RECORD OF PROCEEDINGS
             AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS

IN THE MATTER OF:      DOCKET NUMBER:  BC-2009-02515
            INDEX CODE:  110.00
            COUNSEL:  NONE
            HEARING DESIRED:  NOT INDICATED

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APPLICANT REQUESTS THAT:

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

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APPLICANT CONTENDS THAT:

He was a young 20 year old during the time  in  question.   He  was  single,
immature and fell into a “party lifestyle.”  Before he joined the  military,
he never drank alcohol; however, drunkenness was  the  main  factor  in  his
case – a drunken bar brawl.  He deeply regrets the decisions he made  during
that time in his life.

He is now 31 years old, married and the father of three  beautiful  children
– with another on the way.  He is employed in the oil refinery industry  and
attends church.   Although he made some bad choices in  his  younger  years,
he is not a bad person and  asks  that  his  earlier  choices  not  be  held
against him for the rest of his life.  He would like  to  clear  his  record
and move on with his life.  His entire family served this country  honorably
from World War II to present and he is proud to be an American citizen.

In support of the application, the applicant submits a  personal  statement,
copies of character reference letters and certificates of completion  and/or
appreciation.

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

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STATEMENT OF FACTS:

On 22 Apr 98, the applicant enlisted in the Regular Air Force.

A special court-martial order, dated 20 May 99, indicates the applicant  was
charged and pled guilty to the following specifications:

      1)  On or about 17 Oct 98, he assaulted  an  airman  by  displaying  a
knife to him.

      2)  On or about 21 Nov 98, he assaulted an airman by pointing a  knife
at his abdomen.

      3)  On diverse occasions, between on or about 17  Oct  98  and  on  or
about 21 Nov 98, he unlawfully carried on or about his  person  a  concealed
weapon, to wit:  a knife with a blade longer than three (3) inches.

He was charged with two specifications of assault, in violation  of  Article
128,  Uniform  Code  of  Military  Justice  (UCMJ),  one  specification   of
unlawfully carrying a concealed weapon, in violation of Article  134,  UCMJ,
and one specification of drunk and disorderly in violation of  Article  134,
UCMJ.

He was sentenced to a bad conduct discharge,  confinement  for  two  months,
and a reduction in grade to airman basic.   On  20  May  99,  the  convening
authority approved the findings and sentence as  adjudged  (waiving  $300.00
pay per month).  On 13 Mar 01, the  Air  Force  Court  of  Criminal  Appeals
affirmed the findings and sentence.  On 15 Aug 01, the United  States  Court
of Appeals for the Armed Forces denied the applicant’s petition for  review.


He was discharge on 10 Dec 01 and served 3 years, 6 months and  29  days  on
active duty.

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AIR FORCE EVALUATION:

AFLOA/JAJM recommends denial.  JAJM states the applicant has  identified  no
error or  injustice  related  to  his  prosecution  or  the  sentence.   The
applicant entered into a pretrial  agreement  whereby  he  agreed  to  plead
guilty  to  the  charges  and  specifications  in  exchange  for  a   lesser
punishment.  The military 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.

On the court’s acceptance of  the  guilty  plea,  it  received  evidence  in
aggravation, as well as in extenuation and mitigation, prior to crafting  an
appropriate sentence for the crimes committed.  The  approved  sentence  was
below the maximum possible sentence of a BCD, confinement  for  six  months,
two-thirds forfeiture of pay and allowances and reduction to the grade of E-
1.

While clemency may be granted, the applicant  does  not  provide  sufficient
justification for his request.   The  character  letters  and  his  personal
memorandum do not outweigh the seriousness of the offenses of which  he  was
convicted.  Furthermore, under  the  Rules  for  Courts-Martial,  a  BCD  is
intended to be more  than  merely  a  service  characterization,  but  is  a
punishment for the crimes committed while a member of the armed forces.

JAJM states it is commendable that the applicant is  working  very  hard  to
become the best father and husband possible and is a  productive  member  of
his church community; however, this, along with the fact that 10 years  have
passed since his court-martial does not erase his past criminal  conduct  or
make his BCD  any  less  appropriate  for  the  offense  he  committed.   To
overturn his punishment now  would  require  the  Board  to  substitute  its
judgment for that rendered by the  court  and  the  convening  authority  10
years ago when the facts and circumstances were fresh.  A BCD  continues  to
be a part of a proper sentence and properly characterizes his service.

Additionally, clemency would be unfair to those  individuals  who  honorably
served their country while in uniform.  Congress’ intent in setting  up  the
Veterans’ Benefits Program was to  express  thanks  for  veterans’  personal
sacrifices,  separations  from  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.  JAJM opines it would be offensive 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 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 28  Aug
09, for review and comment within 30 days.  As of  this  date,  this  office
has received no response (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 and adopt its rationale as the basis for the conclusion  that
the applicant has not been the victim of an error or injustice.  In view  of
the minimal time  passed  since  his  discharge,  we  are  not  inclined  to
exercise clemency in this case.   Therefore, in the absence of  evidence  to
the contrary, we find no 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.

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The following members of the Board considered this application in  Executive
Session on 8 Apr 10, under the provisions of AFI 36-2603:

      Panel Chair
      Member
      Member

The following documentary evidence was considered in BC-2009-02515:

    Exhibit A.  DD Form 149, dated 1 Jul 09, w/atchs.
    Exhibit B.  Applicant's Master Personnel Records.
    Exhibit C.  Letter, HQ AFLOA/JAJM, dated 11 Aug 09.
    Exhibit D.  Letter, SAF/MRBR, dated 28 Aug 09.





                                   Panel Chair