RECORD OF PROCEEDINGS
AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS

IN THE MATTER OF:	DOCKET NUMBER:  02-00546
		INDEX CODE:  123.00
		COUNSEL:  NONE

		HEARING DESIRED:  YES

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APPLICANT REQUESTS THAT:

The 104 days that were lost under Article 107 be restored.

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APPLICANT CONTENDS THAT:

His court-martial was in error because his defense counsel, who was not a lawyer, recommended that he confess.  By today’s standards, he was improperly represented.  If it would have happened today, there is a good chance that he wouldn’t even receive Article 15 punishment.  He got the indication that they believed his confession was an admission of guilt, which it wasn’t.  There were no injuries or real damage, just 2 trucks that bumped each other.  The truck he drove was a right-sided English truck.  Neither truck suffered any physical damage.  

In support of his request applicant provided character reference statements.  His complete submission, with attachments, is at Exhibit A.

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STATEMENT OF FACTS:

Applicant enlisted in the Army Air Force on 29 Dec 41.  On 1 Sep 45, he was discharged from the Army Air Force for the Convenience of the Government on 1 Sep 45.  He served 3 years, 4 months, and 19 days on active duty.

The remaining relevant facts pertaining to this application, extracted from the applicant’s military records, are contained in the letter prepared by the appropriate office of the Air Force at Exhibit C.  

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AIR FORCE EVALUATION:

AFLSA/JAJM reviewed applicant’s request and recommends denial.  JAJM states that a record of trial and his military personnel records cannot be located.  Although the record of trial has not been located, it is clear that he had 104 days of time lost presumably as a result of a sentence to confinement.  A court-martial during that time would have been conducted under the Articles of War.  There is a strong, but rebuttable, presumption that military personnel discharge their duties correctly, lawfully, and in good faith.  As such, it may be presumed that the procedures in effect at the time of his court-martial were followed.  Absent sufficient evidence, the presumption of regularity prevails over unsupported assertions by the applicant to the contrary.  The applicant raised an issue about the sufficiency of the evidence and the lack of an attorney.  The sufficiency of evidence issues are factual that were resolved against him at trial and cannot be reasonable reargued and evaluated at this point.  Under the Articles of War, there was no requirement that trial and defense counsel be attorneys.  The right of representation by an attorney in all cases was established after his court-martial and in advance of a similar right being recognized by the U.S. Supreme Court for even felony trials.  

The applicant has failed to show that the court-martial was improper or that he was not provided due process.  A correction should only be made when the evidence demonstrates an error or clear injustice, or that clemency is warranted.  He has provided no evidence of a clear error or injustice.  There is no basis for clemency or merit to his claim.  

JAJM recommends that the applicant be advised that he may apply for Presidential pardon under the provision of Title 28, Section 1.1.  The JAJM evaluation is at Exhibit C.

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APPLICANT'S REVIEW OF AIR FORCE EVALUATION:

A copy of the Air Force evaluation was forwarded to the applicant on 3 Jun 02 for review and comment within 30 days.  As of this date, this office has received no response.

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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 probable error or injustice.  The Board majority agrees with the comments of the Office of the Judge Advocate General and believes that based upon the presumption of regularity in the conduct of governmental affairs it is appropriate in this case to assume that the applicant's court-martial was proper and in compliance with appropriate directives at the time it was conducted.  Therefore, based on the available evidence of record, and in the absence of evidence to the contrary, the Board majority finds no basis upon which to favorably consider this application.

4.  The applicant's case is adequately documented and it has not been shown that a personal appearance with or without counsel will materially add to our understanding of the issue involved.  Therefore, the request for a hearing is not favorably considered.

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THE BOARD RECOMMENDS 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 Docket Number 02-00546 in Executive Session on 7 Aug 02, 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 but does not desire to submit a Minority Report.  The following documentary evidence was considered:

    Exhibit A.  DD Form 149, dated 29 Jan 02, w/atchs.
    Exhibit B.  Applicant's Available Master Personnel Records.
    Exhibit C.  Letter, AFLSA/JAJM, dated 22 May 02, w/atch.
    Exhibit D.  Letter, SAF/MRBR, dated 3 Jun 02.

                                 

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

SUBJECT:  AFBCMR Application of APPLICANT

	I have carefully reviewed the evidence of record and the recommendation of the Board members.  A majority found that the applicant had not provided sufficient evidence of error or injustice and recommended the case be denied.  I concur with that finding and their conclusion that relief is not warranted.  Accordingly, I accept their recommendation that the application be denied.

	Please advise the applicant accordingly.