RECORD OF PROCEEDINGS
AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS

IN THE MATTER OF:	DOCKET NUMBER:  BC-2003-00353
		INDEX CODE:  
		COUNSEL:  NONE

		HEARING DESIRED:  NO

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APPLICANT REQUESTS THAT:

1.  His records be corrected to show his retirement grade as master sergeant.

2.  Any references to his court-martial be removed from his records.

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APPLICANT CONTENDS THAT:

He was told at the time of his court-martial that his rank would be returned after 10 years.  He has already paid for the mistake he made while at Korea.  He was court-martialed for transferring goods to a foreign national, a charge he would not have faced if he were in the United States.  It is unfair and unethical to have something hanging over his head that was done in another country and does not pertain to the laws here in the States.  He has had the burden of the court-martial held over his head for 11 years and hopes that the issue can be resolved.

In support of his request applicant provided a copy of his DD Form 214, Certificate of Release or Discharge from Active Duty.  His complete submission, with attachments, is at Exhibit A.

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STATEMENT OF FACTS:

Applicant contracted his initial enlistment in the Regular Air Force on 27 Jul 73 and was progressively promoted to the grade of master sergeant, having assumed that grade effective and with a date of rank of 1 May 88.  

On 5 Feb 93, the applicant was tried by special court for a specification of transferring duty-free goods.  He plead not guilty and was found guilty.  He was sentenced to hard labor without confinement for 3 months, forfeiture of $300 pay per month for 3 months, and reduction to the grade of technical sergeant (E-6).  His sentence was approved on 30 Mar 93.  

On 1 Dec 93, the applicant was voluntarily retired from the Air Force in the grade of technical sergeant.  He served 20 years, 4 months, and 4 days on active duty.  The Secretary of the Air Force Personnel Council determined that the applicant satisfactorily served in the grade of master sergeant and directed that he be advanced to that grade on the retired list effective the date his active service plus his retired service equals 30 years.  On 27 Jul 03, applicant will be advanced to the grade of master sergeant.

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AIR FORCE EVALUATION:

AFLSA/JAJM recommends denial.  JAJM states that under Title 10 USC Section 1552 the AFBCMR's ability to correct records related to court-martial is limited.  The Board may correct a record to reflect actions taken by reviewing authorities under the Uniform Code of Military Justice.  Additionally the Board may correct records related to action on the sentence of court-martial for the purpose of clemency.  Apart from these two limited exceptions, the effect of Section 1552 is that the Board is without authority to reverse, set-aside, or otherwise expunge a court-martial conviction that occurred on or after 5 May 50.  

The applicant was charged with violating a lawful general regulation in Korea by transferring duty-free goods in violation of Article 92, UCMJ.  He does not allege the regulation was not lawful or that he did not have a duty to obey it.  Article 92 applies to all military members, wherever they may be located.  He believes that advancement on the retired list voids his court-martial action.  He submits no authority to support his contention.  The JAJM evaluation is at Exhibit C.

AFPC/DPPRRP recommends denial.  DPPRRP states that in accordance with AFI 36-3202, the grade shown on the DD Form 214 is the active duty grade held at separation.  His active duty grade at separation was technical sergeant and no action is required to correct his DD Form 214.  Advancement to the grade of master sergeant is for retirement pay purposes only.  The DPPRRP evaluation is at Exhibit D.

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APPLICANT'S REVIEW OF AIR FORCE EVALUATION:

Copies of the Air Force evaluations were forwarded to the applicant on 30 May 03 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 error or injustice that would warrant corrective action.  The Board notes that in accordance with the decision of the Secretary of the Air Force Personnel Council, the applicant's grade will be advanced to master sergeant on the retired list for pay purposes on 27 July 2003.  We agree with the Air Force office of primary responsibility that his discharge documents properly reflect his grade held at separation and the applicant has not provided evidence which lead us to believe otherwise.  With respect to his request to remove all references to his court-martial action from his records, we are not persuaded by his uncorroborated assertions that the actions taken against him were improper, contrary to the provisions of the governing regulations, or that he was denied rights to which he was entitled.  The comments of the Office of the Judge Advocate General are supported by the evidence of record.  Therefore, we find no evidence of an error in this case and after thoroughly reviewing the evidence presented, we do not believe he has been the victim of an injustice.  Accordingly, based on the evidence of record, we find no basis upon which to favorably consider this application.

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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 AFBCMR Docket Number BC-2003-00353 in Executive Session on 15 Jul 03, under the provisions of AFI 36-2603:

	Panel Chair
	Member
	Member

The following documentary evidence was considered:

    Exhibit A.  DD Form 149, dated 28 Jan 03, w/atchs.
    Exhibit B.  Applicant's Master Personnel Records.
    Exhibit C.  Letter, AFLSA/JAJM, dated 17 Apr 03.
    Exhibit D.  Letter, AFPC/DPPRRP, dated 16 May 03, w/atchs.
    Exhibit E.  Letter, SAF/MRBR, dated 30 May 03.

                                   
                                   Panel Chair