RECORD OF PROCEEDINGS

         AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS



IN THE MATTER OF:      DOCKET NUMBER:  BC-2005-02645
            INDEX CODE:  106.00, 110.02
       XXXXXXXXXXX     COUNSEL:  NOT INDICATED

      XXXXXXXXXXXX     HEARING DESIRED:  NO

MANDATORY CASE COMPLETION DATE:  27 FEB 2007

_________________________________________________________________

APPLICANT REQUESTS THAT:

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

_________________________________________________________________

APPLICANT CONTENDS THAT:

His discharge was appealed and upgraded to a general discharge.

In support of his request, applicant provided a copy of  his  DD  Form
214, Certificate of Release or Discharge from Active Duty.

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

_________________________________________________________________

STATEMENT OF FACTS:

The applicant entered into the Regular Air Force on 19  November  1986
and was progressively promoted to the grade of airman.

In December 1987 and January 1988, he was  charged  with  operating  a
vehicle while drunk, failure to go to appointed  place  of  duty,  and
violation  of  a  general  regulation.   He  was  also  charged   with
disrespectful language and willfully disobeying a lawful order.

On 11 February 1988, he was found guilty by a special court-martial of
all  specifications  and  charges.   He  was  sentenced  to   a   BCD,
confinement for four months, and forfeiture of $400.00 per  month  for
four months.

His case was reviewed by the United States Air Force Court of Military
Review, which is now called the Air Force Court of  Criminal  Appeals.
On 28 July 1988, the Air Force Court of Military Review set aside  the
findings  of  guilty  of  using  disrespectful  language  toward   two
noncommissioned  officers.   The   specification   and   charge   were
dismissed.  The court reassessed the sentence  and  approved  only  so
much of the sentence as included a BCD, confinement  for  two  months,
and forfeiture of $200.00 per month for two months.  A petition to the
Court of Military Review was  not  submitted.   The  final  order  was
promulgated on 3 January 1989, and the BCD  executed.   The  applicant
was discharged with a BCD on 31 January 1989.

He served two years and two months of active duty service.

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 E.

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AIR FORCE EVALUATION:

AFLSA/JAJM recommends denial.  JAJM states the applicant’s contentions
are  untimely,  without  merit  and  constitute  neither   error   nor
injustice.   JAJM  states  ordinarily,   applicants   must   file   an
application within three  years  after  the  error  or  injustice  was
discovered, or, with due diligence, should have been  discovered.   An
application not timely filed may be denied  on  that  basis,  although
untimely filing may be excused in the interest  of  justice.   Nothing
has changed since the final order was promulgated  in  1989,  and  the
applicant does not allege any injustice or error.  The application  is
dated 11 August 2005, more than sixteen  years  after  his  discharge.
The application is therefore untimely.  Aside from being untimely, the
substance of the application is without merit.

The applicant alleges no specific error requiring  the  correction  of
his court-martial record, and there is no indication in the record  of
such an error.  During his court martial, the  applicant  had  pleaded
guilty to drunk driving.  At the time of the conduct, applicant was 20
years old.  He got drunk because a woman left him.  In his March  1988
petition for clemency, he asserted he  had  found  a  new  woman,  had
fallen in love, was engaged to be married, and was more  mature.   The
applicant’s  sentence  of  a  bad  conduct   discharge,   two   months
confinement, and $400 forfeiture were well within the legal limits and
was an appropriate punishment for the offense  committed.   Thus,  any
decision to upgrade the applicant’s discharge status would be done  as
a matter of clemency.

While clemency is an option, there is  no  reason  for  the  Board  to
exercise clemency in this case.  The applicant has identified no error
or  injustice  related  to  his  prosecution  or  the  sentence.   The
applicant presents insufficient  evidence  to  warrant  upgrading  his
discharge characterization, and  does  not  demonstrate  an  equitable
basis for relief.  In addition, his request, made  more  than  sixteen
years after the court-martial, is untimely.

The AFLSA/JAJM evaluation is at Exhibit C.

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APPLICANT'S REVIEW OF AIR FORCE EVALUATION:

A copy of the Air Force evaluation was forwarded to the  applicant  on
28 Oct 05, for review and comment within 30 days.  As  of  this  date,
this office has received no response.

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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 injustice.  After  careful  consideration
of the evidence of record, we found no  indication  that  the  actions
taken to affect  his  discharge  were  improper  or  contrary  to  the
provisions of the governing regulations in effect at the time, or that
the actions taken against the applicant were based  on  factors  other
than his own misconduct.  The Board also notes no  evidence  has  been
presented to substantiate the applicant’s claim that his  bad  conduct
discharge was appealed and subsequently upgraded to a  general  (under
honorable  conditions)  discharge.   Therefore,  we  agree  with   the
opinions and recommendations  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 an error  or  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 Docket  Number  BC-2005-
02645 in Executive Session on 5 January 2006, under the provisions  of
AFI 36-2603:

                 Mr. John B. Hennessey, Panel Chair
                 Mr. Joseph D. Yount, Member
                 Mr. Charles E. Bennett, Member

The following documentary evidence was considered:

      Exhibit A. DD Form 149, dated 11 Aug 05, w/atch.
      Exhibit B. Applicant's Master Personnel Records.
      Exhibit C. Letter, AFLSA/JAJM, dated 18 Oct 05.
      Exhibit D. Letter, SAF/MRBR, dated 28 Oct 05.
      Exhibit E. Letter, FBI Response, dated 13 Dec 05.





      JOHN B. HENNESSEY
      Panel Chair