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AF | BCMR | CY2007 | BC-2007-02113
Original file (BC-2007-02113.doc) Auto-classification: Denied

                       RECORD OF PROCEEDINGS
         AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS

IN THE MATTER OF:      DOCKET NUMBER:  BC-2007-02113
            INDEX CODE:

            COUNSEL:  NONE

            HEARING DESIRED: YES

_________________________________________________________________

APPLICANT REQUESTS THAT:

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

_________________________________________________________________

APPLICANT CONTENDS THAT:

He was young at the time of the  incidents  that  led  to  his  court-
martial.   He  lacked  knowledge  and  suffered  from  a   psychiatric
disorder.  He was never offered social actions or any  other  type  of
rehabilitation.  He asserts his punishment was unduly harsh and  notes
he has had no post-discharge involvement  with  the  criminal  justice
system.

In support of his appeal, the applicant has provided copies of his  DD
Form 214, Certificate of Release or Discharge from  Active  Duty,  and
letters of support.

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

_________________________________________________________________

STATEMENT OF FACTS:

Applicant enlisted in the Regular Air Force on 26 May  1978.   Between
30 October 1979 and 6 November 1980, he was issued  five  (5)  Article
15’s for “Failure to Go” to his appointed place of duty.  He forfeited
a total of $725 and accumulated 47 days of additional duty as part  of
the punishment he received for the Article 15’s.  He  was  reduced  in
grade from airman first class (A1C) to airman  (Amn)  on  20  November
1979 and reduced in grade from Amn to airman basic (AB) on 12 December
1979.  On 22 August 1980, he was found guilty  of  wrongfully  selling
and wrongfully transferring marijuana for which he was sentenced to  a
BCD and three months confinement at hard labor.  On 10 July  1981,  he
was discharged with a BCD for Conviction by Court Martial – Other than
Desertion.  He had served for 2 years,  10  months  and  25 days.   He
filed an application with the Air Force Discharge Review Board (AFDRB)
on 23 March 1990 and on 31 October  1990  (in  person  with  counsel).
Both applications were denied based on the finding that  the  punitive
discharge adjudged was appropriate.

_________________________________________________________________

AIR FORCE EVALUATION:

AFLOA/JAJM recommends  denial.   JAJM  states  the  applicant  availed
himself of all appellate rights to which he  was  entitled  under  the
law.  His punishment was well within legal limits and appropriate  for
the offenses committed.  JAJM notes  while  clemency  may  be  granted
under 10 United  States  Code  (U.S.C.)  1552(f)  (2),  the  applicant
provides no  justification  for  his  request,  and  clemency  is  not
warranted in this case.  There being no evidence  of  clear  error  or
injustice, JAJM recommends the Board deny his request.

The remaining pertinent legal facts are contained in the evaluation
prepared by JAJM at Exhibit C.

_________________________________________________________________

APPLICANT'S REVIEW OF AIR FORCE EVALUATION:

A copy of the Air Force evaluation was forwarded to the applicant on 5
October 2007 for review and comment within 30 days.  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 error or injustice.  The comments of  the  Office  of
the Judge Advocate General are supported by the  evidence  of  record.
We find no evidence  of  error  in  this  case  and  after  thoroughly
reviewing the documentation that has  been  submitted  in  support  of
applicant's appeal,  we  do  not  believe  he  has  suffered  from  an
injustice.  The  discharge  appears  to  be  in  compliance  with  the
governing Air Force Regulation  (AFR)  and  we  find  no  evidence  to
indicate that his separation from the  Air  Force  was  inappropriate.
Therefore, based on the available evidence of record, we find no basis
upon which to favorably consider this application.

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 involved.  Therefore,
the request for a hearing 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 AFBCMR Docket Number BC-
2007-02113 in  Executive  Session  on  27  November  2007,  under  the
provisions of AFI 36-2603:

      Mr. Thomas S. Markiewicz, Chair
      Ms. Debra K. Walker, Member
      Mr. Kurt R. LaFrance, Member

The following documentary evidence was considered:

    Exhibit A. DD Form 149, dated 13 July 2007, w/atchs.
    Exhibit B. Applicant's Master Personnel Records.
    Exhibit C. Letter, AFLOA/JAJM, dated 14 September 2007.
    Exhibit D. Letter, SAF/MRBR, dated 5 October 2007.




                                   THOMAS S. MARKIEWICZ
                                   Chair

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