RECORD OF PROCEEDINGS
         AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS

IN THE MATTER OF:	DOCKET NUMBER:  BC-2003-03770
		INDEX CODE:  110.02

	XXXXXXX	COUNSEL:  NONE

	XXXXXXX	HEARING DESIRED: NO

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APPLICANT REQUESTS THAT:

His dishonorable (sic) discharge be upgraded.

Examiner’s Note:  Applicant received a bad conduct discharge.

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APPLICANT CONTENDS THAT:

He was 17 years of age at the time and the ruling of a dishonorable discharge was too harsh and a disgrace to have to live with for the rest of his life.  

The time he served was just and he has spent his time subsequent to his discharge upgrading his schooling (GED and trade schools) and making himself a good American.  He was told his discharge would be reviewed and upgraded.  He has been a law-abiding citizen for almost 48 years. 

Applicant’s complete submission is at Exhibit A.

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STATEMENT OF FACTS:

Applicant enlisted in the Regular Air Force on 12 Jan 55 for a period of four years in the grade of airman basic.  

On 10 Oct 56, applicant was convicted by a General Court-Martial after pleading guilty to two specifications of larceny, two specifications of escape and one specification of AWOL.  Applicant was also charged with one specification of desertion, of which he was found not guilty, but was found guilty of an additional charge of AWOL.  He was sentenced to a dishonorable discharge, forfeiture of all pay and allowances, and confinement at hard labor for four years.  His sentence was adjudged on 18 Dec 56 by the convening authority, with the dishonorable discharge, forfeiture of all pay and allowances, and confinement at hard labor for two years being approved.  On 2 May 57, the US Air Force Board of Review affirmed the findings of guilty and the sentence.  On 26 Jun 57, the United States Air Force Court of Military Appeals (now called the U.S. Court of Appeals for the Armed Forces) denied the applicant’s petition for grant of review, finding that the Board of Review had not erred and therefore the applicant was not entitled to a grant of review.  On 16 Sep 57, the convening authority mitigated the dishonorable discharge to a bad conduct discharge and he was discharged under the provisions of AFR 39-18 with a bad conduct discharge in the grade of airman basic, with service characterized as under other than honorable conditions.  He was credited with 10 months of active duty service (excludes 673 days of lost time due to AWOL and confinement).

Pursuant to the Board’s request, the Federal Bureau of Investigation, Clarksburg, West Virginia, provided an investigative report which is attached at Exhibit C.

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AIR FORCE EVALUATION:

AFLSA/JAJM reviewed this application and recommended denial.  They opined that the applicant is not contending that a specific error occurred which requires the correction of his court-martial record and there is no indication in the record of such an error.  Thus, any decision regarding the applicant's discharge status would be done as a matter of clemency.  While clemency is an option, there is no reason for the Board to exercise clemency in this case.  The applicant committed the offenses when he was 17 and 18 years old.  He was a young parent at the time with only a ninth grade education.  Nonetheless, his brief period of service, which included confinement, cannot reasonably be described as honorable service.  The applicant received a reduced confinement and mitigation of his discharge from dishonorable to a bad conduct discharge because of his youth and family circumstances.  

A complete copy of the evaluation is at Exhibit D.

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APPLICANT'S REVIEW OF AIR FORCE EVALUATION:

A copy of the Air Force evaluation was forwarded to the applicant on 27 Feb 04 for review and comment within 30 days.  As of this date, no response has been received by this office (Exhibit E).

On 26 Apr 04, a copy of the FBI report was forwarded to the applicant for comment.  At that time, the applicant was also invited to provide additional evidence pertaining to his activities since leaving the service (Exhibit F).  As of this date, no response has been received by this office.

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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.  The applicant’s submission was thoroughly reviewed, and his contentions were duly noted.  However, we do not find the applicant’s assertions, in and of themselves, sufficiently persuasive to override the rationale provided by the Office of the Judge Advocate General.  The evidence of record indicates the applicant was convicted by general court-martial for stealing, escaping confinement and for being absent without leave (AWOL).  No evidence has been presented which would lead us to believe that the applicant’s service characterization was improper.  Therefore, in the absence of persuasive evidence to the contrary, we adopt the Air Force rationale as the basis for our conclusion that the applicant has not been the victim of an error or injustice and conclude that no basis exists to recommend granting the relief sought in this application.  Notwithstanding the above, we note that the applicant did not provide any information pertaining to his activities since leaving the service.  If he were to submit any post-service documentation, the Board may be willing to reconsider his appeal as a matter of clemency.

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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-2003-03770 in Executive Session on 10 June 2004, under the provisions of AFI 36-2603:

The following documentary evidence was considered:

    Exhibit A.  DD Form 149, dated 22 Nov 03. 
    Exhibit B.  Applicant's Master Personnel Records.
    Exhibit C.  FBI Report of Investigation.
    Exhibit D.  Letter, AFLSA/JAJM, dated 24 Feb 04.
    Exhibit E.  Letter, SAF/MRBR, dated 27 Feb 04.
    Exhibit F.  Letter, AFBCMR, dated 26 Apr 04, w/atchs.