RECORD OF PROCEEDINGS
AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS

IN THE MATTER OF:	DOCKET NUMBER:  BC-2004-00810
					INDEX CODE:  110.00

					COUNSEL: 

					HEARING DESIRED: No

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APPLICANT REQUESTS THAT:

His bad conduct discharge (BCD) be upgraded to an honorable or general discharge.
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APPLICANT CONTENDS THAT:

The applicant did not provide any statements regarding his discharge.

Applicant's complete submission is attached at Exhibit A.

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STATEMENT OF FACTS:

Applicant enlisted in the Regular Air Force on 30 September 1954 for a period of four years.

On 23 May 1957, the applicant received an Article 15 for being disrespectful in his language to a non-commissioned officer.  He was reduced to the grade airman third class.

On 30 August 1957, the applicant was tried by Special Court-Martial for assaulting four Okinawans and resisting apprehension.  For this misconduct, his punishment consisted of confinement at hard labor for 30 days and forfeiture of $35.00 a month for three months.

The applicant was arraigned and tried by general court-martial on 27 December 1957 for the following:  

	Charge I, in violation of Article 128, Uniform Code of Military Justice (UCMJ), the applicant, on or about 1 December 1957, assaulted a taxi driver by pointing a carbine (short barreled firearm) at his stomach, ordered him to drive off base and if he stopped, he would shoot him.

	Charge II, Specification I, the applicant, on or 1 December 1957, stole 60 Class B Yen, of a value of $.50.

	Charge II, Specification II, the applicant, on or about 1 December 1957, did wrongfully appropriate a automobile, of a value of more than $50.00.

He was found guilty on all charges and specifications and sentenced to a dishonorable discharge, forfeiture of all pay and allowance and confinement at hard labor for one year.  The sentenced was adjudged on 30 January 1958.

On 6 March 1958, the convening authority approved only so much of the sentence as provided for the dishonorable discharge, forfeiture of $63.00 per month for one year and confinement at hard labor for one year, with suspended execution of the dishonorable discharge until the applicant’s release from confinement or until the completion of the appellate review whichever was the later date.

On 25 April 1958, the Board of Review affirmed only so much of the approved sentence as provided for a BCD (suspended), confinement at hard labor for one year and forfeiture $39.00 per month for one year.

On 4 October 1958, the applicant, while serving in the grade of airman third class, was discharged with a BCD.  He served 4 years, 9 months and 20 days of active duty service.

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

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AIR FORCE EVALUATION:

AFLSA/JAJM states an application must be filed within three years after the error or injustice was discovered, or, with due diligence, should have been discovered.  An application may be denied on the basis of being untimely, however, an untimely filing may be excused in the interest of justice.

Under 10 USC Section 1552(f), which amended the basic correction board legislation, the AFBCMR’s ability to correct records related to courts-martial is limited.  Specifically, Section 1552(f)(1) permits the correction of a record to reflect actions taken by reviewing authorities under the Uniform Code of Military Justice (UCMJ).  Additionally, Section 1552(f)(2) 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 Section 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 UMCJ).

They further state there is no legal basis for upgrading the applicant’s discharge.  His sentence was within the prescribed limits and was a matter within the discretion of the court-martial and could have been mitigated by the convening authority or during the course of the appellate review.  The applicant was afforded all rights guaranteed by statute and regulation.  He has provided no compelling basis based on the circumstances of his case that would warrant a change in his discharge.

AFLSA/JAJM further states that while clemency is an option, there is no reason for the Board to exercise clemency in the applicant’s case.  The applicant did not serve honorably during this enlistment.  The military judge, convening authority and the appellate court believed a BCD appropriately characterized the applicant’s military service and crimes.  Although the applicant’s adjudged sentence included a dishonorable discharge and total forfeitures, his punishment was mitigated with an upgraded discharged--a BCD and forfeiture of $39.00 pay per month for 12 months.  So, the applicant was granted some clemency.  The applicant has not presented sufficient evidence to warrant upgrading his discharge and they recommend the requested relief be denied.

A complete copy of the evaluation is attached at Exhibit D.

AFPC/DPPRS states the applicant did not provide any new evidence or identify any errors or injustices that occurred in the processing of his discharge.  They believe the applicant's discharge was consistent with the procedural and substantive requirements of the discharge regulation; and the discharge was within the sound discretion of the discharge authority.  DPPRS recommends denying the requested relief.  

A complete copy of the evaluation is attached at Exhibit E.

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APPLICANT'S REVIEW OF AIR FORCE EVALUATION:

The applicant reviewed the Air Force evaluation and states he was young and experiencing personal problems.  He felt he had no one to talk to about his problems and turned to drinking, thinking it would help his situation.

The applicant’s complete response, with attachments, is attached 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 of timely file.

3.	Insufficient relevant evidence has been presented to demonstrate the existence of probable error or injustice.  No evidence has been presented to indicate the applicant’s service characterization, which had its basis in his conviction by general court-martial and was a part of the sentence of the military court, was improper.  We note the Board of Review afforded the applicant some measure of clemency by approving a BCD rather than a dishonorable discharge and forfeitures of $39.00 monthly for one year rather than forfeitures of all pay and allowances for one year.  Furthermore, because of the short duration of the applicant’s service and the serious nature of the offenses committed, we do not find upgrading the applicant’s BCD based on clemency is appropriate in this case at this time.  In view of the foregoing, we agree with the opinion prepared by AFLSA/JAJM and adopt their rationale as the basis for our decision the applicant has failed to sustain his burden of establishing he has suffered either an error or an injustice.  We reviewed the post-service documentation provided by the applicant in support of his appeal.  However, due to its limited nature, we do not find the documentation sufficient to warrant favorable action based on clemency at this time.  In view of the above, we conclude no basis exists to recommend favorable action on the applicant’s request that his bad conduct discharge be upgraded.

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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 this application in Executive Session on 4 August 2004, under the provisions of AFI 36-2603:

The following documentary evidence relating to AFBCMR Docket Number BC-2004-00810 was considered:

   Exhibit A.  DD Form 149, dated 5 Mar 04.
   Exhibit B.  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 26 May 04, w/atch.
   Exhibit H.  Letter, Applicant’s Response, undated, w/atchs.
   Exhibit I.  Letter, Applicant, dated 21 Jun 04.
   Exhibit J.  Letter, AFBCMR, dated 23 Jun 04, w/atchs.
   Exhibit K.  Letter, AFBCMR, dated 23 Jun 04, w/atch.