RECORD OF PROCEEDINGS
AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS

IN THE MATTER OF:				DOCKET NUMBER:  BC-2003-02934
INDEX CODE:  110.02
	XXXXXXXXXXXXXXXXXX			COUNSEL: NONE

	XXXXXXXXXXX					HEARING DESIRED:  NO

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APPLICANT REQUESTS THAT: 

His dishonorable discharge be upgraded to honorable.

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APPLICANT CONTENDS THAT:

He was treated unjustly given the circumstances surrounding his family situation at the time of his discharge.  Since his discharge, he has led an exemplary life.  He wishes to be more active with the Veterans of Foreign Wars (VFW) and to be a more honorable father and husband.

In support of his application, he provides a personal statement.  A copy of the applicant’s complete submission with attachment is at Exhibit A.

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STATEMENT OF FACTS:

On 16 February 1954, the applicant enlisted in the Regular Air Force at the age of 17 in the grade of airman basic (E-1) for a period of four years.  He was progressively promoted to the grade of airman second class (E-3) effective 17 December 1954 with a date of rank of 1 December 1954.

On 12 July 1955, a summary court-martial found the applicant guilty of being in a known house of prostitution (an established off-limits area).  The court sentenced him to forfeiture of $45.  On 13 July 1956, a general court-martial found the applicant guilty of being Absent Without Leave (AWOL) for the periods 19 March 1956 through 2 May 1956 and 13 June 1956 through 25 June 1956.  The court sentenced him to six months of hard labor, forfeiture of $39 per month for six months and a bad conduct discharge.  The applicant’s bad conduct discharge was later suspended following recommendations for clemency from the prison officer, chaplain, and the staff judge advocate.  The applicant was allowed to retrain and continue his military career.  On 15 April 1957, the applicant was found guilty by a general court-martial of being AWOL on or about 15 September 1956 through 5 March 1957.  The court sentenced him to forfeiture of all pay and allowances, confinement at hard labor for three months, and a dishonorable discharge.  On 24 June 1957, an unexecuted portion (58 days) of the applicant’s confinement sentence was remitted effective 3 July 1957.

On 3 July 1957, the applicant was dishonorably discharged.  He served 2 years, 2 months, and 23 days on active duty.  Time lost was 422 days.  

On 29 March 1960, the applicant enlisted in the Regular Air Force under the assumed name of his brother and concealed his previous enlistment.  On 8 June 1960, after fingerprints were identified, authorities at Lackland Military Training Center were notified of the applicant’s fraudulent enlistment.  On 29 June 1960, his commander notified the applicant of his recommendation for the applicant’s undesirable discharge.  On 5 July 1960, the applicant waived his right to a hearing before an administrative discharge board and elected not to submit a statement in his own behalf.  On 16 August 1960, civil authorities arrested the applicant for forgery and uttering.  On 20 October 1960, he was found guilty by civil court and sentenced to 18 months of confinement.

On 4 January 1961, while he was still incarcerated by civilian authorities, the applicant was discharged with an Under Other Than Honorable Conditions (UOTHC) characterization of service.  He did not receive any service credit based on his fraudulent enlistment.

Pursuant to the Board’s request, the Federal Bureau of Investigation, Clarksburg, WV, provided a copy of an Investigation Report pertaining to the applicant, which is at Exhibit F.

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AIR FORCE EVALUATION:

AFLSA/JAJM recommended denial.  It is JAJM’s opinion that while clemency is an option, there is no reason for the Board to exercise clemency in this case.  The applicant was given an opportunity to recover after his second court-martial, but the applicant was again AWOL a few months later.  JAJM stated there are consequences for criminal behavior ‑‑ the military judge, convening authority, and the appellate court believed a dishonorable discharge was an appropriate consequence that accurately characterized his military service and his crimes.  JAJM indicated that though his life of public service is commendable, his later good conduct does not justify criminal behavior during his enlistment, which appropriately ended with a dishonorable discharge.  

JAJM stated the applicant has identified no error or injustice related to the sentence of his court-martial.  He presents insufficient evidence to warrant upgrading the dishonorable discharge, and does not demonstrate an equitable basis for relief.  Based on the circumstances in this case, an alternative for the applicant is to apply for a presidential pardon.

The JAJM evaluation is at Exhibit C.

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APPLICANT'S REVIEW OF AIR FORCE EVALUATION:

Copies of the Air Force evaluation and the FBI report were forwarded to the applicant on 19 December 2003 (Exhibit D) and 4 February 2004 (Exhibit E) for review and comment.  To date, this office has not received a response concerning either the Air Force evaluation or the FBI report.

On 24 February 2003, the applicant was given the opportunity to submit comments about his post service activities (Exhibit G).  His reply, 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.  Insufficient relevant evidence has been presented to demonstrate the existence of probable error or injustice.  The applicant’s discharge had its basis in his trial and conviction by a court-martial.  We are constrained to note that, in accordance with Title 10, United States Code, Section 1552(f); actions by this Board are limited to corrections to the record to reflect actions taken by the reviewing officials and action on the sentence of the court-martial for the purpose of clemency.  There is nothing in the evidence provided which would lead us to believe that a change to the actions of any of the reviewing officials is warranted.  The majority of the Board does not find the evidence provided sufficient to mitigate the approved dishonorable discharge given the circumstances of the case.  Additionally, the Board majority reviewed the information pertaining to the applicant’s post-service activities and, considering the severity and multiplicity, of the applicant’s misconduct during his periods of service in the Air Force, is not inclined to favorably consider clemency in this case.  Therefore, the majority of the Board finds no compelling basis to recommend granting the relief sought in this application. 

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RECOMMENDATION OF THE BOARD:

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

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The following members of the Board considered this application in Executive Session on 11 March 2004, under the provisions of AFI 36-2603:

Mr.   and Ms.   voted to deny the application.  Mr.   voted to correct the record as requested but did not wish to submit a minority report.  The following documentary evidence for AFBCMR Docket Number BC-2003-02934 was considered:

	Exhibit A.  DD Form 149, dated 28 Aug 03, with attachments.
	Exhibit B.  Applicant's Master Personnel Records.
	Exhibit C.  Letter, AFLSA/JAJM, dated 8 Dec 03. 
	Exhibit D.  Letter, SAF/MRBR, dated 19 Dec 03. 
	Exhibit E.  Letter, AFBCMR, dated 4 Feb 04. 
	Exhibit F.  FBI Report No. 755510C, dated 13 Jan 04. 
	Exhibit G.  Letter, AFBCMR, dated 9 Jan 04. 
	Exhibit H.  Applicant’s Rebuttal, dated 20 Jan 04. 

									

AFBCMR BC-2003-02934

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

SUBJECT:  AFBCMR Application of XXXXXXXXXXXXXXXXXXXXXXXX

	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.