RECORD OF PROCEEDINGS
             AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS


IN THE MATTER OF:      DOCKET NUMBER:  BC-2005-02246
            INDEX CODE:  110.00

            COUNSEL:  NONE

            HEARING DESIRED:  YES

MANDATORY CASE COMPLETION DATE:  19 JAN 07

_________________________________________________________________

APPLICANT REQUESTS THAT:

Her bad conduct discharge (BCD) be upgraded to a  general  (under  honorable
conditions) or an honorable discharge.

_________________________________________________________________

APPLICANT CONTENDS THAT:

She was a scapegoat for a supply sting operation conducted by the Office  of
Special Investigation (OSI).  She further indicates she has lived with  this
incident hanging over her head and would like it  to  be  behind  her.   She
realizes what happened was not fair.

Applicant’s complete submission is at Exhibit A.

_________________________________________________________________

STATEMENT OF FACTS:

On 28 November 1979, the applicant enlisted in the Regular Air Force in  the
grade of airman basic for a period of four years.

The applicant was convicted by a general  court-martial  for  the  following
offenses:

Charge I:  Violation  of  the  Uniform  Code  of  Military  Justice  (UCMJ),
Article 121.

Specification 1:  In that the applicant, did at  Kirtland  Air  Force  Base,
New Mexico, on or about 8 November 1982, steal  five  white  candles,  of  a
value of about $2.00, the property of the United States.

Specification 2:  In that the applicant did at Kirtland Air Force Base,  New
Mexico, on or about 9 November 1982, steal a watch,  of  a  value  of  about
$35.00, the property of the United States.

Specification 3:  In that the applicant did at Kirtland Air Force Base,  New
Mexico, on or about 24 November 1982, steal two hot  cups,  of  a  value  of
$126.56, the property of the United States.

Specification 4:  In that the applicant did at Kirtland Air Force Base,  New
Mexico, on or about 27 November 1982, steal a lamp,  of  a  value  of  about
$20, the property of the United States.

Specification 5:  In that the applicant did at Kirtland Air Force Base,  New
Mexico, on or about 30 November 1982, steal a framed picture, of a value  of
about $25.00, the property of the United States.

Specification 6:  In that the applicant did at Kirtland Air Force Base,  New
Mexico, on or about  1  December  1982,  steal  five  packages  of  computer
microchips, of a value of about $91.25, the property of the United States.

Specification 7:  In that the applicant did, at  Kirtland  Air  Force  Base,
New Mexico, on  or  about  1  December  1982,  steal  two  micrometers  with
calibration gauges, of a value of about $61.00, the property of  the  United
States.

Charge II:  Violation of the UCMJ, Article 134.

Specification 1:  In that the applicant did, on or  about  1 December  1982,
wrongfully solicit a couple of airmen to commit murder by giving  them  five
packages of computer microchips and two micrometers with calibration  gauges
as payment to kill a staff sergeant.

Specification 2:  In that the applicant did, on or about  30 November  1982,
wrongfully communicate to a  senior  airman  a  threat  to  injure  a  staff
sergeant by putting LSD in his coffee.

Specification 3:  In that the applicant did, on or about  30 November  1982,
wrongfully communicate to a senior  airman  a  threat  to  injure  a  senior
master sergeant by placing LSD in his coffee.

Specification 4:  In that the applicant did on  or  about  1 December  1982,
wrongfully communicate to a  senior  airman  a  threat  to  injure  a  staff
sergeant by placing LSD in his coffee.

Pleas:  To all Specifications and Charges:  Not Guilty

Findings:  Specifications  1,  2,  3,  6,  and  7  of  Charge  I  -  Guilty;
Specifications 4 and 5 of Charge I - Motion for  a  finding  of  not  guilty
granted by the Military Judge; Specifications 1, 2, and  3 of  Charge  II  -
Not Guilty; Specification 4 and Charge II - Guilty.

The applicant was sentenced to a bad conduct discharge, confinement at  hard
labor for eight months, a forfeiture of $191.20 of pay for six  months,  and
a reduction in grade from airman first class to airman basic.

The sentence was adjudged on 31 January 1983.

Only so much of the sentence  as  provided  for  a  bad  conduct  discharge,
confinement at  hard  labor  for  six  months,  forfeiture  of  $191.00  and
reduction to airman basic was approved.

On 1 February  1984,  the  applicant  was  discharged  with  a  bad  conduct
discharge in the grade of airman basic,  under  the  provisions  of  General
Court-Martial Order Number 3.  She served 3 years, 7 months, and 13 days  of
total active duty service.  Dates of time lost during  that  period  were  2
December 1982 through 23 June 1983.

Pursuant to the  Board's  request,  the  Federal  Bureau  of  Investigation,
Clarksburg, West Virginia, provided an arrest record which is at Exhibit C.

_________________________________________________________________

AIR FORCE EVALUATION:

AFLSA/JAJM recommended denial indicating the application is  without  merit.
Under  10  United  States  Code  (USC)  1552(f),  which  amended  the  basic
corrections board  legislation,  the  Air  Force  Board  for  Correction  of
Military Record’s (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 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,  the  effect
of section 1552(f) is that 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  contends  that  she  was  a  scapegoat  for  a  supply  sting
operation and the court martial documents indicate  that  an  OSI  operative
was working with her in Supply.  The  operative  observed  her  steal  items
from the stock and then  bought  stolen  items  from  her,  which  may  have
encouraged her to steal  items  she  would  not  have  stolen  on  her  own.
However, she was found guilty of stealing the items and did  not  state,  at
the time, that she was coerced or otherwise forced to  steal  the  items  on
her own initiative.  The evidence also showed that she threatened  to  place
LSD in her supervisor’s coffee.  The  overwhelming  evidence  indicates  the
applicant was in fact guilty of the charges for which she was  found  guilty
and that she was not a scapegoat or otherwise entrapped into committing  the
offenses.  The entrapment issues the applicant raises before the BCMR  today
were fully  explored  before  the  members,  who  were  convinced  beyond  a
reasonable doubt that she stole military property of the  United  States  as
alleged.  The members were not convinced that she had solicited  another  to
commit murder and three specifications of  communicated  two  of  the  three
threats as charged and acquitted her  of  those  allegations.   The  members
clearly rejected her arguments, as did the appellate courts.

There  is  no  basis  for  upgrading   the   applicant’s   discharge.    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 her service in that the applicant did not serve her  enlistment
honorably.  Larceny from  the  Government  and  communicating  a  threat  to
another military member  are  dishonorable  acts.   The  maximum  punishment
authorized for the offenses for which the  applicant  was  convicted  was  a
dishonorable discharge, confinement for 10  years,  total  forfeitures,  and
reduction to airman basic.  The sentence was well within  the  legal  limits
and was a fitting punishment for the offenses committed.  The  sentence  was
appropriate  for  the  offenses.   The  requested  relief,  an  upgrade   in
discharge characterization, is inappropriate given the  seriousness  of  the
applicant’s crimes.

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

The evaluation is at Exhibit D.

_________________________________________________________________

APPLICANT'S REVIEW OF AIR FORCE EVALUATION:

On 9 September 2005, a copy of the Air Force  evaluation  was  forwarded  to
the applicant for review and response within 30 days  (Exhibit  E).   As  of
this date, no response has been received by this office.




On 20 October 2005, the applicant was provided the  opportunity  to  respond
to the FBI investigation within 20 days (Exhibit F).  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  an  injustice.   After  thoroughly  reviewing  the
evidence of 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.  While the applicant believes her 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  her  burden
that she 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.

4.    The applicant's case is adequately documented  and  it  has  not  been
shown that a personal appearance with or  without  counsel  will  materially
add to our understanding of the issue(s) involved.  Therefore,  the  request
for a hearing is not favorably considered.

_________________________________________________________________

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-
02246 in Executive Session on 23 March 2006, under the provisions of AFI 36-
2603:

                 Mr. Michael J. Maglio, Panel Chair
                 Ms. Jan Mulligan, Member
                 Mr. Michael J. Novel, Member

The following documentary evidence was considered:

   Exhibit A.  DD Form 149, dated 12 July 2005, w/atchs.
   Exhibit B.  Applicant’s Master Personnel Records.
   Exhibit C.  FBI Report.
   Exhibit D.  Letter, AFLSA/JAJM, 30 August 2005.
   Exhibit E.  Letter, SAF/MRBR, dated 9 September 2005, w/atch.
   Exhibit F.  Letter, AFBCMR, dated 20 October 2005, w/atch.




                       MICHAEL J. MAGLIO
                       Panel Chair