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

IN THE MATTER OF:	DOCKET NUMBER: BC-2001-03345
		INDEX CODE:  110.00, 134.00

		COUNSEL:  NONE

		HEARING DESIRED:  NO

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APPLICANT REQUESTS THAT:

In the applicant’s request for reconsideration, he requests that his under other than honorable conditions (UOTHC) discharge be upgraded to an honorable discharge and that his special court-martial conviction be expunged from his records.

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STATEMENT OF FACTS:

Applicant enlisted in the Regular Air Force on 2 November 1955 in the grade of airman basic for a period of four (4) years.  He reenlisted on 8 November 1957 in the grade of airman second class for a period of six (6) years.

On 2 February 1961, the applicant was tried by a special court-martial and was found guilty.  He was charged with graft in violation of Article 134, UCMJ, for unlawfully asking the sum of $42.00 from a class leader of Class Number 05100-C for a guarantee that Class Number 05100-C would successfully complete Airman Basic Resident Course Number 70230, and with failure to obey a lawful order in violation of Article 92, UCMJ, specifically Amarillo Technical Training Center Regulation 30-7, dated 15 October 1958, paragraph 2.b which prohibits soliciting or accepting money from any basic trainee, graduate trainee or trainee.  The applicant asked the class leader to collect money from each member of the class.  He was sentenced to a bad conduct discharge (BCD), confinement for 3 months, a forfeiture of $43.00 pay per month for three months, and reduction to airman basic.

The applicant’s personnel records contain a morning report showing that the applicant was released from confinement on 31 March 1961, with the remainder of the confinement suspended, and was discharged on that date with an under other than honorable conditions (UOTHC) discharge.  A UOTHC is an administrative discharge, and is not imposed by sentence of a court-martial.

Applicant was discharged on 31 March 1961, in the grade of airman basic with an under other than honorable conditions (UOTHC) discharge, under the provisions of AFR 39-17 (Unfit).  He served a total of 6 years, 4 months and 29 days total active duty.

EXAMINER’S NOTE:  It is apparent the convening authority provided clemency in reducing the period of confinement and not approving the punitive discharge imposed by the court.

On 21 May 2002, the Air Force Board for Correction of Military Records (AFBCMR) considered and denied the applicant’s request to upgrade his under other than honorable conditions (UOTHC) discharge to a honorable.  However, his request that his special court-martial conviction be expunged from his records was beyond the jurisdiction of the Board (Exhibits A-F).

On 4 June 2003, the applicant submitted a request for reconsideration, indicating that he desires clemency.  He advised that since his discharge he has turned his life around.  He is a productive member of the community, is currently employed as a driver and is actively involved in church.  He is a man of honor and is very proud to have served in the armed forces.  To support his claim, the applicant provided a personal statement and two character reference letters.  The applicant’s complete submission is at Exhibit G.

Pursuant to the Board's request, the Federal Bureau of Investigation, Clarksburg, West Virginia, indicated that they were unable to identify with an arrest record on the basis of data furnished - Exhibit I.

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THE BOARD CONCLUDES THAT:

1.	Insufficient relevant evidence has been presented to demonstrate the existence of an error or injustice warranting an upgrade of discharge.  The majority of the Board finds no evidence to show that the applicant’s discharge as a result of his conviction by court-martial was erroneous or unjust.  While the applicant believes his UOTHC discharge should be upgraded, the majority notes the convening authority, in approving the UOTHC discharge, provided some measure of clemency to the applicant when he reduced the period of confinement and did not approve the punitive discharge.  It appears the convening authority determined the UOTHC was an appropriate consequence that accurately described the applicant’s military service and his crimes.  Therefore, the majority is persuaded that the applicant’s discharge as a result of his conviction by court-martial was not erroneous or unjust.  In reference to the applicant’s request to have his court-martial conviction expunged, as stated in our earlier findings, this Board has no authority to reverse, set-aside, or expunge a court-martial conviction.

2.	The majority notes the post-service documentation submitted; however, they are not persuaded the information warrants a recommendation that the discharge be upgraded on the basis of clemency.  In this respect, the majority has considered applicant's overall quality of service, the events which precipitated the discharge, and his post-service conduct; on balance, the majority does not believe that clemency is warranted.

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THE BOARD DETERMINES THAT:

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

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The following members of the Board considered AFBCMR Docket Number BC-2001-03345 in Executive Session on 22 December 2003 and 4 February 2004, under the provisions of AFI 36-2603:

By a majority vote, the Board recommended denial of the application.  Mr. XXXX voted to correct the records and submitted a Minority Report.  The following documentary evidence was considered:

	Exhibit F.  Record of Proceedings, dated 19 June 2002,
                w/atchs.
    Exhibit G.  Letter, Applicant, dated 4 June 2003, w/atchs.
    Exhibit H.  Negative FBI Report.
    Exhibit I.  Letter, Applicant, dated 1 December 2003, w/atch.
    Exhibit J.  Letter, AFBCMR, dated 17 December 2003.
    Exhibit K.  Minority Report.

                                   

MEMORANDUM FOR	EXECUTIVE DIRECTOR, AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS (AFBCMR)
FROM:	AFBCMR 
1535 Command Drive
EE Wing, 3rd Floor
Andrews AFB, MD 20762-7002
SUBJECT:	   , AFBCMR Docket Number BC-2001-03345
I have carefully considered all the circumstances of this case and disagree with the majority of the panel that the applicant’s request should be denied in whole.
While the evidence does not support a finding that the actions taken to effect the applicant’s discharge were erroneous, I believe clemency would be appropriate in this case based on the following considerations.  The record indicates that the applicant served honorably for over five years before he committed the offense that led to his separation.  The evidence he has provided substantiates to my satisfaction that he has made a successful post-service adjustment.  He has a clean FBI record, also.  He has lived with the adverse effects of his discharge for 43 years and I believe that the continued imposition of the discharge would constitute an injustice.

In view of the above, I believe that on the basis of clemency, an upgrade to a general (under honorable conditions) discharge would be appropriate.

MEMORANDUM FOR	THE EXECUTIVE DIRECTOR, AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS (AFBCMR) 
FROM:	SAF/MRB
SUBJECT:	AFBCMR Case of 
I have carefully reviewed the circumstances of this case and do not agree with the AFBCMR majority that the applicant’s request to upgrade his discharge should be denied.  I believe that equity dictates relief on the basis of clemency.
The applicant was discharged on 31 March 1961, under the provisions of AFR 39-17 (Unfitness), with an under other than honorable conditions (UOTHC) discharge after serving 6 years, 4 months, and 29 days of active duty.  The record indicates the applicant served honorably for over five years before he committed the offense that led to his separation.  He has taken full responsibility for his past actions and appears to be a law-abiding citizen and highly thought of by members of his community.
The applicant has had to live with the adverse effect of his UOTHC discharge for over 43 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.  I note the Federal Bureau of Investigation (FBI) indicates they are unable to identify any arrest record to the applicant.  Since, it appears that the applicant was a good performer who simply made a mistake and in consideration of the apparent absence of criminal involvement since discharge, his separation should be upgraded to general as a matter of clemency.

	Certainly I do not condone the behavior that led to his UOTHC discharge.  Nonetheless, since it serves no useful purpose to the Air Force or to society in general to continue the nature of his discharge at this late date, it is my decision that his discharge be upgraded to a general (under honorable conditions) discharge.  Applicant’s request for a fully honorable discharge was considered; however, I do not believe the overall record supports a further upgrade.

Attachment:
Case File

AFBCMR BC-2001-03345

MEMORANDUM FOR THE CHIEF OF STAFF

	Under the authority of Section 1552, Title 10, United States Code and Air Force Instruction 36-2603, and having assured compliance with the provisions of the above regulation, the decision of the Air Force Board for Correction of Military Records is announced, and it is directed that:

	The pertinent military records of the Department of the Air Force relating to  , be corrected to show that on 31 March 1961, he was discharged with service characterized as general (under honorable conditions).