RECORD OF PROCEEDINGS
AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS

IN THE MATTER OF:	DOCKET NUMBER:  01-01979
		INDEX CODE:  126.00, 126.04

		COUNSEL:  NONE

		HEARING DESIRED:  NO

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APPLICANT REQUESTS THAT:

The nonjudicial punishment action, imposed on 7 May 56, and summary court-martial punishment, ordered executed on 10 May 56, be set aside, including his loss of rank, pay, and flight status.

His undesirable discharge be upgraded to general or honorable.

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APPLICANT CONTENDS THAT:

His court-martial was illegal.

His discharge is inequitable because it was based on one isolated incident in 48 months of service with no other adverse action.

Applicant’s complete submission is attached at Exhibit A.

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STATEMENT OF FACTS:

Prior to the enlistment under review, the applicant had a period of honorable service from 17 November 1952 to 27 October 1955.  He reenlisted on 28 October 1955 for a period of six years, in the grade of airman second class.

On 7 May 56, the squadron commander notified the applicant of his intent to impose punishment under the provisions of Article 15, Uniform Code of Military Justice (UCMJ), for issuing a check which was returned and marked insufficient funds.  It was also noted that this was not the first instance of this type of misdemeanor.  Applicant acknowledged receipt of the notification, did not demand trial by court-martial and did not submit matters in mitigation, extenuation, or defense.  Punishment consisted of a reduction to the grade of airman second class (A2/C) and a reprimand.  Applicant did not appeal the punishment.

On 9 May 56, charges were preferred against the applicant for allegedly uttering two checks, one each on 3 and 14 April 1956, each in the amount of $25, without maintaining sufficient funds in his bank account to cover their payment, in violation of Art 134, UCMJ.  On 10 May 1956, the charges were referred to a summary court-martial.  The applicant consented to be tried by the summary court-martial.  In accordance with his pleas, on 10 May 1956, he was found guilty of the offenses charged and was sentenced to confinement at hard labor for 15 days.

On 20 Aug 56, applicant acknowledged receipt of the administrative discharge action initiated against him for unfitness.  He waived his entitlement to appear before a board of officers and requested discharge in lieu of board proceedings.  He further acknowledged that he understood that if his application was approved, his separation could be under conditions other than honorable, he could receive an undesirable discharge, and that this may deprive him of rights as a veteran under both federal and state legislation.  On 24 Aug 56, the squadron commander recommended that the applicant be discharged by reason of unfitness in accordance with AFR 39-17.  The reason for the proposed recommendation was applicant’s continual and habitual uttering of bad checks on insufficient or closed accounts.  The commander noted applicant’s character rating as poor and his efficiency rating as unsatisfactory.  The group and wing commanders recommended that the applicant be discharged under the provisions of AFR 39-17.  On 2 Oct 56, the discharge authority approved the undesirable discharge.

On 18 Oct 56, the applicant was discharged from the Air Force under the provisions of AFR 39‑17 with an undesirable discharge in the grade of airman basic.  He was credited with 3 years, 10 months, and 16 days of active service (excluding 15 days of lost time).

Pursuant to the Board’s request, the Federal Bureau of Investigation, Clarksburg, West Virginia, provided an investigative report which is attached at Exhibit C.

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AIR FORCE EVALUATION:

AFLSA/JAJM recommends denial, stating that a set aside should only be granted when the evidence demonstrates an error or a clear injustice.  The applicant has provided no evidence of a clear error or injustice related to the entire nonjudicial punishment action.  AFLSA/JAJM further states that nonjudicial punishment is permitted by Article 15, UCMJ, (Section 815, Title 10, United States Code (USC), and governed by the Manual for Courts-Martial and, at the time of the applicant’s proceedings, Air Force Regulation 111‑9.  This procedure permits commanders to dispose of certain offenses without trial by court-martial unless the service member objects.  Pursuant to the Manual for Courts-Martial, 1951, service members first must be notified by their commanders of the nature of the charged offense and of the commander’s intent to impose nonjudicial punishment.  Unlike present procedures, the service member was not, at that time, entitled to consult with a military defense counsel to determine whether to accept nonjudicial punishment proceedings or demand trial by court-martial.  Accepting the proceedings is simply a choice of forum; it is not an admission of guilt.

A member accepting nonjudicial punishment proceedings was then, as now, entitled to submit matters in mitigation, extenuation, or defense to his commander.  They may have a hearing with the commander.  Members wishing to contest their commander’s determination or the severity of the punishment imposed could, as now, appeal to the next higher commander.  The appeal authority may set aside the punishment, decrease its severity, or deny the appeal.  Nonjudicial punishment does not constitute a criminal conviction.

AFLSA/JAJM further states that the function of a summary court-martial is to exercise justice promptly for relatively minor offenses under a simple form of procedure.  Under the rules then in existence at the time of the applicant’s court-martial, an officer selected by the convening authority constituted the court and represented both the Government and the accused.  The officer was charged to thoroughly and impartially investigate both sides of the matter and assure that the interests of both the Government and the accused were safeguarded.  Prior to trial, the summary court-martial officer advised the accused of the following: the general nature of the charges; the name of the accuser; the names of the witnesses to be called; the right of the accused to cross-examine them or have the court ask any questions which the accused desires answered; the right of the accused to call any witnesses or produce any evidence on his behalf with the assurance that the court will assist him in every way possible; his right to testify on the merits or to remain silent; and, after any findings of guilty are announced, to make an unsworn statement in mitigation or extenuation.

A complete copy of the Air Force evaluation is attached at Exhibit D.

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APPLICANT'S REVIEW OF AIR FORCE EVALUATION:

A copy of the Air Force evaluation was forwarded to applicant on 7 Dec 01 for review and response within 30 days.  As of this date, no response has been received by this office.

On 1 Apr 02, a copy of the FBI report was forwarded to the applicant for comment.  At that time, the applicant was also invited to provide additional evidence pertaining to his activities since leaving the service (Exhibit F).  As of this date, no response has been received by this office.

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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 regarding the applicant’s nonjudicial punishment.  Applicant’s contentions are duly noted.  However, after a thorough review of the evidence of record and applicant's complete submission, we are not persuaded that the nonjudicial punishment should be set aside.  Other than his own assertions, the applicant has not presented any evidence that the commander abused his discretionary authority in imposing the nonjudicial punishment when he concluded that reliable evidence existed to indicate the applicant had committed the alleged offense.  Therefore, we agree with the opinion and recommendation of the Air Force Legal Services Agency and adopt the rationale expressed as the basis for our decision that the applicant has failed to sustain his burden of having suffered either an error or injustice.  There being insufficient evidence to the contrary, we find no compelling basis to recommend favorable action on his request to set aside the nonjudicial punishment.

4.  We noted the applicant’s request to set aside the summary court-martial, ordered executed on 10 May 1956.  However, this Board is without authority to set aside, reverse, overturn, or otherwise expunge a court-martial conviction from an applicant’s record for cases tried or reviewed after enactment of the Uniform Code of Military Justice Act of 1983.

5.  After thoroughly reviewing the applicant’s submission and the available evidence of record, we find insufficient evidence of error or injustice warranting an upgrade of the characterization of the applicant’s discharge.  The discharge appears to be in compliance with the governing regulation and we find no evidence that his separation was inappropriate.  We also find insufficient evidence of error or injustice in this case warranting an upgrade of the discharge on the basis of clemency.  In this regard, we considered the applicant’s overall quality of service and the events which precipitated the discharge, as well as the contents of the FBI report of investigation and the absence of information concerning his activities since leaving the service.  On balance, we do not believe that clemency is warranted.
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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.

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The following members of the Board considered this application AFBCMR Docket Number 01-01979 in Executive Session on 29 May 2002, under the provisions of AFI 36-2603:

	Panel Chair
	Member
	Member

The following documentary evidence was considered:

    Exhibit A.  DD Form 149, dated 13 Jul 01, w/atchs.
    Exhibit B.  Applicant's Master Personnel Records.
    Exhibit C.  FBI Report of Investigation.
    Exhibit D.  Letter, AFLSA/JAJM, dated 2 Oct 01, w/atchs.
    Exhibit E.  Letter, SAF/MRBR, dated 7 Dec 01, w/atchs.
    Exhibit F.  Letter, AFBCMR, dated 1 Apr 02, w/atchs.