RECORD OF PROCEEDINGS
         AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS

IN THE MATTER OF:	DOCKET NUMBER:  BC-2004-00673
		INDEX CODE:  126.04

		COUNSEL:  NONE

		HEARING DESIRED:  NO

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APPLICANT REQUESTS THAT:

His Federal Bureau of Investigation (FBI) record and his Special Court-Martial conviction be sealed or expunged.

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APPLICANT CONTENDS THAT:

He has turned his life around.  

He has been sober for twenty years.

His conviction is preventing him from obtaining the necessary documentation to maintain his job.

In support of his appeal, the applicant provided a personal statement, supportive statements, and other documents associated with the matter under review.

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

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STATEMENT OF FACTS:

The applicant initially enlisted in the Regular Air Force on 7 Jul 53 for a period of four years.

On 27 Jan 64, the applicant was convicted by special court-martial of two specifications of the intent to defraud and for the procurement of lawful currency and merchandise by wrongfully and unlawfully making and uttering two checks without sufficient funds.  He was sentenced to a bad conduct discharge, confinement for two months, and reduction to the grade from airman second class to airman basic.  The convening authority approved the sentence as adjudged. 

On 20 Feb 64, the approved sentence of the special court-martial having been affirmed, the applicant’s discharge was ordered into execution.  He was discharged with a bad conduct discharge on 8 May 64.  He was credited with 10 years, 6 months, and 25 days of total active service, with 49 days of lost time.

Pursuant to the Board's request, the FBI, Clarksburg, West Virginia, provided an investigative report which is attached at Exhibit C.

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AIR FORCE EVALUATION:

AFLSA/JAJM indicated that under 10 USC 1552(f), the AFBCMR’s ability to correct records related to courts-martial is limited.  Specifically, 10 USC 1552(f) permits the correction of a record to reflect actions taken by reviewing authorities under the UCMJ.  Additionally, it permits the correction of records related to action on the sentence of courts-martial for the purpose of clemency.  Apart from these two limited exceptions, the effect of 10 USC 1552(f) is that the AFBCMR is without authority to reverse, set aside, or otherwise expunge a court-martial conviction that occurred on or after 5 May 1950 (the effective date of the UCMJ).  Although the AFBCMR can upgrade the applicant’s discharge to an administrative discharge as a means of clemency, the upgrade would not achieve his desire to expunge his court-martial record.

As to the FBI record, AFLSA/JAJM stated it is their understanding that action can be taken by AFOSI to correct any discrepancies.  

A complete copy of the AFLSA/JAJM evaluation is at Exhibit D.

AFPC/DPPRS recommended denial indicating the applicant did not submit any new evidence or identify any errors or injustices that occurred in the discharge processing.  He also provided no facts warranting an upgrade in his discharge.

A complete copy of the AFPC/DPPRS evaluation is at Exhibit E.

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APPLICANT'S REVIEW OF AIR FORCE EVALUATION:

Copies of the Air Force evaluations were forwarded to applicant on 14 May 04 for review and response.  As of this date, no response has been received by this office (Exhibit F).

A copy of the FBI Report was forwarded to applicant on 9 Jun 04 for review and response.  Applicant returned the AFBCMR letter, but, as of this date, has not provided a response to the FBI report (Exhibit G).

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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.  We note that this Board is not empowered to set aside, reverse, or otherwise expunge the findings of guilty by a court-martial.  Rather, 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.  It is also not within the purview of the Board to seal or expunge an FBI record.  AFLSA/JAJM has indicated that the AFOSI may taken action to correct any discrepancies in the FBI record.  However, no discrepancies between the court-martial and FBI records were noted.  In addition, we find no evidence which indicates the applicant’s service characterization, which had its basis in his conviction by special court-martial and was a part of the sentence of the military court, was improper or that it exceeded the limitations set forth in the Uniform Code of Military Justice (UCMJ).  Notwithstanding the above, we note the applicant was discharged in 1964.  In view of the passage of time and the post-service documentation provided in support of his appeal, we believe the continued stigma of a bad conduct discharge is unduly harsh and no longer serves any useful purpose.  We do not believe an honorable discharge is warranted due to the limited documentation provided by the applicant regarding his activities since his discharge from the service.  However, we do believe upgrading the applicant’s discharge to general, based on clemency, would be appropriate.  Accordingly, we recommend the applicant’s bad conduct discharge be upgraded to general.  We would also like to remind the applicant about the application process for a Presidential pardon, which could be highly significant to prospective employers.  As indicated in the AFLSA/JAJM advisory opinion which he was provided, the applicant may apply for a Presidential pardon by writing to AFLSA/JAJR, 112 Luke Avenue, Room 343, Bolling AFB, DC 20332-8000, for the necessary forms and instructions.

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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, on 8 May 64, he was discharged with service characterized as general (under honorable conditions).

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The following members of the Board considered AFBCMR Docket Number BC-2004-00673 in Executive Session on 14 Jul 04, under the provisions of AFI 36-2603:

All members voted to correct the records, as recommended.  The following documentary evidence was considered:

     Exhibit A.  DD Form 149, dated 21 Feb 04, w/atchs.
     Exhibit B.  Applicant's Master Personnel Records.
     Exhibit C.  FBI Report.
     Exhibit D.  Letter, AFLSA/JAJM, dated 27 Apr 04.
     Exhibit E.  Letter, AFPC/DPPRS, dated 12 May 04.
     Exhibit F.  Letter, SAF/MRBR, dated 14 May 04.
     Exhibit G.  Letter, AFBCMR, dated 9 Jun 04.

AFBCMR BC-2004-00673

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 ,be corrected to show that, on 8 May 64, he was discharged with service characterized as general (under honorable conditions).