RECORD OF PROCEEDINGS

         AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS

IN THE MATTER OF:      DOCKET NUMBER:  BC-2008-03220
            INDEX CODE: 110.00
XXXXXXX     COUNSEL:  NONE
            HEARING DESIRED:  NO

_________________________________________________________________

APPLICANT REQUESTS THAT:

1.  His bad conduct discharge (BCD) be upgraded.

2.  His identification card (ID) and Department  of  Veterans  Affairs
(DVA) benefits be reinstated.

_________________________________________________________________

APPLICANT CONTENDS THAT:

His service was deemed honorable and he is proud to have served in the
Air Force.  Even though the charges occurred while he  was  on  active
duty they did not interrupt his service to the Air Force  and  to  the
job he loved.  He is truly sorry for what he  did.   He  believes  the
Board should find it in  the  interest  of  justice  to  consider  his
request because of his loyalty and dedication to the mission while  on
active duty.

In support of his request, applicant provided a copy of his  DD  Form
214, Certificate of Release or Discharge from Active Duty; copies  of
character reference  letters,  AF  Forms  910,  Enlisted  Performance
Report (AB-TSGT);  AF  Forms  931,  AB-TSGT  Feedback  Worksheet  and
various others documents in support of his request.

His complete submission, with attachments, is at Exhibit A.

_________________________________________________________________

STATEMENT OF FACTS:

The applicant enlisted in the Regular Air Force on 6 April 1992.

Between June 1996 and January  1997,  the  applicant,  then  a  senior
airman held an off-duty job as a part-time  sales  associates  with  a
jewelry store in Glendale, Arizona.  On  diver’s  occasions  he  stole
approximately $16,963.00 worth of jewelry,  in  violation  of  Article
121, Larceny and Wrongful  Appropriation,  Uniform  Code  of  Military
Justice (UCMJ).  On 15 October 1997, he was tried at a general  court-
martial at Luke Air Force Base (AFB).  At trial he stipulated that  on
multiple occasions he wrongfully stole items of jewelry from the store
where he was employed.  He sold many of the items at  pawn  shops  and
gave others to his girlfriend and mother.   He  pled  guilty  and  was
found guilty of the charge and specification.  He was sentenced  to  a
BCD, confinement for two years and reduced  to  the  grade  of  airmen
basic.  The convening authority approved the sentence as adjudged.

On 14 September 1998, he was discharged in the grade or  airman  basic
with a BCD.

On 24 December  2008,  a  request  for  post-service  information  was
forwarded to the applicant for response within 30 days.   In  response
to our request, applicant provided post-service information along with
character reference statements from his parents.

His complete response, with attachments, is at Exhibit F

_________________________________________________________________

AIR FORCE EVALUATION:

AFLOA/JAJM recommends denial.  JAJM states the  fact  the  applicant’s
crime  occurred  off  base  does  not  render  a   BCD   inappropriate
punishment.   The  maximum  available  punishment  for  his   offenses
included a dishonorable discharge and confinement for five  years.   A
BCD was an available and proper punishment for his offenses.

Second, his assertion that his crimes had no impact  on  his  military
service ignores the fact that he was  removed  from  his  position  as
Phase Inspection Team member prior to  trial,  placed  in  confinement
after trial and ultimately discharged with a  BCD.  At  his  trial  he
appeared to acknowledge the impact his  crimes  had  on  his  military
service when he apologized in an unsworn statement for the trouble and
pain he inflicted on the jewelry store, friends,  management,  family,
supervisors and the Air Force.

Third, evidence of his military character was considered at trial.  He
submitted his enlisted  performance  reports  and  numerous  character
statements  attesting  to  his  work  performance  and  rehabilitation
potential and discussed his duty performance in an unsworn  statement.
In fact,  his  military  character  was  addressed  during  sentencing
arguments.  Acknowledging that he had prior good  service,  government
counsel argued that his  crimes  were  an  embarrassment  to  military
members and  did  not  live  up  to  the  character  traits  his  rank
represented.  Government counsel argued he turned his back on the  Air
Force when he committed the offenses and therefore deserved a punitive
discharge.  Defense counsel  acknowledged  the  breach  of  trust  his
crimes represented but urged consideration of the  positive  character
statements submitted on his behalf  including  the  fact  six  of  the
statements were from noncommissioned officers who were  aware  of  his
crimes.  Accordingly, he had the opportunity to  present  evidence  of
his military character at trial and that evidence was considered.

While clemency may be granted it is not warranted  in  this  case.  To
accept his contention that his  service  should  be  characterized  as
honorable would require the  Board  to  overlook  his  general  court-
martial conviction for  larceny  of  approximately  $16,963  worth  of
jewelry from his off-duty employer.  Furthermore, it will require  the
Board to substitute its judgment for that rendered by  the  court  and
the convening authority over 11 years ago when evidence of  the  facts
and circumstances was fresh.  A BCD was a proper sentence and properly
characterizes his service.  The application is untimely and  there  is
no basis for upgrading the bad conduct discharge.

The complete JAJM evaluation is at Exhibit C.

_________________________________________________________________

APPLICANT'S REVIEW OF AIR FORCE EVALUATION:

A copy of the Air Force evaluation was forwarded to the  applicant  on
12 December 2008 for review and comment within 30 days.   As  of  this
date, this office has received no response (Exhibit D).

_________________________________________________________________

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 injustice.  After  careful  consideration
of  the  available  evidence,  we   agree   with   the   opinion   and
recommendation  of  the  Military  Justice  Division  and  adopt   its
rationale as the basis for our conclusion that the applicant  has  not
been the victim of an error or injustice.  We considered upgrading the
discharge based on clemency; however, we  do  not  find  the  evidence
presented is sufficient to compel us to recommend granting the  relief
sought on that basis.  Regarding his request for  issuance  of  an  ID
card and reinstatement of DVA benefits, we find no evidence  that  the
applicant meets eligibility requirements for issuance of  an  ID  card
and since we have no authority with respect to his eligibility for DVA
benefits, he must address his concerns to the DVA.  Therefore, in


the absence of evidence to the contrary, we find no basis  upon  which
to recommend granting the relief sought.

_________________________________________________________________

THE BOARD DETERMINES THAT:

The  applicant  be  notified  that  the  evidence  presented  did  not
demonstrate the existence of 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-
2008-03220  in  Executive  Session  on  29  January  2009,  under  the
provisions of AFI 36-2603:

                 Mr. Wayne R. Gracie, Panel Chair
                 Mr. Alan A. Blomgren, Member
                 Mr. Mark J. Novitski, Member

The following documentary evidence was considered:

  Exhibit A.  DD Form 149, dated 16 October 2008, w/atchs.
  Exhibit B.  Applicant's Master Personnel Records.
  Exhibit C.  Letter AFLOA/JAJM, dated 24 November 2008.
  Exhibit D.  Letter, SAF/MRBR, dated 12 December 2008.
  Exhibit E.  FBI Report, 24 December 2008.
  Exhibit F.  AFBCMR Letter, dated 24 December 2008, w/atch.
  Exhibit G.  Letter, Applicant, dated 29 January 2009, w/atchs.




                                   WAYNE R. GRACIE
                                   Panel Chair