RECORD OF PROCEEDINGS

         AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS


IN THE MATTER OF:      DOCKET NUMBER:  BC-2008-04288
            INDEX CODE:  110.02
            COUNSEL:  NONE

            HEARING DESIRED:  YES

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APPLICANT REQUESTS THAT:

His bad conduct discharge (BCD) be upgraded.

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APPLICANT CONTENDS THAT:

He has been an upstanding citizen since his  discharge  from  the  Air
Force, and he requests clemency based on his excellent  records  since
his discharge and the severity of his conviction.

In  support  of  the  request,  the  applicant  provides  a  copy   of
documentation from the  Saint  Vincent  Comprehensive  Cancer  Center,
excerpts from his medical  records,  and  documents  relating  to  his
discharge from the Air Force.

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

_________________________________________________________________

STATEMENT OF FACTS:

The applicant enlisted in the Regular Air Force as an airman basic  on
4 Oct 84, for a term of four years.  On 2 Jun 88 through 3 Jun 88,  he
was tried at a  general  court-martial  for  three  specifications  of
larceny, in violation of Article 121, Uniform Code of Military Justice
(UCMJ), two specifications of burglary, in violation  of  Article  12,
UCMJ, and two specifications of  receiving  stolen  property  and  one
specification of drunkenness, in violation of Article 134, UCMJ.

The applicant pled guilty to the charges  and  specifications,  and  a
military judge found him guilty of  the  larceny  and  of  the  lesser
included offenses of housebreaking and  attempted  burglary,  and  not
guilty of the remaining charges and specifications.

He was sentenced to a BCD, confinement for 30  months,  forfeiture  of
all pay and allowances and reduction to airman basic.

On 18 Aug  88,  the  convening  authority  approved  the  sentence  as
adjudged.

On 22 Dec 88, the Air Force Court of Military Review  disapproved  the
finding of guilty with regard to one of the incidents of larceny.  The
court affirmed the remaining charges and specifications and approved a
sentence of a BCD, 24 months confinement, forfeiture of  all  pay  and
allowances, and reduction to airman basic.

On 25 Aug 89, the United States Court of Military Appeals  denied  the
applicant’s petition for review; therefore, the findings and  sentence
in his case became final and conclusive under the UCMJ.  On 9 Nov  89,
the applicant’s discharge was executed.

He served a total of 3 years, 7 months, and 29 days of active service.

On 10 Aug 09, the applicant was asked to provide  evidence  pertaining
to his post-service activities.  As of this date, no response has been
received by this office (Exhibit E).

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AIR FORCE EVALUATION:

AFLOA/JAJM recommends  denial.   JAJM  states,  in  part,  that  while
clemency may be  granted  under  Title  10  U.S.C.  1552(f)  (2),  the
applicant provides no justification for his request, and  clemency  is
not warranted.  He has not provided any documentation to  support  his
assertion that he has been an upstanding member of society  since  his
discharge.

An examination of the Record of Trial indicates that he  was  afforded
all  of  the  procedural  rights  offered  by  the  court-martial  and
appellate process.

The applicant’s history of cancer at a young age is tragic, but it was
also a fact in evidence for argument by his defense counsel at  trial.
Considering that factor as well as other  mitigating  and  aggravating
factors, the military judge concluded the appropriate  punishment  for
his offenses included a BCD.

The  Rule  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
merely a service characterization, but as defined under the  Rules  it
is a punishment for the crimes the applicant committed while a  member
of the armed forces.

While clemency may be  granted  under  Title  10  United  States  Code
1555(f)(2),  the  applicant  has   not   presented   any   information
demonstrating that such action by the Board would be appropriate.

Clemency in this  case  would  be  unfair  to  those  individuals  who
honorably served their country while in uniform.  Congress’ intent  in
setting up the Veterans’ Benefit Program was  to  express  thanks  for
veterans’ personal sacrifices, separations from their  family,  facing
hostile enemy action and suffering financial hardships.  All rights of
a veteran under the laws administered by  the  Secretary  of  Veterans
Affairs are barred where the veteran was discharged  or  dismissed  by
reason of the sentence of a general court-martial.  This  makes  sense
if the benefit program is to have any real  value.   It  would  be  an
insult to all those who served honorably to extend the  same  benefits
to someone who committed a crime such  as  the  applicant’s  while  on
active duty.

The complete AFLOA/JAJM 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 6
Feb 09, for review and comment within 30 days.  As of  this  date,  no
response has been received by this office (Exhibit D).

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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  took  notice  of   the
applicant's complete submission in judging the  merits  of  the  case;
however, we agree with the opinion and recommendation of the Air Force
office of primary responsibility (OPR) and adopt its rationale as  the
basis for our conclusion that the applicant has not been the victim of
an error or injustice.   We  find  no  evidence  which  indicates  the
applicant’s BCD, which had its basis  in  his  conviction  by  general
court-martial and was a part of the sentence of  the  military  court,
was improper or that it exceeded the  limitations  set  forth  in  the
Uniform Code of Military Justice (UCMJ).  While we  are  precluded  by
law from reversing a court-martial conviction, we  are  authorized  to
correct the records to reflect actions taken  by  reviewing  officials
and to take action on the  sentence  of  a  military  court  based  on
clemency.  However, because of the lack  of  documentation  concerning
his activities since leaving the  service,  we  are  not  inclined  to
recommend upgrading his discharge based on clemency at this time.   In
view of the foregoing, and in the absence of  sufficient  evidence  to
the contrary, we find no compelling basis to  recommend  granting  the
relief sought in 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(s)   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.

_________________________________________________________________

The following members of the Board considered Docket  Number  BC-2008-
04288 in Executive Session on 20 Oct 09, under the provisions  of  AFI
36-2603:





The following documentary evidence was considered:

      Exhibit A. DD Form 149, dated 18 Oct 08, w/atchs.
      Exhibit B. Applicant's Master Personnel Records.
      Exhibit C. Letter, AFLOA/JAJM, dated 28 Jan 09.
      Exhibit D. Letter, SAF/MRBR, dated 6 Feb 09.
      Exhibit E. Letter, AFBCMR, dated 10 Aug 09, w/atch.




      RITA S. LOONEY
      Panel Chair