RECORD OF PROCEEDINGS
         AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS

IN THE MATTER OF:      DOCKET NUMBER:  BC-2007-00594
            INDEX CODE:  110.02

      XXXXXXX    COUNSEL:  NONE

            HEARING DESIRED: NO


MANDATORY CASE COMPLETION DATE:  1 SEP 2008


___________________________________________________________________

APPLICANT REQUESTS THAT:

His Bad Conduct Discharge  (BCD)  be  upgraded  to  general  (under
honorable conditions).

___________________________________________________________________

APPLICANT CONTENDS THAT:

He along with another military person was  convicted  in  the  same
court but the other member was allowed to stay in  and  receive  an
honorable discharge; however, he was discharged  with  a  BCD.   He
feels he should have received the same type  of  discharge  as  the
other military member.

Applicant is truly sorry for the problems and embarrassment that he
caused the Air Force and wish things would have been different.  He
hopes to obtain a general discharge and to rejoin the Air Force.

In support of his appeal, applicant submitted a personal  statement
and two character affidavits.

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

___________________________________________________________________

STATEMENT OF FACTS:

On 15 Aug 91, the applicant enlisted in the Regular Air Force for a
period of four years.  Prior to the  events  cited  below,  he  was
promoted to the grade of senior airman  (E-4),  with  an  effective
date and date of rank of 5 Dec 94.

A  resume  of  applicant’s  enlisted  performance  reports   (EPRs)
follows:

            PERIOD CLOSING              OVERALL EVALUATION

                 18 Apr 93                                    4
                 04 Feb 94                                    5
                 04 Feb 95                                    5
                 04 Feb 96                                    5
                 04 Feb 97                                    5

On 11 Jun 98, applicant was tried by General Court-Martial.  He was
charged with (Charge I) one specification of conspiracy  to  commit
larceny of $8, 281.65 from  the  United  Parcel  Service  (UPS)  in
violation of Article 81, UCMJ, (on or  about  14 Aug 97  to  on  or
about 9 Sep 97); (Charge II) two specifications of  larceny  on  or
about 5 Nov ($33.65) and 18 Nov 97 ($8, 281. 65)  in  violation  of
Article 121, UCMJ; and (Charge III) one specification of soliciting
another to commit larceny, in violation of Article 134 of the UCMJ.
 Applicant pled guilty to Charge I and II, and not guilty to Charge
III.  The convening  authority  disapproved  the  findings  of  one
larceny specification, substituting therefore a  finding  of  guilt
for attempted larceny, in violation of Article 80,  UCMJ.   He  was
sentenced to reduction in grade to airman basic (E-1),  confinement
for six months, and a bad conduct discharge.

On 6 Aug 01, applicant was discharged pursuant to the General Court-
Martial Order, with a bad conduct discharge.  He was credited  with
7 years and  16  days  of  active  duty  (excludes  time  lost  for
confinement from 11 Jun 98 to 22 Oct 98 and 13 Jan 99 to 6 Aug 01).

___________________________________________________________________

AIR FORCE EVALUATION:

AFLOA/JAJM recommends denial.   The  applicant  was  convicted  and
sentenced to reduction to E-1, confinement for six  months,  and  a
BCD.  The Air Force Court of Criminal Appeals affirmed the findings
and sentence on 2 Feb 01.  The petition for further review  to  the
Court of Military Appeals was denied on 26 Jun 01.

With regard to the choice of forum, commanders “on the scene”  have
first-hand access to facts, and a unique appreciation for the needs
of morale and discipline in  their  command  that  even  the  best-
intentioned higher headquarters cannot match.  So long as they  are
lawfully acting within the scope of authority granted them by  law,
their judgment should not be disturbed just  because  others  might
disagree.

AFLOA/JAJM further states the applicant is not  contending  that  a
specific error occurred which requires a correction of  his  court-
martial record.   Thus,  any  decision  regarding  the  applicant’s
discharge status would be done as a matter of clemency.   There  is
no basis for any relief as to the sentence.  The Air Force Court of
Criminal Appeals reviewed the sentence under all the  circumstances
and found the applicant’s sentence of reduction in rank, six months
confinement, and BCD, was well within the legal limits and  was  an
appropriate punishment for the offenses committed

The AFLOA/JAJM evaluation is at Exhibit D.

___________________________________________________________________

APPLICANT'S REVIEW OF AIR FORCE EVALUATION:

In his response, applicant thought his discharge would be  upgraded
automatically.  He only  wants  what’s  in  the  best  interest  of
himself and his family and further  described  his  accomplishments
since leaving the service.

Applicant’s complete submission is at Exhibit F.

___________________________________________________________________

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 error or injustice.  We took notice of
the applicant's complete submission in judging the  merits  of  the
case.  The evidence of record reflects the applicant was  convicted
by general court-martial for one  specification  of  conspiracy  to
commit larceny, one specification of larceny, one specification  of
attempted larceny and one specification of  soliciting  another  to
commit larceny resulting in a bad conduct discharge.   No  evidence
has been  presented  which  would  lead  us  to  believe  that  the
applicant’s service characterization was improper.  The Board noted
the letters of  character  reference  submitted  with  his  appeal.
Nonetheless, in view of the seriousness of the  offenses  committed
during the period of service under review,  we  are  not  persuaded
that an  upgrade  of  the  characterization  of  his  discharge  is
warranted  based  on  clemency.   Therefore,  in  the  absence   of
persuasive evidence to the contrary, we adopt the Air  Force  Legal
Operations Agency’s rationale as the basis for our conclusion  that
the applicant has not been the victim of an error or injustice  and
conclude that no basis exists  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 AFBCMR Docket  Number
BC-2007-00594 in Executive Session  on  26  June  2007,  under  the
provisions of AFI 36-2603:

      Ms. Patricia J. Zarodkiewicz, Vice Chair
      Mr. Jeffery R. Shelton, Member
      Ms. Dee R. Reardon, Member

The following documentary evidence was considered:

    Exhibit A.  DD Form 149, dated 5 Mar 07.
    Exhibit B.  Applicant's Master Personnel Records.
    Exhibit C.  Letter, AFLOA/JAJM, dated 22 Apr 07.
    Exhibit D.  Letter, SAF/MRBR, dated 11 May 07.
    Exhibit E.  Letter, Applicant, dated 15 May 07.




                                   PATRICIA J. ZARODKIEWICZ
                                   Vice Chair