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AF | BCMR | CY2013 | BC 2013 04408
Original file (BC 2013 04408.txt) Auto-classification: Denied
RECORD OF PROCEEDINGS
AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS

IN THE MATTER OF:	DOCKET NUMBER:  BC-2013-04408
		COUNSEL:  NONE
	XXXXXXXXX	HEARING DESIRED:  NO


APPLICANT REQUESTS THAT:

His Bad Conduct Discharge (BCD) be upgraded to honorable.


APPLICANT CONTENDS THAT:

The sentence he received was disproportionate to the offenses he 
was convicted of.  In the civilian court system, his offenses 
would have resulted in a simple misdemeanor and eventually 
expunged from his record.  He is currently studying law and his 
BCD could prevent his ability to sit for the Bar exam.  He hopes 
the mistake he made as an immature airman will not affect him 
for the rest of his life.

The applicant believes the Board should find it in the interest 
of justice to consider his untimely application because his BCD 
was extremely inappropriate.

In support of his request, the applicant provides a personal 
statement, copies of memorandums, and USAF Court of Military 
Review Summary of Proceedings.

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


STATEMENT OF FACTS:

The applicant served in the Air Force from 9 Nov 1978 through 
2 December 1982.  His service was terminated by a BCD.  He 
served a total of 3 years, 9 months and 8 days of active 
service.

Pursuant to the Board's request, the Air Force Office of Special 
Investigation determined a criminal record does exist.


AIR FORCE EVALUATION:

AFLOA/JAJM recommends denial.  Based on the military justice 
records in this case and consistent with the decision of the Air 
Force Court of Military Review, JAJM recommends the Board not 
grant relief based on any error or injustice with the court-
martial process.  The applicant was tried by special on 15-
16 October 1981.  A military judge found the applicant guilty of 
stealing a wallet, a ring worth less than $50.00, $40.00 in cash 
on one occasion, $20.00 in cash on another occasion, and 
$30.00 in cash on another occasion, in violation of Article 121, 
Uniform Code of Military Justice (UCMJ).  He was found to have 
stolen all of this property from fellow service members.  The 
military judge sentenced the applicant to be discharged with a 
BCD, to be confined at hard labor for five months, to forfeit 
$300.00 pay per month for five months, and to be reduced from 
the grade of senior airman (E-4) to the grade of airman basic 
(E-1).  Due to insufficient evidence, on 10 Feb 1982, the 
convening authority disapproved the court’s findings with 
respect to the wallet specification and two cash specifications, 
leaving the court’s guilty findings with respect to the ring and 
$30.00 in cash.  Despite the changed findings, he approved the 
sentence as adjudged.  On appeal, the applicant argued that the 
sentence was no longer appropriate because his original sentence 
was disproportionate for the two offenses of which he was 
convicted. However, on 16 June 1982, the Air Force Court of 
Military Review rejected the applicant’s argument and determined 
that the findings and sentence were correct in law and fact and 
found that there was no error materially prejudicial to the 
applicant’s substantial rights.  On 27 September 1982, the Court 
of Military Appeals denied the applicant’s petition for grant of 
review.  On 18 October 1982, the convening authority ordered the 
applicant’s BCD to be executed. 

The complete JAJM evaluation is at Exhibit C.


APPLICANT'S REVIEW OF THE AIR FORCE EVALUATION:

On 13 December 2013, a copy of the Air Force evaluation was 
forwarded to the applicant for review and comment within 
30 days.  As of this date, no response has been received by 
this office (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 error or injustice.  We note this 
Board is without authority to reverse, set aside, or otherwise 
expunge a court-martial conviction.  Rather, in accordance with 
Title 10, United States Code, § 1552(f), our actions are limited 
to corrections to the record to reflect actions taken by the 
reviewing officials and action on the sentence of the court-
martial for the purpose of clemency.  We find no evidence which 
indicates the applicant’s service characterization, which had 
its basis in his court-martial conviction and was a part of the 
sentence of the military court, was improper or that it exceeded 
the limitations set forth in the UCMJ.  We considered upgrading 
the discharge on the basis of clemency; however, after 
considering the applicant's overall quality of service, the 
court-martial conviction which precipitated the discharge, the 
seriousness of the offenses of which convicted, and noting the 
lack of documentation pertaining to his post-service activities, 
we cannot conclude that clemency is warranted.  In view of the 
above, we cannot recommend approval based on the current 
evidence of record.


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 AFBCMR BC-2013-
04408 in Executive Session on 7 August 2014, under the 
provisions of AFI 36-2603:

      , Panel Chair
      , Member
      , Member

The following documentary evidence was considered: 

    Exhibit A.  DD Form 149, dated 29 August 2013, w/atch.
    Exhibit B.  Applicant's Master Personnel Records.
    Exhibit C.  Letter, AFLOA/JAJM, dated 5 December 2013.
    Exhibit D.  Letter, SAF/MRBR, dated 13 December 2013.





FOR OFFICIAL USE ONLY – PRIVACY ACT OF 1974
FOR OFFICIAL USE ONLY – PRIVACY ACT OF 1974
FOR OFFICIAL USE ONLY – PRIVACY ACT OF 1974
2
FOR OFFICIAL USE ONLY – PRIVACY ACT OF 1974
3
FOR OFFICIAL USE ONLY – PRIVACY ACT OF 1974
FOR OFFICIAL USE ONLY – PRIVACY ACT OF 1974

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