RECORD OF PROCEEDINGS
AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS

IN THE MATTER OF:	DOCKET NUMBER: BC-2002-03596

	 	COUNSEL:  NONE

	 	HEARING DESIRED:  NO

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APPLICANT REQUESTS THAT:

His bad conduct discharge (BCD) be upgraded.

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THE APPLICANT CONTENDS THAT:

His discharge should be upgraded in consideration of his two previous honorable periods of service, and the fact that he has been a fine citizen.

The applicant states that he was young and immature at the time, and was suffering both mentally and physically from problems with his supervisor.

In support of the appeal, the applicant submits a copy of the DD Form 214, Armed Forces of the United States Report of Transfer or Discharge, issued in conjunction with his 23 June 1957 honorable discharge.

Applicant’s complete submission, with attachment, is at Exhibit A.

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STATEMENT OF FACTS:

The applicant served in the Army Air Corps from 26 February 1942 through 6 June 1945, as a B-24 aerial gunner and radio operator, in Europe and the Philippine Islands.  During this period, he was progressively promoted to the grade of staff sergeant, completed a total of 30 combat missions, and was awarded five Air Medals.  In addition, his service was characterized as honorable.

He enlisted in the Regular Air Force (RegAF) on 16 December 1953, for a period of four years.

He was tried by a summary court-martial on 28 January 1954, for violating Article 134 of the Uniform Code of Military Justice (UCMJ).  Specifically, for being incapacitated for the proper performance of his duties on 24 January 1954, as a result of previous indulgence in intoxicating liquor.  He pled not guilty to the charge, was found guilty of the charge, and sentenced to confinement at hard labor for 30 days, reduction to the grade of basic airman, and forfeiture of $60.00.  On that same date, the sentence was approved and ordered executed.

He was tried by a general court-martial on 5 August 1955, for violating Article 86 of the UCMJ.  Specifically, for being Absent without Leave (AWOL) from 4 August 1954 to 8 July 1955.  He pled guilty to the charge, was found guilty of the charge, and was sentenced to be dishonorably discharged, forfeiture of all pay and allowances, and confinement at hard labor for six months.  The sentence was adjusted on 5 August 1955.  The sentence was approved on 12 August 1955; however, the execution of the dishonorable discharge was suspended until he was released from confinement, and was remitted one year after his release from confinement.

On 23 June 1957, he was honorably discharged and on 24 June 1957, reenlisted in the RegAF for a period of four years.  He was progressively promoted to the grade of airman second class.

In a letter, dated 20 November 1957, the commander notified him of his intent to impose nonjudicial punishment under Article 15 of the Manual for Courts-Martial 1951, for being in an off-limits area on 9 November 1957.  He waived his right to a trial by court-martial and submitted no matters in mitigation, extenuation, or defense.  The commander imposed punishment consisting of demotion to the grade of airman third class.  He did not appeal the punishment.

He was tried by a special court-martial on 13 March 1959, for violating Article 86 of the UCMJ.  Specifically, for being Absent without Leave (AWOL) from 17 June 1958 to 20 February 1959.  He was found guilty of the charge and was sentenced to a BCD, reduction to the grade of airman basic, confinement at hard labor for six months, and forfeiture of $70.00 per months for six months.  The sentence was adjusted on 13 March 1959 and approved on 26 March 1959.

The convening authority approved his BCD on 1 April 1959.

On 16 April 1959, the Air Force Court of Military Review (AFCMR) affirmed the finds of guilty and the sentence.  He appealed to the Court of Military Appeals (COMA) and his petition was denied on 19 June 1959.

On 13 August 1959, he was discharged under other than honorable conditions, under the provisions of AFR 39-18, and issued a DD Form 259AF (BCD Certificate).  He completed 6 years, 3 months, and 27 days of active service, which excludes 960 days of lost time (Confinement 28 Jan 54 - 27 Feb 54 (32 days), AWOL 4 Aug 54 - 8 Jul 55 (339 days), Confinement 15 Jul 55 - 22 Dec 55 (167 days), AWOL 17 Jun 58 - 20 Feb 59 (249 days), and Confinement 21 Feb 59 - 13 Aug 59 (174 days)).

In an application, dated 13 August 1972, he requested his discharge be upgraded to one under honorable conditions.  In a letter, dated 25 June 1973, he was advised that the AFBCMR found insufficient evidence of an error or injustice, and denied his request (Exhibit C).

Pursuant to the Board's request, the Federal Bureau of Investigation (FBI), Clarksburg, WV, indicated that on the basis of the data furnished, they were unable to locate an arrest record (Exhibit F).

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AIR FORCE EVALUATION:

AFLSA/JAJM states, in part, that the AFBCMR’s ability to correct a court-martial record is limited to the actions taken by reviewing authorities under the Uniform Code of Military Justice (UCMJ) and to action on the sentence of courts-martial for the purpose of clemency.  Since there is no indication of an error concerning the court-martial record, any decision regarding the applicant’s discharge would be done as a matter of clemency.

The AFLSA/JAJM evaluation is at Exhibit D.

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APPLICANT’S REVIEW OF AIR FORCE EVALUATION:

The applicant reviewed the AFLSA/JAJM evaluation and states, in part, that during World War II, he became an alcoholic and a compulsive gambler.  After his honorable discharge from the Army Air Corps, he spent a few years on skid row selling blood and working day labor.  He then reenlisted in the Air Force and was assigned to Chanute Field, Illinois.  While on a weekend pass, he went to Chicago where he entered a bar where gambling was wide open.  He won $1,500.00 the first day and continued drinking and gambling until he was AWOL.  He turned himself in once he was broke and dried-out.  He was found guilty of desertion by a general court-martial; however, in view of his war record, he was given a chance at rehabilitation.  He completed a one-year rehabilitation program and was subsequently honorably discharged for reenlistment.  While at Portland AFB, he had a personality conflict with his officer-in-charge (OIC) and requested a transfer from his commander.  However, the commander refused his request.  After coming in to work late one morning, his OIC told him he did not care if he ever came to work.  His pride and self respect told him he was in a no-win situation, so he packed his clothes and left.  At the time, he felt the Air Force was equally guilty since they did not use him in one of several jobs he was qualified to perform.  He now realizes that he should have gone to the Judge Advocate General and left a letter of resignation.  At his current age of 81, all of his friends are gone and he is the only one left to attest to his character.

Applicant’s complete responses, with attachments, is at Exhibit H.

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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.  Even though the applicant has provided no evidence to show that his discharge was improper, it is our opinion that approval of some relief is warranted in this case.  It appears that he has led a stable and productive life and there is no evidence that he has had any subsequent serious involvement of a derogatory nature since his separation from the Air Force.  In light of the above, we believe that it would be an injustice for him to continue to suffer the adverse effects of his BCD discharge.  Therefore, on the basis of clemency, we believe an upgrade of his discharge to general (under honorable conditions) is warranted.  Accordingly, we recommend that his records be corrected as indicated below.

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THE BOARD RECOMMENDS THAT:

The pertinent military records of the Department of the Air Force relating to APPLICANT be corrected to show that at the time of his discharge on 13 August 1959, he was discharged with service characterized as general (under honorable conditions).

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The following members of the Board considered Docket Number BC-2002-03596 in Executive Session on 28 August 2003, under the provisions of AFI 36-2603:

The following documentary evidence was considered:

    Exhibit A.  DD Form 149, dated 4 Nov 02, w/atch.
    Exhibit B.  Applicant's Master Personnel Records.
    Exhibit C.  Letter, SAFCB, dated 25 Jun 73, w/atchs.
    Exhibit D.  Letter, AFLSA/JAJM, dated 31 Jan 03.
    Exhibit E.  Letter, SAF/MRBR, dated 21 Feb 03.
    Exhibit F.  Letter, Req for FBI Report, dated 15 Jul 03.
    Exhibit G.  Letter, AFBCMR, dated 16 Jul 03, w/atch.
    Exhibit H.  Letters, Applicant, undated, w/atchs. 

AFBCMR BC-2002-03596

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 APPLICANT, be corrected to show that at the time of his discharge on 13 August 1959, he was discharged with service characterized as general (under honorable conditions).