RECORD OF PROCEEDINGS
             AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS

IN THE MATTER OF:      DOCKET NUMBER:  BC-2009-02627
            INDEX CODE:  110.02
            COUNSEL:  NONE
            HEARING DESIRED:  NO

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APPLICANT REQUESTS THAT:

His dishonorable discharge be upgraded to general.

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APPLICANT CONTENDS THAT:

He was a 19 year old  teenager  in  a  foreign  land  at  the  time  of  his
infractions and discharge.  He is now 46 years old and has  been  relatively
trouble free.  He has no felonies and is  pursuing  a  professional  degree.
He was not aware he could petition for an upgrade to his discharge.

The applicant did not submit supporting documentation.

The applicant's complete submission is at Exhibit A.

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STATEMENT OF FACTS:

The applicant’s complete  discharge  case  file  was  not  included  in  his
records.   The  following  information  was  extracted  from  the  available
documentation.

The applicant enlisted in the Regular Air  Force  on  16  Sep  81.   He  was
discharged with a dishonorable character of service on 15 Apr  86.   He  was
credited with 2 years, 2 months and 17 days of service to include  3  years,
5 months and 3 days of lost time due to confinement.

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  4
Jan 10, a copy of the FBI report was forwarded to the applicant  for  review
and comment within 30 days.  On 21 Jan 10, the mail  was  returned  unopened
and stamped “Not Deliverable As Addressed.”

The remaining relevant facts pertaining to this application, extracted  from
the applicant’s military records, are contained in the  letter  prepared  by
the appropriate office of the Air Force at Exhibit D.

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AIR FORCE EVALUATION:

AFLOA/JAJM recommends denial.  JAJM states, on 18  Jan  83,  the  applicant,
then an airman first class, was tried at a general court martial  at  Kadena
Air Base, Japan.  He was charged with one specification of  assault  with  a
knife, in violation  of  Article  128,  Uniform  Code  of  Military  Justice
(UCMJ), and three specifications of assault with intent to  commit  robbery,
in violation of Article 134, UCMJ.  He pled guilty to all  charges  and  was
sentenced by a military judge with a dishonorable discharge, confinement  at
hard labor for 10 years, forfeiture of all pay and allowances and  reduction
to the  grade  of  airman  basic.   The  convening  authority  approved  the
sentence as adjudged; however, due to  a  pretrial  agreement,  the  10-year
sentence was reduced to 5 years.  The sentence was executed on 1 Dec 83.

JAJM notes Title 10 United States Code  (USC)  Section  1552(f)  limits  the
Board’s   ability   to   correct   records   related   to    courts-martial.
Specifically, Section 1552(f)(1) permits  the  correction  of  a  record  to
reflect  actions  taken  by  a   reviewing   authority   under   the   UCMJ.
Additionally, Section 1552(f)(2) 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 Board is without  authority  to
reverse, set aside, or otherwise expunge  a  court-martial  conviction  that
occurred on or after 5 May 50.

JAJM states the approved sentence of a dishonorable  discharge,  confinement
to hard labor for five years, forfeiture of  all  pay  and  allowances,  and
reduction to airman basic was not only within the legal limits, but  it  was
well below the maximum permissible punishment of  a  dishonorable  discharge
(23 years confinement to  hard  labor,  total  forfeiture  of  all  pay  and
allowances and reduction to airman basic).  Additionally, clemency  in  this
case would be  unfair  to  those  individuals  who  honorably  served  their
country while in uniform.

JAJM notes the  applicant  provides  no  legitimate  justification  for  his
request, and clemency is not warranted in this case.  He has  not  submitted
any supporting documentation attesting to any improvement  in  his  behavior
over the past twenty-four years.

The complete JAJM 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  9  Oct
09 for review and comment within 30 days.  As of this date, this office  has
received no response (Exhibit E).

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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.   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 20 Apr 10, under the provisions of AFI 36-2603:

      Panel Chair
      Member
      Member

The following documentary evidence was considered in AFBCMR BC-2009-02627:

    Exhibit A.  DD Form 149, dated 13 Jul 09.
    Exhibit B.  Applicant's Master Personnel Records.
    Exhibit C.  FBI Report.
    Exhibit D.  Letter, AFLOA/JAJM, dated 15 Sep 09.
    Exhibit E.  Letter, SAF/MRBR, dated 9 Oct 09.
    Exhibit F.  Letter, AFBCMR, dated 4 Jan 10.




                                   Panel Chair