RECORD OF PROCEEDINGS
             AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS

IN THE MATTER OF:      DOCKET NUMBER:  BC-2005-02932

      XXXXXXX    COUNSEL:  NONE

      XXXXXXX    HEARING DESIRED:  NO

MANDATORY COMPLETION DATE:  26 MARCH 2007

_________________________________________________________________

APPLICANT REQUESTS THAT:

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

_________________________________________________________________

APPLICANT CONTENDS THAT:

The applicant makes no contentions.

Applicant’s complete submission is at Exhibit A.

_________________________________________________________________

STATEMENT OF FACTS:

Applicant enlisted in the Regular Air  Force  on  4  January  1989  and  was
progressively promoted to the grade of airman first class  (E-3).

On 7 November 1992, a panel of officer members convicted  the  applicant  of
larceny, forgery, secreting mail,  and  dishonorably  failing  to  pay  just
debts, after he entered mixed pleas.  The  Court  sentenced  him  to  a  bad
conduct discharge, 3 years  confinement,  forfeiture  of  $600  pay  for  36
months, and reduction to E-1, which the convening authority approved.

On 10 May 1993, the  United  States  Air  Force  Court  of  Military  Review
(AFCMR) found applicant’s plea of guilty to secreting mail  improvident  and
the evidence factually insufficient to support the litigated  debt  offense.
The AFCMR  set  aside  the  convictions  of  those  offenses,  authorized  a
rehearing on the mail offense and dismissed  the  debt  offense.  They  also
authorized a  rehearing  on  the  sentence  after  affirming  the  remaining
findings of guilty of  larceny  and  forgery.   After  receiving  the  AFCMR
decision, the convening authority dismissed the secreting mail  offense  and
directed a rehearing on sentence only. At  the  rehearing,  on      30  July
1993, the applicant requested trial by military judge  alone.  The  military
judge sentenced him to a  bad  conduct  discharge,  30  months  confinement,
forfeiture of $500 pay per month for 30 months, and reduction to E-1,  which
the convening authority approved.
The Air Force Clemency and Parole Board considered and denied  clemency  for
applicant on  13  July  1992.  The  applicant  completed  his  court-martial
sentence on 3 January 1993 and  was  released  from  parole  and  placed  on
Appellate Review Leave (ARL).  The  applicant’s  request  for  clemency  was
considered and denied on     14 May 1994.

On 16 March 1995, the Air Force Court of Criminal Appeals (AFCCA)  concluded
the findings and sentence were correct in law and  fact,  the  sentence  was
not inappropriate, and  no  error  prejudicial  to  applicant’s  substantial
rights occurred and affirmed the sentence. On 19 July  1995,  United  States
Court of Appeals for the Armed  Forces  (USCAAF)  denied  his  Petition  for
Grant of Review of the decision  of  the  AFCCA.  By  General  Court-Martial
Order No. 238, dated 14 August 1995,  the  applicant’s  sentence  to  a  bad
conduct discharge, confinement for 30 months, forfeiture  of  $500  pay  per
month for 30 months, and  reduction  to  airman  basic,  as  promulgated  in
General Court-Martial No. 64, Headquarters Fifteen Air  Force  (AMC),  dated
20 September 1993 was affirmed. The Article  71  (c)  having  been  complied
with the bad  conduct  discharge  was  ordered  executed  for  the  sentence
adjudged on     30 July 1993. He was discharged 18 September  1995  pursuant
to his DD Form 214.

_________________________________________________________________

AIR FORCE EVALUATION:

ALSA/JAJM recommends denial of the applicant's request.  There is  no  basis
for any relief as to the sentence. The applicant is not  contending  that  a
specific error has occurred which requires  the  correction  of  his  court-
martial record and there is no indication in the record of  such  an  error.
On 13 July 1992 and 14 March 1994, the Air Force Clemency and  Parole  Board
considered and  denied  clemency  for  the  applicant.  Thus,  any  decision
regarding the applicant’s discharge status, which would have been done as  a
matter of clemency, was previously considered and denied.

The  applicant  has  identified  no  error  or  injustice  related  to   his
prosecution or the sentence. The applicant presents no evidence  to  warrant
upgrading his  discharge  characterization,  and  does  not  demonstrate  an
equitable basis for relief. In addition, his request,  made  more  than  ten
years after the final order, is untimely.

ALSA/JAJM complete evaluation is at Exhibit C.

_________________________________________________________________

APPLICANT'S REVIEW OF AIR FORCE EVALUATION:

A copy of the Air Force evaluation was forwarded  to  the  applicant  on  23
December 2005 for review and comment within 30 days.  As of this date,  this
office has received no response.

_________________________________________________________________

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.  We are not persuaded  by  the  evidence
presented that the separation characterization  received  by  the  applicant
should be changed.  The member's  discharge  was  based  on  his  trial  and
conviction  by  a  general  court-martial.   While  law  precludes  us  from
reversing a court-martial conviction,  we  are  authorized  to  correct  the
records to reflect actions taken by reviewing officials and to  take  action
on the sentence of a military court based on clemency.  There is nothing  in
the available record that would cause us  to  disturb  the  actions  of  the
reviewing officials or to warrant a  correction  of  his  records  based  on
clemency.  In the absence of such evidence, 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  Docket  Number     BC-2005-
02932 in Executive Session on 8 February 2006, under the provisions  of  AFI
36-2603:

                       Mr. Thomas S. Markiewicz, Chair
                       Ms. Dorothy P. Loeb, Member
                       Ms. Barbara R. Murray, Member

The following documentary evidence was considered:

    Exhibit A.  DD Form 149, dated 7 Oct 05.
    Exhibit B.  Applicant's Master Personnel Records.
    Exhibit C.  Letter, AFLSA/JAJM, dated 15 Dec 05.
    Exhibit D.  Letter, SAF/MRBR, dated 23 Dec 05.



                                   THOMAS S. MARKIEWICZ
                                   Chair