RECORD OF PROCEEDINGS
             AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS

IN THE MATTER OF:      DOCKET NUMBER:  BC-2008-00977
                       INDEX CODE:  110.00
                       COUNSEL:  NONE
                       HEARING DESIRED:  YES

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APPLICANT REQUESTS THAT:

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

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APPLICANT CONTENDS THAT:

He had ineffective counsel, he experienced discrimination  during  his
Line of Duty (LOD) determination, and he was never placed on appellate
leave following his court-martial.  The stress of his health  problems
was an underlying factor of his  behavior  which  contributed  to  his
discharge.

In support of his appeal, applicant submitted  a  personal  statement,
documents  extracted  from  his  military  records  and  documentation
associated with his LOD determination.

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

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STATEMENT OF FACTS:

On 19 May 89, the applicant contracted his initial enlistment  in  the
Regular Air Force.  He was progressively  promoted  to  the  grade  of
staff sergeant having assumed that grade effective and with a date  of
rank of 1 Mar 03.

The applicant was tried by general court-martial  on  20  Dec  04  for
making false and fraudulent  claims  against  the  United  States  and
stealing military currency.  He was found guilty and  sentenced  to  a
reduction in grade to airman basic, a fine  of  $29,000.00,  11 months
confinement and a BCD.  The applicant requested clemency in  the  form
of the  suspension  or  disapproval  of  the  confinement  imposed  at
sentencing.  The convening authority considered clemency and found the
sentence to  be  appropriate,  but  suspended  until  1  Nov  05,  the
execution of that part of the sentence adjudging  confinement  for  11
months.  His case was appealed to the  Air  Force  Court  of  Criminal
Appeals (AFCCA), which held the findings and sentence to be correct in
law and fact.  No appeal was made to the  Court  of  Appeals  for  the
Armed Forces.  He submitted a request for clemency and his request was
denied.

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AIR FORCE EVALUATION:

AFLOA/JAJM recommends the requested relief  be  denied.   JAJM  states
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).

The applicant has identified no error  or  injustice  related  to  his
prosecution  or  sentence.   Air  Force  Instruction   (AFI)   51-201,
Administration of Military Justice states  that  members  of  the  Air
Force Reserves may be removed from  active  duty  status  rather  than
being placed in excess  leave,  and  then  recalled  as  necessary  to
complete appellate review.  This is what happened in  the  applicant’s
case and the AFCCA addressed this issue and found removal from  active
duty status appropriate.

His claims of ineffective assistance of counsel at trial  are  without
merit.  He contends that his trial defense counsel failed  to  present
matters in sentencing regarding his treatment by military  authorities
during his LOD  determination,  and  failed  to  diligently  pursue  a
request for administrative discharge in lieu of court-martial.  It  is
clear from the record of trial and defense counsel’s sworn declaration
that this is not the case.  Evidence relating to  the  LOD  processing
was presented in the Stipulation of Facts, the providence inquiry, the
applicant’s  oral  and  written  unsworn  statement  and  a  character
statement.  Moreover, at no time before the trial  did  the  chain  of
command indicate they would support a Chapter 4 request.

There was nothing found in  the  record  or  evidence  submitted  that
indicates  the  applicant’s  drawn  out  LOD  process   was   racially
motivated.

While clemency may be granted, it is not warranted in the  applicant’s
case.  Prior to trial, he entered into a pretrial agreement  where  he
agreed to plead guilty  in  exchange  for  a  cap  on  the  amount  of
confinement he could receive.  Prior to accepting his guilty plea, the
military judge ensured he understood the meaning  and  effect  of  his
pleas and the maximum punishment that could be imposed if  the  guilty
plea was accepted by the court.   The judge explained the elements and
definitions of the offenses to which the applicant  pled  guilty,  and
the applicant explained in his  own  words  why  he  believed  he  was
guilty.

Upon the  court’s  acceptance  of  the  applicant’s  guilty  plea,  it
received  evidence  in  aggravation,  as  well  as   in   extenuation,
information about the  circumstances  surrounding  the  offenses,  and
mitigation, information about the applicant, prior to  determining  an
appropriate sentence for the crime committed.

The applicant has already availed himself of the clemency process.  In
his clemency request, he only asked that he  receive  no  confinement,
mentioning  nothing  of  disapproval  of  the  BCD.    The   convening
authority, after considering all the matters  submitted  in  clemency,
properly exercised his ultimate authority in  determining  the  amount
and nature of clemency granted.

AFLOA/JAJM’s complete evaluation is at Exhibit C.

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APPLICANT'S REVIEW OF AIR FORCE EVALUATION:

A copy of the Air Force evaluation was forwarded to the  applicant  on
18 Jul 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 error or injustice.  We  are  not  persuaded  by  the
evidence provided, that the actions taken against the  applicant  were
improper, contrary to the provisions of the governing regulations,  or
that he was denied rights to which he was entitled.  The  comments  of
the Office of the Judge Advocate 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 his appeal, we do not  believe  he  has  suffered  from  an
injustice.  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   issues   involved.
Therefore, the request for a hearing is not favorably considered.

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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.

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The following members of the Board considered AFBCMR  Docket  Number
BC-2008-00977 in Executive Session on 16 Sep 08 under the provisions
of AFI 36-2603:

                 Mr. Joseph D. Yount, Panel Chair
                 Mr. Grover L. Dunn, Member
                 Mr. Richard K. Hartley, Member

The following documentary evidence was considered:

      Exhibit A.  DD Form 149, dated 18 Mar 08, w/atchs.
      Exhibit B.  Applicant's Master Military Personnel Records.
      Exhibit C.  Letter, AFLOA/JAJM, dated 25 Jun 08.
      Exhibit D.  Letter, SAF/MRBR, dated 18 Jul 08.




                                        JOSEPH D. YOUNT
                                        Panel Chair