RECORD OF PROCEEDINGS
             AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS


IN THE MATTER OF:      DOCKET NUMBER:  BC-2006-01739
            INDEX CODE:  105.00, 110.00

            COUNSEL:  NONE

            HEARING DESIRED:  NO

MANDATORY CASE COMPLETION DATE:  10 DEC 07

_________________________________________________________________

APPLICANT REQUESTS THAT:

1.  He receive a Presidential pardon removing his  court-martial  conviction
and bad conduct discharge (BCD) from his record.

2.  He be reinstated to active duty at the highest rank held.

_________________________________________________________________

APPLICANT CONTENDS THAT:

His sentence was overly harsh as it included a BCD, six months  confinement,
and a reduction to the grade of airman basic.  The military court  convicted
him of larceny of $6,777  by  fraudulently  receiving  Basic  Allowance  for
Quarters (BAQ) at the with dependents  rate  and  refusing  to  support  his
spouse.  In a separate action, Finance required him to  repay  over  $17,000
for overpayments.  Since the court stated he was only  overpaid  $6,777  and
handed down a sentence on that fact, the reparations made the sentence  even
greater, above and beyond the sentence handed down by the court.  He  repaid
nearly three times what he was convicted  of  stealing  and  still  had  his
military career ruined and his personal life made more difficult by a  felon
conviction.  He did not have an intent to steal.   He  was  married  at  the
time and was being paid his with dependents BAQ and honestly thought he  was
entitled since, even though his wife who had decided to live away  from  him
refused his support.

Applicant’s complete submission is at Exhibit A.

_________________________________________________________________

STATEMENT OF FACTS:

The applicant having served  19  years  and  24  days  on  active  duty  was
discharged with service characterized as bad conduct  under  the  provisions
of General Court-Martial Order  No.  14.   Dates  of  time  lost  reflect  4
January 1995 through 28 June 1995.

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

Charge 1:  Article 132

        Specification 1:  He did, on or about 12 May 1993  by  preparing  an
AF Form 594, Authorization to Start, Stop, or Change BAQ, Rent Plus,  and/or
Variable Housing Allowance (VHA) for presentment for  approval  or  payment,
make a claim against the United States, in the  amount  of  $18,777.94,  for
BAQ at with dependent rate and VHA at with dependent rate, which  claim  was
false and fraudulent in the amount of $6,005.50 in that  it  certified  that
said he provided adequate support for his dependent wife, was known  by  the
applicant to be false and fraudulent.  The applicant pleaded not guilty.

        Specification 2:  He did, between on or about 13 May  1993,  and  on
or about 30 November 1993 by preparing  a  DFAS  Form  704,  Recertification
Statement, BAQ, COLA, FSA, OHA, and/or VHA, for presentment for approval  or
payment, make a claim against the United States in the amount of  $4,293.93,
for BAQ with dependent rate and VHA at with dependent rate, which claim  was
false and fraudulent in the amount of $1,375.09 in that  it  certified  that
he provided adequate support for his dependent wife and that  his  dependent
wife resided with him and  was  known  to  be  false  and  fraudulent.   The
applicant pleaded not guilty.

Charge II: Article 107

        Specification 1:  He did,  on  or  about  28  September  1990,  with
intent to deceive, sign an official record, to wit, AF Form 594,  was  false
in that it certified that the applicant provided adequate  support  for  his
dependent wife, was  known  to  be  false  and  fraudulent.   The  applicant
pleaded not guilty.

        Specification 2:  He did, on or about 13 May 1993,  with  intent  to
deceive, sign an official record to wit a DFAS Form 704,  which  record  was
false in that it  certified  that  he  provided  adequate  support  for  his
dependent wife, that his dependent wife resided with him, and that his  rent
payment was $9,999.99 and  was  then  known  to  be  false.   The  applicant
pleaded not guilty.

        Specification 3:  He did, on or about 22 December 1993, with  intent
to deceive, make to two Special  Agents,  an  official  statement,  to  wit:
That when he and his wife separated she told him  she  didn’t  want  him  to
support her, which statement, was totally false, and was then  known  to  be
false.  The applicant pleaded guilty.

Charge III:  Article 121

        Specification:  He did, on or about 28  September  1990  and  on  or
about 30 November 1993, steal approximately $7,380.59, military property  of
the United States Air Force.  He pleaded guilty, except for  the  words  and
figures:  “28 September 1990” and “$7,380.59”  and  substituting  therefore,
respectively the words and figures:  “1  April  1991”  and  $6,269.44.”   He
pleaded not guilty, except for the words and figures:  “28  September  1990”
and “$7,380.59” and  substituting  therefore,  respectively  the  words  and
figures:  “1 April 1991” and “$6,269.44.”

Charge IV:  Article 134

        Specification 1:  A married man did, on  divers  occasions  between,
on or about 23 August 1993 to on or  about  1  July  1994,  wrongfully  have
sexual intercourse with another woman not his wife.  The  applicant  pleaded
not guilty.

        Specification II:  He did, from about  1  November  1991  to  1 July
1994,  wrongfully  cohabitate  with  another  woman,  not  his  wife.    The
applicant pleaded not guilty.

The sentenced was adjudged on 4 January 1995.  He was  sentenced  to  a  bad
conduct discharge, confinement for seven months, and a  reduction  in  grade
from technical sergeant to airman basic.

_________________________________________________________________

AIR FORCE EVALUATION:

AFLOA/JAJM recommends denial.  JAJM states the  applicant’s  BCD  accurately
reflects the character of his service.  The applicant stole  $6,294.44  from
the Air Force by claiming the BAQ at the with dependent rate and VHA at  the
with dependent rate at a time he was not providing support to his  dependant
wife.  The larceny started when the applicant had been  on  active  duty  14
years and ended when applicant had 17 years of service.  With his length  of
service he would have been familiar with  the  regulations  related  to  the
“with dependent rate.”  The maximum punishment authorized for  the  offenses
for  which  the  applicant  was  convicted  was  a  dishonorable  discharge,
confinement for 10 years, and total forfeiture of pay and  allowances.   The
sentence was well within the legal limits and was a fitting  punishment  for
the offenses committed.  The sentence was appropriate for the  offenses  and
the  requested  relief,  an  upgrade  in   discharge   characterization   is
inappropriate given the seriousness  of  the  applicant’s  crimes.   Setting
aside  the  conviction  and  returning  the  applicant  to  active  duty  is
inappropriate given the nature of  the  applicant’s  crimes  and  discharge.
The applicant  has  failed  to  identify  the  existence  of  any  error  or
injustice related to his court-martial and resulting sentence.  Neither  has
he  presented  any  facts  or  circumstance  indicating  that  an  injustice
occurred.

The JAJM complete evaluation is at Exhibit C.

AFPC/DPPRS recommends denial.  DPPRS states based on  the  documentation  on
file in the master personnel records the discharge was consistent  with  the
procedural and substantive requirements of the  discharge  regulation.   The
discharge was within the discretion  of  the  discharge  authority  and  the
applicant did not submit any evidence or identify any errors  or  injustices
that occurred  in  the  discharge  processing.   Additionally,  he  did  not
provide any facts warranting a change to his bad conduct discharge.

The DPPRS complete evaluation is at Exhibit D.

AFPC/JA states upon  a  careful  review  of  the  allegations  and  evidence
presented by the applicant, JA concurs with the advisories provided by  JAJM
and DPPRS.

The JA complete evaluation, with attachment, is at Exhibit E.

_________________________________________________________________

APPLICANT'S REVIEW OF AIR FORCE EVALUATION:

On 18 August 2006, the evaluations  were  forwarded  to  the  applicant  for
review and comment within 30 days  (Exhibit  F).   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  an  injustice.   Title  10  USC,  Section  1552,
provides that the Air Force Board for Correction  of  Military  Records  may
correct any military record to correct an error or remove an injustice.   As
such, applicant's request for a Presidential pardon is  not  possible  since
such action is not within the purview of this Board's  authority.   However,
applicant may apply for a Presidential pardon under the provisions of  Title
28, Code of Federal Regulations, Section 1.1.  For  courts-martial  convened
within the Air Force, pardon applications  should  be  sent  to  AFLOA/JAJR,
Bolling Air Force Base.  In regard  to  his  request  to  be  reinstated  to
active duty, we agree with the  opinions  and  recommendations  of  the  Air
Force offices of primary responsibility and adopt  their  rationale  as  the
basis for our conclusion that  the  applicant  has  failed  to  sustain  his
burden that he has suffered either an error or an injustice.  Therefore,  we
find no compelling basis to recommend granting the relief sought.

_________________________________________________________________

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-2006-
01739 in Executive Session on 21 September 2006,  under  the  provisions  of
AFI 36-2603:

                 Mr. Michael K. Gallogly, Panel Chair
                 Mr. Joseph D. Yount, Member
                 Mr. Gregory A. Parker, Member

The following documentary evidence was considered:

   Exhibit A.  DD Form 149, dated 2 Jun 06.
   Exhibit B.  Applicant's Master Personnel Records.
   Exhibit C.  Letter, AFLOA/JAJM, dated 31 Jul 06.
   Exhibit D.  Letter, AFPC/DPPRS, dated 7 Aug 06.
   Exhibit E.  Letter, AFPC/JA, dated 14 Aug 06, w/atchs.
   Exhibit F.  Letter, SAF/MRBR, dated 18 Aug 06.




                       MICHAEL K. GALLOGLY
                       Panel Chair