ADDENDUM TO
RECORD OF PROCEEDINGS
AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS

IN THE MATTER OF:		DOCKET NUMBER: BC-1999-01138
					INDEX CODE:  110.00

					COUNSEL: NONE

					HEARING DESIRED:  NO

RESUME OF CASE:

On 21 June 1967, 28 May 1976, and 14 September 1999, the Board considered and denied applicant’s request that his dishonorable discharge be upgraded to general (under honorable conditions).  A complete copy of the Record of Proceedings, with attachments, is attached at Exhibit E.

In a letter dated 4 October 1999, with attachments, applicant states that new laws on Federal land in California, as set forth by State and Federal Regulatory Acts of 1998 has inadvertently affected his livelihood.  He is 65 years old and is no longer working.  He was hospitalized for cancer and in four months his insurance coverage will expire.  Without an income to pay for his insurance coverage, he faces a crisis of great hardship with his medical needs.  He states that as a former member of the service, he has exhausted all administrative remedies.  However, Title 10, USC, Section 1552(F) provides for clemency.  This statute offers the only hope he has available along with his extraordinary conduct in civilian life.  He states that he is a good man and worthy of clemency.  He has fought in a war, endured four years of confinement and has suffered the effects of a court martial for many years as punishment.  In the event favorable consideration is given, it does not set aside or reverse the findings of the court martial.  The guilty verdict and discharge will not change.  Under these terms, the only change, and what it means to him, is that he can return to work and earn a living for his family (Exhibit F).

THE BOARD CONCLUDES THAT:

1.	After thoroughly reviewing the entire case file, to include the additional documentation, a majority of the Board is not persuaded that relief is warranted on the basis of clemency.  The Board majority finds no impropriety in the characterization of applicant’s discharge.  It appears that responsible officials applied appropriate standards in effecting the separation, and the majority does not find persuasive evidence that pertinent regulations were violated or that applicant was not afforded all the rights to which entitled at the time of discharge.  The 
majority concludes, therefore, that the discharge proceedings were proper and characterization of the discharge was clearly appropriate to the existing circumstances.

2.	Further, the majority of the Board has considered the particularly egregious nature of applicant’s misconduct in 1954 that precipitated his dishonorable discharge (i.e., rape of a Korean national, assault and battery on a Korean national, assault with a dangerous weapon, wrongful and willful discharge of a pistol in a Korean dwelling under such circumstances as to endanger human life, and absence without leave for one day), and the available evidence relating to his post-service activities and accomplishments.  On balance, the Board majority does not believe that clemency is warranted.

THE BOARD DETERMINES THAT:

A majority of the panel finds insufficient evidence of error or injustice and recommends the application be denied.

The following members of the Board considered this application in Executive Session on 15 May & 22 June 2000, under the provisions of AFI 36-2603:

By a majority vote, the Board recommended denial of the application.  XXXXXXXXXXXXXXXXXX voted to correct the records but does not desire to submit a Minority Report.  The following documentary evidence was considered:

   Exhibit E.  Record of Proceedings, dated 24 Sep 99, w/atchs.
   Exhibit F.  Letter, Applicant, dated 4 Oct 99, w/atchs.

					   

MEMORANDUM FOR THE EXECUTIVE DIRECTOR, AIR FORCE BOARD FOR
			    CORRECTION OF MILITARY RECORDS

FROM:  SAF/MIB

SUBJECT:  

I have carefully considered the rationale of the majority members of the Air Force Board for Correction of Military Records (AFBCMR); however, I agree with the minority member that applicant’s discharge should be upgraded on the basis of clemency.  Furthermore, I believe that in view of the circumstances of this case, equity dictates that the applicant’s sentence should be reduced to less than one year.

After reviewing the new documentation, which includes statements from the applicant’s former assistant defense counsel and the former assistant trial counsel, it appears that the system may have erred and that the applicant may not have been guilty of the offense of which he was convicted.  In this respect, there appears to be some doubt regarding the veracity of the testimony of at least one witness and the accuracy of the translation of testimony by the Korean interpreter.  More importantly, however, as noted by the statement from the Commissioner, Viejas Tribal Gaming Commission, the applicant has led an exemplary life for over forty years and has been gainfully employed on the Viejas Indian Reservation.  He has had to live with the adverse effect of his dishonorable discharge for over 45 years, and while the discharge may have been appropriate at the time, I believe it would be an injustice for him to continue to suffer from its effects.

In view of the foregoing, it is my decision that the applicant’s discharge be upgraded to under honorable conditions (general) and that his sentence be reduced to less than one year.  Regardless of this decision (even though the evidence submitted strongly suggests that, at worst, he may have been guilty of a misdeamnor), we are unable to change this fact at this late date.

AFBCMR 99-01138

MEMORANDUM FOR THE CHIEF OF STAFF

	Having received and considered the recommendation of the Air Force Board for Correction of Military Records and under the authority of Section 1552, Title 10, United States Code (70A Stat 116), it is directed that:

	The pertinent military records of the Department of the Air Force relating to, be corrected to show that:

		    a.  So much of the sentence of the General Court Martial Order (GCMO) #XX, Headquarters Fifth Air Force, dated 19 July 1954, as affirmed by GCMO #26, dated 3 February 1955, relating to a dishonorable discharge, be, and hereby is, set aside.

		    b.  So much of the sentence of the GCMO #XX, Headquarters Fifth Air Force, dated 19 July 1954, as affirmed by GCMO #XX, dated 3 February 1955, relating to confinement at hard labor in excess of eleven (11) months be, and hereby is, set aside.

		    c.  He was discharged under honorable conditions on 15 July 1954, and furnished a General Discharge Certificate.