RECORD OF PROCEEDINGS

         AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS


IN THE MATTER OF:      DOCKET NUMBER:  BC-2009-03787

            COUNSEL:  NONE

            HEARING DESIRED:  YES

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APPLICANT REQUESTS THAT:

His discharge characterization be upgraded to allow him to  receive  medical
treatment at the Department of Veterans Affairs (DVA).

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APPLICANT CONTENDS THAT:

His discharge characterization needs  to  be  upgraded  so  he  can  receive
medical care from the DVA.

In support of the appeal, the applicant provides DD  Form  293,  Application
for the Review of Discharge from the Armed Forces of the United States.

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

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STATEMENT OF FACTS:

The applicant enlisted in the Regular Air Force as an airman basic on 4  Feb
69, for a term of four years.  On 25 Aug 71,  the  applicant  was  tried  by
general court-martial for one specification of  stealing  12  refrigerators,
of a value of about $594.00, the property of the Vietnam Regional  Exchange,
in violation of Article 121, Uniform Code of Military  Justice  (UCMJ),  and
one specification of attempting to steal 32 television sets, of a  value  of
about $3072.00, the property of the Vietnam Regional Exchange, in  violation
of Article 80, UCMJ.

The applicant  pled  guilty  and  was  found  guilty  of  both  charges  and
specifications by a military judge.  He  was  sentenced  to  a  bad  conduct
discharge (BCD), confinement for 1  year,  forfeiture  of  $100.00  pay  per
month for 12 months, and reduction to the grade of airman basic (E-1).

On 8 Sep 71, the Air Force Court of Military Review  affirmed  the  findings
and approved the sentence as adjudged.  The applicant petitioned the  United
States Court of Military Appeals for review of the conviction,  but  it  was
denied  on  17 May 72.   This  made  the  findings  and  sentence   in   the
applicant’s case final and conclusive under the UCMJ.

On 30 May 72, he was discharged in the grade  of  airman  basic  (E-1)  with
service characterized as under  other  than  honorable  conditions  (UOTHC),
under the provisions of 39-12, General Court-Martial Order Number 14,  dated
15 Oct 71, and was issued a DD Form  259AF  –  Bad  Conduct  Discharge.   He
served a total of two years, seven months, and four days of active service.

Pursuant to the Board's request, the Federal Bureau of Investigation  (FBI),
Clarksburg, WV, provided a copy of an  Investigation  Report,  which  is  at
Exhibit C.

A  copy  of  the  FBI  report  along  with  a   request   for   post-service
documentation was mailed to the applicant on 22 Feb 10, for response  within
30 days, and to date no reply has been received (Exhibit D).

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AIR FORCE EVALUATION:

AFLOA/JAJM recommends denial.  JAJM  indicates  the  applicant  provides  no
basis to excuse his untimely filing and does not point to any aspect of  his
court-martial or other military justice proceedings that were  erroneous  or
unjust.  He also provides no basis for the Board  to  overlook  his  general
court-martial conviction for stealing  and  attempting  to  steal  from  the
Vietnam Regional Exchange, or to substitute its judgment for  that  rendered
by the court and the convening authority over 37 years  ago,  when  evidence
of the facts and circumstances was far more recent.  Further, a  BCD  was  a
proper sentence and properly characterizes the applicant’s service.  He  has
identified  no  error  or  injustice  related  to  his  prosecution  or  the
sentence.

JAJM states that it appears the applicant  has  already  benefited  from  an
administrative UOTHC characterization of service despite  a  general  court-
martial order to execute his sentence to a punitive bad  conduct  discharge.
The only reason offered by the applicant to re-characterize his  service  is
to allow him to qualify for veteran’s healthcare benefits.   Providing  such
clemency in this case would be unfair to  those  individuals  who  honorably
served their country while in uniform and thus  are  entitled  to  veteran’s
healthcare benefits.  Congress’ intent in setting up the Veterans’  Benefits
Program  was  to  express  thanks   for   veterans’   personal   sacrifices,
separations from their family, facing hostile  enemy  action  and  suffering
financial hardships.  It would be unfair to all those who  served  honorably
to extend the same panoply of benefits  to  someone  who  committed  serious
crimes while on active duty, especially given the length of the  applicant’s
service.

A complete copy of the AFLOA/JAJM evaluation is at Exhibit E.

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APPLICANT'S REVIEW OF AIR FORCE EVALUATION:

A copy of the Air Force evaluation was forwarded to applicant on  8  Dec  10
for review and comment, within 30 days.  As of this date,  no  response  has
been received by this office (Exhibit F).

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FINDINGS AND CONCLUSIONS OF THE BOARD:

1.  We have carefully reviewed the applicant’s submission and  the  evidence
of record and do not fine a sufficient basis to excuse the  untimely  filing
of this application.  The applicant did not file within  three  years  after
the alleged error or injustice was  discovered  as  required  by  Title  10,
United States Code, Section 1552 and  Air  Force  Instruction  36-2603,  Air
Force Board for Correction of  Military  Records.   The  applicant  has  not
shown a plausible reason for the delay in filing, and we are  not  persuaded
the record raises issues of error or injustice which require  resolution  on
the merits.  Thus, we cannot  conclude  it  would  be  in  the  interest  of
justice to excuse the applicant’s failure to file in a timely manner.

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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DECISION OF THE BOARD:

The application was not timely filed and it would not be in the interest  of
justice to waive the  untimeliness.   It  is  the  decision  of  the  Board,
therefore, to reject the application as untimely.

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The following members of the Board considered  Docket  Number  BC-2009-03787
in Executive Session on 20 Jan 11, under the provisions of AFI 36-2603:

      Mr. -----------, Panel Chair
      Ms. -----------, Member
      Mr. -----------, Member

The following documentary evidence was considered:

      Exhibit A. DD Form 149, dated 11 Nov 09, w/atch.
      Exhibit B. Applicant's Master Personnel Records.
      Exhibit C. FBI Report.
      Exhibit D. Letter, AFBCMR, dated 22 Feb 10.
      Exhibit E. Letter, AFLOA/JAJM, dated 1 Jul 10.
      Exhibit F. Letter, AFBCMR, dated 8 Dec 10.




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      Panel Chair