RECORD OF PROCEEDINGS
             AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS

IN THE MATTER OF:      DOCKET NUMBER:  BC-2008-00591
                       INDEX CODE:  110.00
                       COUNSEL:  Veterans of Foreign Wars
                       HEARING DESIRED:  NO

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APPLICANT REQUESTS THAT:

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

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APPLICANT CONTENDS THAT:

He would like his discharge upgraded in order to receive benefits.

Applicant's complete submission is at Exhibit A.

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STATEMENT OF FACTS:

On 4 Apr 80, the applicant enlisted in the Regular  Air  Force  as  an
airman basic for a period of four years.

On 20 Feb 81, he was tried by special court-martial for unlawful entry
with the intent to commit assault, assault consummated by battery  and
damaging military property.  He pled guilty and was convicted  of  all
charges.  He was sentenced to a BCD, confinement at hard labor for six
months, forfeiture of $334.00 per month for six months, and  reduction
to airman basic.  He served four and one half months confinement, with
the remaining confinement remitted as of 5 Jul 81.  The  remainder  of
the adjudged sentence was executed 20 Feb 81.

He was discharged on 22 Jan  82,  with  a  BCD.   He  served  1  year,
4 months and 22 days on active duty.  He had 4 months and 24  days  of
lost time.

Pursuant to the Board’s request, the Federal Bureau  of  Investigation
(FBI) provided a copy of an Investigative Report, which is at  Exhibit
C.

On  7  Apr  08,  the  Board  staff  requested  the  applicant  provide
documentation pertaining to his activities since leaving military
service (Exhibit F).  In response he provided a personal history.  His
complete response is at Exhibit G.

On 16 Apr 08 a copy of the FBI report was forwarded to  the  applicant
for review and comment within 30 days.  As of this date,  no  response
has been received by this office (Exhibit H).

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AIR FORCE EVALUATION:

AFLOA/JAJM recommends the requested relief be denied.   Under  10  USC
Section 1552, which amended the basic  correction  board  legislation,
the AFBCMR’s ability to correct records related to  courts-martial  is
limited.  Specifically, Section  1552  permits  the  correction  of  a
record to reflect actions taken by  reviewing  authorities  under  the
Uniform Code of Military Justice (UCMJ).  Additionally,  Section  1552
permits the correction of records related to action on the sentence of
courts-martial for the purpose of  clemency.   Apart  from  these  two
limited exceptions, the effect of Section 1552 is that the  AFBCMR  is
without authority to reverse, set aside, or otherwise expunge a court-
martial conviction that occurred on or after 5 May 1950 (the effective
date of the UMCJ).

While clemency may be granted under 10 U.S.C., Section 1552(f)(2),  he
has not provided any justification in  support  of  his  request,  and
clemency is not warranted in this case.  The Air Force Instruction 35-
2603,  paragraph  4.1.  states,"  The  applicant  has  the  burden  of
providing  sufficient  evidence  of   probable   material   error   or
injustice."  He has not provided any evidence that his sentence  to  a
BCD constituted an  injustice.   Nor  has  he  provided  any  evidence
indicating improvement in his behavior.

The military court weighed the evidence presented at trial and crafted
an appropriate sentence that addressed the applicant and his  criminal
conduct.  To overturn his punishment now would require  the  Board  to
substitute its judgment  for  that  rendered  by  the  court  and  the
convening authority over 20 years ago when the facts and circumstances
were fresh. The  Rules  for  Courts-Martial  states  that  a  BCD  "is
designed as punishment for bad-conduct rather than as a punishment for
serious offenses of either a civilian or military nature."  A  BCD  is
more than a service characterization, but is an appropriate punishment
for the crime he committed while a member of the armed forces.

AFLOA/JAJM's complete evaluation is at Exhibit D.

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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 Mar 08, for review and response within 30 days.  As of  this  date,
no response has been received by this office.

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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 an injustice.   We  took  notice  of  the
applicant's complete submission in judging the  merits  of  the  case;
however, we find the applicant has failed to  sustain  his  burden  of
proof that he has suffered either an error or an injustice.  Based  on
the documentation in the applicant's  records,  it  appears  that  the
characterization of his service and the processing  of  the  discharge
were  appropriate  and  accomplished  in  accordance  with  Air  Force
regulation.   We  also  find  insufficient  evidence  to   warrant   a
recommendation  that  the  discharge  be  upgraded  on  the  basis  of
clemency.  We have considered applicant's overall quality of  service,
the events which precipitated the  discharge  and  available  evidence
related to post-service activities and accomplishments.   On  balance,
we do not believe that  clemency  is  warranted.   Therefore,  in  the
absence of evidence to the contrary, we find no  compelling  basis  to
recommend granting the relief sought in this application.

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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-2008-00591 in Executive Session on 5 Jun 08 under the  provisions
of AFI 36-2603:

                       Mr. Thomas S. Markiewicz, Chair
                       Mr. Alan A. Blomgren, Member
                       Mr. Anthony P. Reardon, Member

The following  documentary  evidence  pertaining  to  AFBCMR  Docket
Number BC-2008-00591 was considered:

   Exhibit A.  DD Form 149, dated 4 Feb 08, w/atchs.
   Exhibit B.  Applicant's Master Personnel Records.
   Exhibit C.  FBI Investigative Report.
   Exhibit D.  Letter, AFLOA/JAJM, dated 11 Mar 08.
   Exhibit E.  Letter, SAF/MRBR, dated 28 Mar 08.
   Exhibit F.  Letter, SAF/MRBC, dated 7 Apr 08
   Exhibit G.  Letter, Applicant, dated 15 Apr 08.
   Exhibit H.  Letter, SAF/MRBC, dated 16 Apr 08.




                                        THOMAS S. MARKIEWICZ
                                        Chair