RECORD OF PROCEEDINGS
AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS


IN THE MATTER OF:	DOCKET NUMBER:  BC-2014-03874

	 	COUNSEL:  NONE

		HEARING DESIRED:  NO 


APPLICANT REQUESTS THAT:

His bad conduct discharge (BCD) be upgraded to an honorable or a general (under honorable conditions) discharge.


APPLICANT CONTENDS THAT:

He served honorably for 20+ years and for 26 years subsequent to his discharge, he has lived an indisputable honorable life.  There has never been a challenge to his personal honor, except for the charges brought against him by the Air Force.  He was court-martialed, jailed, and received a BCD based on the fact that he could not account for a video club television set.  He was given only 45 minutes to consult with his defense attorney, who had orders in hand to depart for another legal matter on the following day.  Also, he did not receive a fair trial and the sentence levied against him was heavy-handed and grossly unfair, considering his excellent service record.  Even the military review board deemed his punitive discharge to be a “Heavy Price To Pay”.  

The recent news regarding the lenient sentence imposed upon General Sinclair warrants reconsideration of the severity of his sentence.  He is 65 years old and is not seeking any financial reimbursement.  He wants to be buried with honor, in a casket covered by an American Flag, and an Honor Guard to acknowledge his more than 20 years of honorable military service to his country.  

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


STATEMENT OF FACTS:

The applicant’s military personnel records indicate he enlisted in the Regular Air Force on 17 September 1968.  

On 29 September 1988, the applicant pled not guilty at a General court-martial of one charge and two specifications of larceny, in violation of Article 121, of the Uniform Code of Military Justice (UCMJ).  Specifically, the applicant pled not guilty of stealing two televisions, two videocassettes, 128 video tapes, and $2,005.  However, he was found guilty of stealing one television, two videocassettes, and $780.00.  His sentenced adjudged was confinement for six months, a fine of $1,500 and in the event that the fine is not paid, confinement for an additional period of six months, reduction in grade to Airman Basic (E-1), and a BCD.

On 13 December 1988, the convening authority approved the findings and sentence of confinement for six months and reduction to E-1.  The $1,500 fine was changed to forfeiture of $447 per month for three months.  The sentence as changed was affirmed, except for the execution of the BCD.  

On 13 December 1988, the applicant’s defense counsel submitted a preliminary Goode Response and clemency matters.  He argued inaccuracies in the Staff Judge Advocate’s recommendation to include the synopsis of the evidence, speedy trial issues, characterization of the applicant’s prior service, finding of guilty on larceny of a television, and the imposed BCD combined with up to a year in prison with no opportunity for parole.  

On 7 October 1988 and 5 January 1989, the applicant initiated an AF Form 1160, Military Retirement Actions, requesting a voluntary retirement.  

On 11 May 1989, the Secretary of the Air Force (SecAF) declined to accept the applicant’s application for retirement in lieu of a BCD.  

On 21 July 1989, the Air Force Court of Criminal Appeals affirmed the findings in part.  Specifically, the court modified specification 1 of the charge on the ground of factual insufficiency for part of the specification and approved the applicant’s sentence.  

The appellate court stated none of the circumstances, real or inferred, excuse the serious criminal misconduct in this case.  The same circumstances were before the military judge who imposed sentence.  It cannot be said the military judge reacted in an unduly harsh manner.  While the appellate court was saddened that a fine military career was terminated by a punitive discharge, the sentence as approved by the convening authority was appropriate for the offenses of which the applicant stood convicted.  

On 23 October 1989, the applicant initiated an AF Form 1160, requesting a voluntary retirement.  

On 13 December 1989, the applicant’s resubmitted voluntary retirement application was returned without further action by the SecAF 

On 14 May 1990, the applicant’s BCD was executed.  

On 7 November 2014, a request for post-service information 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 C).
The remaining relevant facts pertaining to this application are described in the letter prepared by the Air Force office of primary responsibility (OPR), which is attached at Exhibit D.  


AIR FORCE EVALUATION:

AFLOA/JAJM recommends denial.  There is no evidence or any error or injustice with the court-martial process.  The punishment adjudged by the military judge and approved by the convening authority was within the range of permissible punishment.  The applicant was afforded all his appellate rights.  In accordance with Title 10 United States Code, Section 1552(f), the Board has no authority to overturn a court-martial conviction, but only on the basis of clemency, correct the actions taken by the reviewing authorities, i.e., the sentence.  While the applicant received a severe punishment, when he otherwise served honorably for 20 years, the commander, convening authority and appellate courts were in position to modify the sentence, but did not.  

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


APPLICANT'S REVIEW OF AIR FORCE EVALUATION:

A copy of the Air Force evaluation was forwarded to the applicant on 17 February 2015 for review and comment within 30 days.  As of this date, no response has been received by this office (Exhibit E).


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 an 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 the applicant has not been the victim of an error of injustice.  While noting the Board’s authority, we have considered the applicant’s overall quality of service, the court-martial conviction which precipitated the discharge, and the seriousness of the offenses to which convicted.  However, in the absence of any evidence related to the applicant’s post-service activities that would enable us to determine if his accomplishments since his discharge are sufficient to overcome the misconduct for which he was discharged, we find no basis upon which to favorably consider this application.  


THE BOARD DETERMINES THAT:

The applicant be notified the evidence presented did not demonstrate the existence of material error or injustice; the application was denied without a personal appearance; and 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 Docket Number BC-2014-03874 in Executive Session on 28 April 2015, under the provisions of AFI 36-2603:

	Panel Chair
	Member
	Member

The following documentary evidence was considered:

	Exhibit A.  DD Form 149, dated 11 September 2014, w/atchs.
	Exhibit B.  Applicant's Master Personnel Records.
	Exhibit C.  Letter, SAF/MRBR, dated 7 November 2014, w/atch.
	Exhibit D.  Letter, AFLOA/JAJM, dated 8 January 2015.
Exhibit E.  Letter, SAF/MRBR, dated 17 February 2015.