RECORD OF PROCEEDINGS
             AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS


IN THE MATTER OF:      DOCKET NUMBER:  BC-2005-02113
            INDEX CODE:  110.00

            COUNSEL:  NONE

            HEARING DESIRED:  NO

MANDATORY CASE COMPLETION DATE:  9 JAN 07

_________________________________________________________________

APPLICANT REQUESTS THAT:

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

_________________________________________________________________

APPLICANT CONTENDS THAT:

He desires his discharge upgraded.  He indicates  he  has  turned  his  life
around and is a model citizen.

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

_________________________________________________________________

STATEMENT OF FACTS:

On 20 March 1973, the applicant enlisted in the Regular  Air  Force  in  the
grade  of  airman  basic  for  a  period  of  six  years.   It  appears  the
applicant’s Total Active Federal Military Service (TAFMS) date was  adjusted
to 1 August 1973 due to 134 days of lost time.

On 17 August 1977, the applicant was convicted by  a  general  court-martial
for the following offense:

Charge I:  Violation  of  the  Uniform  Code  of  Military  Justice  (UCMJ),
Article 129.

    Specification:  The applicant did at Thetford, Norfolk, England,  on  or
about 10 December 1976, in the nighttime, burglariously break and enter  the
dwelling house of D--- N. A---, with intent to commit larceny therein.

Charge II:  Violation of the Uniform Code of Military Justice, Article 121.

    Specification 1:  The applicant did at Thetford,  Norfolk,  England,  on
or about 10 December 1976, steal one stereo cassette deck,  value  of  about
$173.00; one stereo reel to reel tape deck,  value  of  about  $145.00;  one
stereo receiver, value of about $45.00; two loud speakers,  value  of  about
$60.00; one stereo turntable,  value  of  about  $50.00;  one  stereo  noise
reduction unit, value of about $60.00; one portable tape recorder, value  of
about $3.00; one radio and cassette player,  value  of  about  $120.00;  two
sets of stereo headphones, value  of  about  $15.00;  one  multiband  radio,
value of about $15.00; one electronic flash, value of about $5.00; one  pair
of binoculars,  value  of  about  $12.00;  thirty-three  cassette  recording
tapes, value of about $5.00; nineteen reel recording tapes, value  of  about
$19.99; two motor cycle helmets,  value  of  about  $70.00;  one  electronic
calculator, value of about $5.00; one television,  value  of  about  $40.00;
one knife, value of about $7.00;  and  one  movie  camera,  value  of  about
$50.00; of a total value of about $899.00, the property of D--- N. A---.

     Specification  2:   The  applicant  did  at  Royal  Air   Force   Base,
Lakenheath, Suffolk, England,  during  November  1976,  steal  one  pair  of
binoculars, value of about $30.00, the property of  the  United  States  Air
Force.

The applicant was found guilty of the all specifications  and  charges.   He
was sentenced to confinement for six months, a  forfeiture  of  $100.00  per
month for six months, a reduction in grade from sergeant  to  airman  basic,
and a Bad Conduct Discharge.

The sentence was adjudged on 12 July 1977.

General Court-Martial Order Number 153, dated 22  November  1977,  indicates
so much of the sentence promulgated in General  Court-Martial  Order  Number
37, dated 17 August  1977,  as  pertained  to  confinement  and  forfeitures
remaining was remitted.

On 31 January 1978, the applicant was discharged  in  the  grade  of  airman
basic with a bad conduct discharge under the  provisions  of  General  Court
Martial Order Number 7 (Conviction by Court-Martial) and  was  issued  a  DD
Form 259AF - Bad Conduct certificate,  and  his  character  of  service  was
Under Other Than  Honorable  Conditions  (UOTHC).   He  served  four  years,
six months, and one day of total active military service  with  134 days  of
lost time from 12 July 1977 to 22 November 1977.

Pursuant to the  Board's  request,  the  Federal  Bureau  of  Investigation,
Clarksburg, West Virginia, provided an arrest record which is at Exhibit  C.
 The report reflects the misconduct which led to the applicant’s  discharge.
 There are no subsequent entries.

_________________________________________________________________
AIR FORCE EVALUATION:

AFLSA/JAJM indicated the  applicant’s  case  is  without  merit.   Under  10
U.S.C. 1552(f), which amended the basic corrections board  legislation,  the
Air Force Board for Correction of  Military  Record’s  (AFBCMR)  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  UCMJ.   Additionally,  section
1552(f)(2) permits the correction  of  records  related  to  action  on  the
sentence of a court-martial for the purpose of clemency.  Apart  from  these
two limited exceptions under 1552(f), the 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 UCMJ).

The applicant essentially contends that his bad conduct discharge  does  not
properly reflect the person he has become post-discharge.  However, the  bad
conduct designation  characterizes  the  applicant’s  service  when  it  was
rendered in 1977, not rehabilitative steps, taken subsequent  to  discharge,
however, commendable.  Given that, the overwhelming evidence indicates  that
there is no basis for upgrading the discharge characterization.

The appropriateness of  the  applicant’s  sentence,  within  the  prescribed
limits, is a matter within the discretion of the court-martial  and  may  be
mitigated by the convening authority or 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 discharge.  The applicant was thus afforded  all  rights  granted  by
statute and regulation.

Further,  the  applicant’s  punitive  discharge  accurately   reflects   the
character of his service.  His burglary and thefts from a co-worker and  the
government were fundamental betrayals  of  trust  and  dishonorable  actions
that reflected poorly on the Air Force and the quality  of  his  service  to
it, both then and now.  The maximum punishment authorized for  the  offenses
for  which  the  applicant  was  convicted  was  a  dishonorable  discharge,
confinement for 15 years and six months, total  forfeitures,  and  reduction
to airman basic.  The sentence was well within the legal limits  and  was  a
fitting  punishment  for  the  offenses  committed.   Because  the  sentence
appropriately reflected  the  seriousness  of  the  applicant’s  crimes,  an
upgrade in discharge characterization is inappropriate.

The  applicant  has  identified  no  error  or  injustice  related  to   his
prosecution or the sentence.  Because the  applicant  presents  insufficient
evidence to  warrant  upgrading  the  discharge,  does  not  demonstrate  an
equitable  basis  for  relief,  and  his  application  is   untimely,   they
recommended denial.

The evaluation is at Exhibit C.

_________________________________________________________________

APPLICANT'S REVIEW OF AIR FORCE EVALUATION:

On 16 September 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.

On 27 September 2005, the Board staff requested the applicant provide  post-
service documentation within 20 days (Exhibit F).   The  applicant  provided
additional documentation which is at 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 to timely file.

3.    Insufficient relevant evidence has been presented to  demonstrate  the
existence of an error or  an  injustice.   After  thoroughly  reviewing  the
evidence of record, we  find  no  evidence  to  show  that  the  applicant’s
discharge as a result of his conviction by court-martial  was  erroneous  or
unjust.  While the applicant believes his discharge should be  upgraded,  we
note  the  military  judge  concluded  that  a  punitive  discharge  was  an
appropriate punishment and the convening authority approved  the  discharge.
In view of the foregoing, we agree with the opinion  and  recommendation  of
the Military Justice Division and  adopt  the  rationale  expressed  as  the
basis for our decision that the applicant has failed to sustain  his  burden
that he has suffered either an error or an injustice.   Moreover,  based  on
the evidence of record, we find no compelling basis  to  recommend  granting
the relief sought on the basis of clemency.

_________________________________________________________________










THE BOARD DETERMINES THAT:

The applicant be notified the evidence presented  did  not  demonstrate  the
existence of an error or an injustice; the application was denied without  a
personal appearance; and 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-
02113 in Executive Session on 30 November 2005, under the provisions of  AFI
36-2603:

                 Mr. Thomas S. Markiewicz, Chair
                 Ms. Dorothy P. Loeb, Member
                 Ms. Renee M. Collier, Member

The following documentary evidence was considered:

   Exhibit A.  DD Form 149, dated 1 July 2005, w/atchs.
   Exhibit B.  Applicant’s Master Personnel Records.
   Exhibit C.  FBI Report.
   Exhibit D.  Letter, AFLSA/JAJM, 12 September 2005.
   Exhibit E.  Letter, SAF/MRBR, dated 16 September 2005.
   Exhibit F.  Letter, AFBCMR, dated 27 September 2005.
   Exhibit G.  Letter, Applicant, dated 3 October 2005, w/atchs.




                       THOMAS S. MARKIEWICZ
                       Chair