufficient.  On 14 September 1972, the convening authority  approved
the sentence as adjudged.  According to General Court-Martial  Order  Number
138, dated 14 August 1973,  the  Court  of  Military  Appeals  affirmed  the
conviction and sentence.

The applicant was separated with a bad conduct discharge on  23 August  1973
with a separation code of 292 (conviction  by  court-martial  -  other  than
desertion) and a reenlistment code of 2 (discharged under general or  other-
than-honorable conditions).  He had served 2 years, 10 months, and 1 day  on
active duty.  The applicant’s  time  lost  was  528  days  due  to  military
confinement.

Pursuant to the  Board’s  request,  the  Federal  Bureau  of  Investigation,
Clarksburg, WV, provided a copy of an  Investigation  Report  pertaining  to
the applicant, which is at Exhibit G.

_________________________________________________________________

AIR FORCE EVALUATION:

AFPC/DPPRS recommends denial.  DPPRS states the  applicant’s  discharge  was
consistent  with  the  procedural  and  substantive  requirements   of   the
discharge regulation in affect at that time.   Additionally,  the  discharge
was within the  discretion  of  the  discharge  authority.   It  is  DPPRS’s
opinion that the applicant did not submit any evidence or  facts  warranting
a change to his character of service.  The DPPRS evaluation  is  at  Exhibit
C.

_________________________________________________________________

APPLICANT'S REVIEW OF AIR FORCE EVALUATION:

A copy of the Air Force evaluation and the FBI report  were  forwarded  to
the applicant on 22 April 2005 and 22 June 2005  for  review  and  comment
(Exhibits D and G).   As  of  this  date,  this  office  has  received  no
response.

On 5 May 2005, the applicant was given the opportunity  to  submit  comments
about his post service  activities  (Exhibit  E).   The  applicant  provided
additional documentation of his personal  achievements  along  with  several
character references.  The applicant’s complete submission is at Exhibit  F.


_________________________________________________________________

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 probable error or injustice.  The  applicant’s  discharge  had
its basis  in  his  trial  and  conviction  by  a  court-martial.   We  are
constrained to note that, 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.   There  is
nothing in the evidence provided which would lead  us  to  believe  that  a
change to the actions of any  of  the  reviewing  officials  is  warranted.
Furthermore, we do not find clemency is appropriate in this case  based  on
the severity of the offense, stealing from Air Force members, and the short
period of  his  service.   The  applicant’s  post-service  was  considered;
however, based on his overall record, an upgrade of his  discharge  is  not
warranted.  Therefore, 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 this application in  Executive
Session on 8 September 2005, under the provisions of AFI 36-2603:

            Mr. Michael J. Novel, Panel Chair
            Ms. Cheryl V. Jacobson, Member
            Mr. Terry L. Scott, Member

The following documentary evidence for AFBCMR  Docket  Number  BC-2005-01149
was considered:

      Exhibit A.  DD Form 149, dated 30 Mar 05, w/atchs.
      Exhibit B.  Applicant's Master Personnel Records.
      Exhibit C.  Letter, AFPC/DPPRS, dated 21 Apr 05.
      Exhibit D.  Letter, SAF/MRBR, dated 22 Apr 05.
      Exhibit E.  Letter, AFBCMR, dated 5 May 05.
      Exhibit F.  Applicant’s Rebuttal, dated.
       Exhibit  G.   Letter,  AFBCMR,   dated   22   Jun   05,   w/FBI   Rpt
              979730TA2, dated 19 Nov 03.




                             MICHAEL J. NOVEL
                                             Panel Chair