FIFTH ADDENDUM TO RECORD OF PROCEEDINGS

IN THE MATTER OF:	DOCKET NUMBER: BC-1991-01020-9

xxxxxxxxxxxx	COUNSEL: XXXXXXXXXXX

	HEARING REQUESTED: YES

APPLICANT’S REQUEST

The Board reconsider his request for the following:

a.	Upgrade his bad conduct discharge (BCD) to honorable or general (under honorable conditions).

b.	Change his narrative reason for separation to “Secretarial Authority.”

c.	Delete Block 38 comment on his DD Form 214, Report of Separation from the Armed Forces of the United States, “228 days lost under MCM 1951 Sec 6a App” and add this time to his active service in Blocks 22 and 24, or in the alternative, change Block 38 comments to “60 days” and add 168 days to his active service time.

d.	Remove all references to his BCD and any other references to a punitive discharge.

e.	Remove all references to confinement, or in the alternative, change the length of confinement, no greater than two months.

f.	Remove all references to forfeiture of pay, or in the alternative, change the length of forfeiture of pay, no greater than two months.

g.	All back pay and allowances to include interest be paid to the applicant for the improperly forfeited pay during confinement.

h.	Change his race to African American on his DD Form 214.

RESUME OF THE CASE

The applicant is a former Air Force airman basic (E-1) who was court-martialed and given a BCD on 14 Feb 53.

On 6 Aug 91, the Board considered and denied his request to upgrade his BCD to honorable; finding the applicant had not provided a sufficient basis to excuse the untimely filing of his application nor did the applicant show a plausible reason for the delay.  However, the Board did consider correcting his records based on merit but found no issues of an error or injustice.

On 23 Oct 03, the Board reconsidered and denied his request for a discharge upgrade; finding no basis to act favorably on his request.   The Board noted he had become a law-abiding member of his community since 1984; however, it has been 51 years since his discharge and that for more than 30 years after his separation, the applicant accumulated an arrest record of crimes and probation violations through 1984.  The Board noted that traditionally it had exercised its authority to recommend relief in cases such as the applicant’s based on clemency upon the submission of substantial evidence of a successful post-service rehabilitation over an extended period of time. While the Board believed the applicant was sincere in his professions of contrition for the misconduct that led to his separation, the number and severity of crimes in his arrest record for more than one half of his post-service period did not provide evidence of a sufficient length, quality and quantity of demonstrated good citizenship to warrant the approval of the requested relief based on clemency.  The Board advised should he continue in a responsible manner and provide evidence of a lengthy and established pattern of good citizenship, he may, of course, submit a request for clemency at a later time.

Between 2005 and 2011, the applicant submitted several applications for a discharge upgrade which were closed without Board action due to no new evidence.

On 12 Feb 14, the Board reconsidered and denied his request for a discharge upgrade; finding insufficient evidence to warrant an upgrade of the applicant’s discharge based on clemency.

On 16 Apr 15, the Board again reconsidered and denied his request to for a discharge upgrade; finding the additional documentation provided by the applicant (request for benefits by the Department of Veterans Affairs (DVA)), while new, did not convince the Board the documentation was relevant to the applicant’s request for an upgrade to his discharge.  The Board noted the applicant was previously advised, reconsideration is provided only where newly discovered relevant evidence if presented which was not available when the application was submitted.  Further, the reiteration of facts the Board previously addressed, uncorroborated personal observations, or additional arguments on the evidence of record are not adequate grounds for reopening a case.  

On 7 May 15, the applicant submitted an application for a discharge upgrade and on 5 Sep 15, the AFBCMR staff closed the applicant’s case due to no new evidence.

On 9 Aug 18, the Board again reconsidered and denied his request for a discharge upgrade; finding no basis to recommend granting the requested relief.  The Board noted it appeared the discharge was consistent with the substantive requirements of the discharge regulation and was within the commander’s discretion.  Nor was the discharge unduly harsh or disproportionate to the offenses committed.  In the interest of justice, the Board considered upgrading the discharge based on clemency; however, given the evidence presented, and in particular the absence of post-service information from the applicant, the Board found no basis to do so. 
For an accounting of the applicant’s original request and the rationale of the earlier decision, see the AFBCMR Letters and Record of Proceedings at Exhibits F, H, L, N, and S. 

On 23 Aug 19, the applicant’s counsel requested reconsideration of his request for a discharge upgrade along with several other corrections regarding his court-martial sentencing.  His counsel contends the applicant was court-martialed in 1952 at the age of 18 for not reporting to work on two separate occasions to which he received the jurisdictional maximum punishment of a special court-martial with six months of confinement at hard labor, forfeiture of pay, and a BCD discharge.  The applicant’s court-martial was unconstitutional and fundamentally improper; multiple laws and procedures the appellate court applied in 1952 were completely invalidated in subsequent years.  His BCD was not an authorized punishment for the offenses committed; the Article 86 charge of failure to go to appointed place of duty was the underlying misconduct.  Although the Article 91 charge of willfully disobeying a lawful order of a superior Non-Commissioned Officer (NCO) did permit a BCD as punishment, a BCD is not authorized if the underlying misconduct was a violation of a different Uniform Code of Military Justice (UCMJ) article.  The convening authority suspended the execution of the BCD at initial action, which invalidated the discharge at the conclusion of the probationary period in 1953.  He was a victim of white supremacy; he was prejudiced at the Special Court-Martial due to a lack of representation by an attorney.  He received improper post-trial review; the Staff Judge Advocate improperly relied on the “fruits” of the improper interview.  This interview was improper as there was no indication he waived his rights pursuant to Article 31 of the UCMJ.  The Air Force lost his record of trial and the record of the appellate opinion; this is in violation of the applicant’s rights and is an injustice.  It precludes the applicant from identifying additional potential errors and deprives the Board from fully understanding his case.

In support of his reconsideration request, the applicant submitted the following new evidence: (1) Manual for Court-Martial dated 31 May 51 and (2) numerous case files.

The applicant’s complete submission is at Exhibit T.

APPLICABLE AUTHORITY/GUIDANCE

On 25 Jul 18, the Under Secretary of Defense for Personnel and Readiness (USD P&R) issued supplemental guidance (Wilke Memo) to military corrections boards in determining whether relief is warranted based on equity, injustice, or clemency.  These standards authorize the board to grant relief in order to ensure fundamental fairness.  Clemency refers to relief specifically granted from a criminal sentence and is a part of the broad authority Boards have to ensure fundamental fairness.  This guidance applies to more than clemency from sentencing in a court-martial; it also applies to any other corrections, including changes in a discharge, which may be warranted on equity or relief from injustice grounds.  This guidance does not mandate relief, but rather provides standards and principles to guide Boards in application of their equitable relief authority.  Each case will be assessed on its own merits.  The relative weight of each principle and whether the principle supports relief in a particular case, are within the sound discretion of each Board.  In determining whether to grant relief on the basis of equity, an injustice, or clemency grounds, the Board should refer to the supplemental guidance, paragraphs 6 and 7. 

The entire guidance can be found at Exhibit U.

APPLICANT’S REVIEW OF APPLICABLE AUTHORITY/GUIDANCE

On 1 Sep 20, along with the letter from SAF/MRBC to the applicant’s counsel regarding the requirement per AFI 36-2603, Air Force Board For Correction of Military Records, paragraph 3.8.1, that applications may not exceed 25 double-spaced pages, the Board sent a copy of the clemency guidance along with a request for a current Federal Bureau of Investigation (FBI) Identity History Summary Check (IdHSC) for comment (Exhibit U), and the applicant’s counsel replied on 27 Nov 20.  In his response, the applicant’s counsel provided a written brief that meets AFI 36-2603 standards and a FBI background check.  He also requests the application be reviewed by a judge advocate or civilian attorney trained in all aspects of the military justice process, to include post-trial processing, and who is familiar with the history of the UCMJ and further requests that this attorney produce a written legal review and advisory opinion.

The applicant’s counsel again replied on 6 Aug 21 asking the AFBCMR to change their policies stating that they are preventing discharge upgrade applications from receiving a full and fair review.  Contrary to the spirit and purpose of 10 U.S.C. § 1552, the AFBCMR requires that applicants (1) submit an FBI IdHSC for clemency-based applications, and (2) limit all discharge upgrade briefs to 25 double-spaced pages.  Eliminating both requirements will enable applicants who would otherwise be unfairly prejudiced by these policies to have a full and fair review.

According to the FBI IdHSC, the applicant was arrested on 30 Jan 58 for worthless check, on 15 Oct 59 for mail fraud, on 1 Jul 60 for disorderly conduct and resisting arrest, on 14 Oct 60 for worthless check, assault and battery, and assault with a deadly weapon, on 9 Mar 63 for assault and battery, on 28 Feb 72 for assault, resisting arrest, and failing to obey traffic control device, on 25 Oct 72 for assault, on 13 Aug 81 for burglary and assault with weapon/instrument, on 3 Feb 84 for driving under the influence, on 27 Oct 04 for voter fraud, and on 18 Jul 12 for failure to appear on misdemeanor.

The applicant’s complete response is at Exhibit V.

AIR FORCE EVALUATION

AFPC/DP2SSR recommends denying the applicant’s request to have his race changed from “Negroid” to “African American” on the DD Form 214.  The applicant was discharged from the military in 1953.  The technicians preparing the form used the racial designation that was authorized at the time of discharge, therefore, the DD Form 214 was prepared correctly.  Based on review of the applicant’s request and the master of personnel record, there is no error or injustice with the preparation of the DD Form 214 at the time of discharge.

The complete advisory opinion is at Exhibit W.

DAF/JA recommends denying the applicant’s request for a discharge upgrade to honorable, plus back-pay with interest for the period covering the date of his confinement to the date of his discharge.  In the present application, the applicant alleges five errors; (1) a BCD was not an authorized punishment at Special Court-Martial (SPCM); (2) the Convening Authority actually suspended the execution of the BCD, then it was automatically remitted in 1953; (3) the applicant was prejudiced at SPCM due to a lack of representation by an attorney; (4) the applicant received improper post-trial review; and (5) the Air Force lost the applicant’s record of trial and record of appellate opinion.

The applicant’s counsel presents the following arguments and the responses from the advisory opinion (AO) are as follows:

a.	The BCD was not an authorized punishment.  The applicant alleges a BCD was not authorized at SPCM for his charges.  The contention is two-fold: The Article 86 charge (Failure to Go to Appointed Place of Duty) did not authorize a BCD as punishment.  Although the Article 91 charge (Willfully Disobey Lawful Order of Superior Non-commissioned Officer) did permit a BCD as punishment, a BCD was not authorized if the underlying misconduct was a violation of a different UCMJ article that did not authorize a BCD.  Hence, since the underlying misconduct was covered under Article 86, a BCD was not authorized. AO Response -We disagree. The underlying misconduct for the Article 86 violation was the applicant’s failure to be at his appointed place of duty at the prescribed time, which was 0800.  By contrast, the underlying misconduct for the Article 91 violation was for disobeying the first sergeant at 0830 and again at 1300.  Furthermore, the case received appellate court review by the Air Force Board of Review on 8 Dec 52.  The principle of presumption of regularity strongly supports the conclusion that the BCD’s validity was considered, and that it was especially scrutinized because it is this very adjudication of a punitive discharge that triggers automatic appellate court review. 

b.	The BCD was automatically remitted.  The applicant alleges the BCD was ordered to be suspended then remitted.  AO Response - This is a misstatement of the order. The plain language of the order by the Eighteenth Air Force commander is clear. The BCD was suspended until the applicant’s release from confinement or until the completion of appellate review.  It is common practice to not execute the discharge portion of a punishment adjudged by court-martial until the accused is released from confinement or appellate review is complete.  The Eighteenth Air Force commander’s order makes no mention of automatic remission of the BCD as the applicant alleges.  Furthermore, this case received appellate court review by the Air Force Board of Review on 8 Dec 52. The principle of presumption of regularity strongly supports the conclusion that the BCD’s validity was considered, and that it was especially scrutinized because it is this very adjudication of a punitive discharge that triggers automatic appellate court review. 

c.	The applicant lacked representation by an attorney at SPCM.  AO Response - This allegation lacks merit.  Pursuant to the law and policy in place at the time of the applicant’s SPCM, representation by an attorney at SPCM was not required.  For the AFBCMR to overturn a court-adjudged punishment because of a subsequent change in procedural rules would create an untenable and unjust expectation that is contrary to the ends of justice. Furthermore, appellate court review was completed by the Air Force Board of Review on 8 Dec 52.  We can conclude by the principle of presumption of regularity that all relevant legal issues – including the issue of adequate representation – were considered. 

d.	The applicant received improper post-trial review.  The applicant speculates that the Wing Staff Judge Advocate (SJA) violated the applicant’s 31b rights during a post-trial interview, and that the SJA review by the Eighteenth Air Force SJA improperly relied on the fruits of the improper Wing SJA interview.  AO Response - This allegation lacks merit.  The basis for this speculation is that “there is no mention that the applicant waived his rights pursuant to Article 31, UCMJ.”  This is an advisement of rights and is similar to the commonly known Miranda Rights.  There is no evidence that a rights advisement was not given.  There is also no evidence that the interview even required a rights advisement.  Even if a rights advisement was required and the requirement was violated, the legal consequence is to exclude the applicant’s resulting statement at trial so that the court-martial could not consider the statement when deciding guilt or innocence.  However, the trial was already complete, so there was no statement to exclude.  Furthermore, the analysis in the SJA review that the applicant refers to is a result of statements the applicant made during trial, not during any post-trial interview.  The SJA review is clear on its face that the focus of review was the applicant’s chronic misconduct including insubordination and absent without leave (AWOL), not any statement that he allegedly made to the Wing SJA.  Even if there was a violation – which there is no evidence of – there was no resulting harm. 
 
e.	The lost Record of Trial (ROT) and Appellate Record violated the applicant’s rights.  AO Response - This allegation lacks merit.  The Navy case that the applicant relies on has substantially different facts from the present case – the most salient being that the applicant in that case was missing from duty because he was in a hospital receiving care for a psychiatric disorder, and the Navy failed to take measures to help the sailor.  It was because of this inaction by the Navy and lack of records that the court ruled against the application of the principle of presumption of regularity.  By contrast, in the present case there is ample record of the Air Force’s review of the SPCM despite a missing ROT and appellate record. Thus, in contrast to the Navy case, the AFBCMR cannot be accused of trying “to prove too much” through the presumption of regularity. Furthermore, the stark difference between the cases is that the applicant was not missing from duty due to receiving medical care; rather, he was missing from duty because of morphine cigarettes, then he disobeyed lawful orders, and he had a history of misconduct including three prior Summary Courts-Martial within five months.  Unlike in the Navy case, the Air Force took multiple steps to rehabilitate and support the applicant, including changing his duty section to accommodate his request and using lesser forms of discipline prior to the last resort SPCM. The applicant’s Commanding Officer informed the Eighteenth Air Force SJA that he would have initiated administrative separation proceedings but for the applicant’s latest act of insubordination that led to the Summary Court-Martial just prior to the misconduct that led to the SPCM.  Hence, the missing records in the two cases are distinguishable, and the Navy case does not bind the AFBCMR.  Finally, as a policy matter, for the AFBCMR to overturn a court-adjudged punishment because of missing records after 70 years would create an untenable and unjust expectation that is contrary to the ends of justice.

The complete advisory opinion is at Exhibit X.

APPLICANT’S REVIEW OF AIR FORCE EVALUATION

The Board sent a copy of the advisory opinion to the applicant on 14 Feb 22 for comment (Exhibit Y), and the applicant replied on 10 Mar 22.  In his response, the applicant’s counsel asked for more time to respond to the advisories.  The applicant’s case was closed on 10 Mar 22 (Exhibit Z).  On 22 Apr 22 the applicant’s counsel requested his case be reopened.  In his response, the applicant’s counsel responded to the advisory opinions and contends the applicant was sentenced to six months in jail and discharged with a BCD for showing up to work late one day which was an unfair punishment and an injustice.  In 1952, he was convicted and sentenced at a court-martial by a racist Air Force during the Jim Crow era without a single attorney present.  The Air Force lost the record of trial which would have shown the unfairness of the court-martial.  The UCMJ and the entire military justice system was less than one year old at the time and many of the rules in place were later found to be unconstitutional and bias against young black males.  The Advisory Opinion was drafted with the sole goal of convincing the Board to deny relief, apparently in part because the applicant has applied for relief so many times in the past.  The tortured logic that the Advisory Opinion employs to arrive at the recommendation to deny relief is intellectually dishonest at worst, and ignorant and closed-minded at best.

As for the applicant’s request to changing his race to African American, the term “Negroid” as annotated on his DD Form 214, is offensive.  A Washington Examiner article from 25 Jul 19, entitled, “Negroid found in military forms 20 years after term was ordered removed” outlines both the legal and practical history of the term.  As stated in the article “Negroid” is a racial term classification going as far back as far as the 1920’s.  It is a word that is deeply rooted in the systemic racism inherent to American culture. Regardless of the military’s regulatory authorization of the word, close resemblance to the N-word makes it patently offensive.  It was as offensive in the 1950s as it is today. In Jun 19, the House Armed Services Committee adopted an amendment to the 2020 National Defense Authorization Act that would necessitate the Defense Department to review all forms for racially offensive terms.

The applicant’s complete response is at Exhibit AA.

FINDINGS AND CONCLUSION

1.  The application was timely filed.

2.  The applicant exhausted all available non-judicial relief before applying to the Board.

3.  After reviewing all Exhibits, the Board remains unconvinced the evidence presented demonstrates an error or injustice.  The Board concurs with the rationale and recommendations of AFPC/DP2SSR and DAF/JA, finding the preponderance of the evidence does not substantiate the applicant’s contentions.  In the interest of justice, the Board considered upgrading the discharge based on fundamental fairness; however, given the evidence presented and the criminal history provided by the applicant, the Board finds no basis to do so noting the applicant’s post-service achievements did not outweigh the numerous misconduct before and after service.  Furthermore, the Board finds no error with the applicant’s DD Form 214 as it was prepared properly at the time of his discharge.  Therefore, the Board recommends against correcting the applicant’s records.

4.  The applicant has not shown a personal appearance, with or without counsel, would materially add to the Board’s understanding of the issues involved.

RECOMMENDATION

The Board recommends informing the applicant the evidence did not demonstrate material error or injustice, and the Board will reconsider the application only upon receipt of relevant evidence not already presented.

CERTIFICATION

The following quorum of the Board, as defined in Air Force Instruction (AFI) 36-2603, Air Force Board for Correction of Military Records (AFBCMR), paragraph 1.5, considered Docket Number BC-1991-01020-9 in Executive Session on 22 Jun 22:

, Panel Chair
, Panel Member
, Panel Member

All members voted against correcting the record.  The panel considered the following:

Exhibit F:	Record of Proceedings, w/ Exhibits A-E, dated 6 Aug 91.
Exhibit H:	Addendum Record of Proceedings, w/ Exhibit G, dated 23 Oct 03.
Exhibit L:	Second Addendum Record of Proceedings, w/ Exhibit K, dated 12 Feb 14.
Exhibit N:	Third Addendum Record of Proceedings, w/ Exhibit M, dated 16 Apr 15.
Exhibit S:	Fourth Addendum Record of Proceedings, w/ Exhibits P-R, dated 9 Aug 18.
Exhibit T:	Application, DD Form 149, w/atchs, dated 23 Aug 19.
Exhibit U:	Letter, SAF/MRBC, w/atchs (Post-Service Request and Clemency Guidance), dated 1 Sep 20.
Exhibit V:	Applicant’s Response, w/atchs, dated 27 Nov 20 and 6 Aug 21.
Exhibit W: Advisory Opinion, AFPC/DP2SSR, dated 15 Jun 21. 
Exhibit X: Advisory Opinion, DAF JAJI, dated 4 Feb 22.
Exhibit Y:	Notification of Advisory, SAF/MRBC to Applicant, dated 14 Feb 22.
Exhibit Z:  Applicant’s Request to Close Case, 10 Mar 22.
Exhibit AA: Applicant’s Response, w/atch, dated 22 Apr 22.

Taken together with all Exhibits, this document constitutes the true and complete Record of Proceedings, as required by AFI 36-2603, paragraph 4.11.9.