RECORD OF PROCEEDINGS
         AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS

IN THE MATTER OF:	DOCKET NUMBER:  BC-2005-00303
		INDEX CODE:  A68.00

		COUNSEL:  NONE

		HEARING DESIRED:  NO

MANDATORY CASE COMPLETION DATE:  29 Jul 06

_________________________________________________________________

APPLICANT REQUESTS THAT:

The applicant, the son of the former servicemember who appears to be acting on behalf of his mother, requests that his father’s bad conduct discharge (BCD) be upgraded to honorable; the narrative reason for separation be changed to alcohol dependent; and, that he be awarded the back pay and benefits the former servicemember lost as a consequence of the BCD.

_________________________________________________________________

APPLICANT CONTENDS THAT:

The discharge was inequitable because it was based on an isolated incident in 12 years of service.  The former servicemember’s prior service records were not considered during his court-martial.  His confinement records were exceptional.  His career was destroyed by his commanding officer, with extreme prejudice.  He was disgraced and dishonored, and his family has suffered tremendous anguish and pain for 46 years.

Most veterans that were given BCDs and dishonorable discharges had service-connected disabilities.  In 1959 the term post-traumatic stress disorder (PTSD) was not used.  Tremendous progress and strides have been made by the Air Force regarding rehabilitative programs, including professional counseling involving PTSD, alcohol and drug abuse, marriage counseling, financial management, and retraining.  These are all now treatable and manageable in 2005.  If the former servicemember had been given clemency and rehabilitative cooperation, he would have retired from the Air Force.

In support of his appeal, the applicant provided personal statements, supportive statements, extracts from the former servicemember’s records, and other documents associated with the matter under review.

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

_________________________________________________________________

STATEMENT OF FACTS:

The former servicemember’s records were destroyed by fire in 1973.  The available records indicate that on 17 Jun 59, he was convicted by general court-martial of making and uttering four worthless checks, absence without leave (AWOL) for twenty-four days, and two charges of larceny by check.  On 21 Dec 59, he was discharged and furnished a BCD.

The remaining relevant facts pertaining to this application are contained in the letter prepared by the appropriate office of the Air Force.

The Federal Bureau of Investigation, Clarksburg, West Virginia, indicated that, on the basis of data furnished, they are unable to locate an arrest record (Exhibit C).

_________________________________________________________________

AIR FORCE EVALUATION:

AFLSA/JAJM recommended denial noting that at a general court-martial on 17 Jun 59, the applicant's father was tried and convicted of making and uttering four worthless checks in violation of Article 134, UCMJ; absence without leave for twenty-four days in violation of Article 86, UCMJ; and two charges of larceny by check in violation of Article 121, UCMJ.  He was sentenced to a BCD, total forfeitures, and confinement at hard labor for one year and reduction to airman basic.  The convening authority approved the sentence as adjudged.  On 6 Nov 59, the Board of Review (the predecessor to the Air Force Court of Criminal Appeals) affirmed the findings and sentence.  However, the Board recommended clemency consideration.  The Board stated, "In view of almost seven months pretrial confinement and half of confinement imposed having been served, the Board recommends clemency consideration to full restoration of duty with provision for automatic remission of bad conduct discharge."  The Board made this recommendation despite the interviewing judge advocate, staff judge advocate (SJA) and his immediate commander's recommendation against clemency.  On 12 Nov 59, The Judge Advocate General (TJAG) concurred, but indicated his concern as to what disposition should be made regarding the applicant's father's case.  The Director of Military Justice noted TJAG's concern in the transmittal letter and stated the applicant's father had done outstanding work in the past and the consensus of opinion of the corrections personnel was that the applicant's father should be restored to duty in a probationary status.  TJAG indicated the applicant's father's commander should consider TJAG's concern and the Board of Review's recommendation when conducting the commander's clemency review of Pacific area returnees.  On 17 Nov 59, having been served notice of that decision, the applicant's father stated he did not wish to petition the United States Court of Military Appeals for a grant of review.  Though the commander indicated his intent to grant clemency, the applicant's father's concern about his family's situation preempted his desire to continue service.  The application package highlights a "Clemency Report Re: XXXXXXXXXXXXXXXXXX XXXXXXXXXXXXXXXXXX," dated 29 June 1959, from the Base Confinement Facility of the 601st  Air Police squadron to the Staff Judge Advocate, which advocates for the applicant's father's return to service for good behavior.  The report notes the applicant's father was interviewed and expressed that his sentence was just and fair under the circumstances.  In another document, a rebuttal to his immediate commander's negative clemency evaluation, the applicant's father acknowledged his wrongdoing, and limited his rebuttal to the commander's description of his character and qualifications for further honorable service in the Air Force.  In a letter, dated 22 Dec 59, from the 4th Air Force, the SJA stated the applicant's father had arrived to the confinement facility at Hamilton Air Force Base California, in Nov 59, and was specifically being considered for restoration and clemency.  However, the applicant's father's financial and personal affairs were not in order, and his wife was excessively stressed and seeking assistance from various congressional and government officials.  Based on his personal circumstances, though he stated a desire to continue to serve, the applicant's father requested an expedited BCD and a remitting of his confinement.  His request was granted when the Commander, 4th Air Force, approved his BCD on 16 Dec 59, remitting all unexecuted confinement past 21 Dec 59. 

AFLSA/JAJM indicated that under 10 U.S.C. §1552(f), which amended the basic corrections 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 UCMJ).

The applicant is not contending that a specific error has occurred [in his father’s records] which requires the correction of the court-martial record and there is no indication in the record of such an error. Thus, any decision by the Board regarding the applicant's father’s discharge status would be done as a matter of clemency.

The applicant is contending that the mitigating circumstances were not properly taken into consideration by the court in 1959, and that since that time, the law and the military's approach to mental health and substance abuse issues have changed.  As a consequence, his father's case should be reviewed based on today's standards.

However, the Air Force did consider the applicant's father’ personal and mitigating circumstances and were poised to remit the BCD and return the applicant’s father to duty.  The former servicemember declined to return to duty based on the health of his wife and her ability to take care of their three children.

AFLSA/JAJM stated they found no error or injustice in this case. But for the former servicemember’s desire to separate, the evidence indicated he would likely have returned to active duty and likely have completed his career.  Under these circumstances they do not recommend granting the application for error or injustice.  Clemency is within the Board's discretion and based on the extensive information contained in the file of the intent to remit the BCD and return him to duty, upgrade of the applicant's discharge to a general discharge under honorable conditions may be warranted. However, there is no legal justification for awarding pay and benefits as the applicant’s father chose not to continue to serve.

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

_________________________________________________________________

APPLICANT'S REVIEW OF AIR FORCE EVALUATION:

The former servicemember’s spouse provided a response indicating that her husband led a productive life after his discharge, and that clemency is warranted based on his post-service citizenship.  Her husband wanted to serve but was not given the opportunity to serve.  Therefore, it is legally and morally justified to award pay and benefits to her (Exhibit F).

The applicant provided a subsequent response and additional documentary evidence for the Board’s consideration, which is attached at Exhibit H.

The former servicemember’s spouse provided another response, which is attached at Exhibit I.

_________________________________________________________________

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.  We note that this Board is without authority to reverse, set aside, or otherwise expunge a court-martial conviction occurring on or after 5 May 1950.  Rather, 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, other than the applicant’s unsubstantiated allegations, which would lead us to believe that a change to the actions of any of the reviewing officials is warranted.  We also find no evidence which indicates the former servicemember’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 or that it exceeded the limitations set forth in the UCMJ.  In view of the foregoing, we agree with the opinion prepared by AFLSA/JAJM and adopt its rationale as the basis for our decision that the applicant has failed to sustain his burden of establishing the former servicemember suffered either an error or an injustice.  Accordingly, we find no compelling basis to recommend favorable consideration on the applicant’s request the former servicemember’s narrative reason for separation be changed, and he receive back pay and benefits lost as a consequence of the BCD.

4.  Notwithstanding the above, we did note the former servicemember was discharged in 1959, and that prior to his discharge, there was an apparent intent to remit his BCD and return him to duty.  Furthermore, it appears he made a successful transition to civilian life.  Therefore, we believe the continued stigmatization of the BCD would be unduly harsh and serves no purpose.  We do not believe an honorable discharge is warranted due to the limited documentation provided by the applicant regarding the former servicemember’s activities since his discharge from the service.  However, in view of the foregoing, we are of the opinion that upgrading the former servicemember’s discharge to general, based on clemency, would be appropriate.  Accordingly, we recommend the former servicemember’s BCD be upgraded to general.

_________________________________________________________________

THE BOARD RECOMMENDS THAT:

The pertinent military records of the Department of the Air Force relating to the FORMER SERVICEMEMBER, be corrected to show that that on 21 Dec 59, he was discharged with service characterized as general (under honorable conditions).

_________________________________________________________________

The following members of the Board considered AFBCMR Docket Number BC-2005-00303 in Executive Session on 26 Jul 05, under the provisions of AFI 36-2603:

		 , Panel Chair
		 , Member
		 , Member

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

     Exhibit A.  DD Form 149, dated 1 Feb 05, w/atchs.
     Exhibit B.  Applicant's Master Personnel Records.
     Exhibit C.  Negative FBI Report.
     Exhibit D.  Letter, AFLSA/JAJM, dated 13 Apr 05.
     Exhibit E.  Letter, SAF/MRBR, dated 15 Apr 05.
     Exhibit F.  Letter from former servicemember’s spouse,
                 dated 3 May 05.
     Exhibit G.  Letter, AFBCMR, dated 10 May 05.
     Exhibit H.  Letter, applicant, dated 16 May 05, w/atchs.
     Exhibit I.  Letter from former servicemember’s spouse,
                 dated 17 May 05.

 
                                   Panel Chair

AFBCMR BC-2005-00303

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 21 Dec 59, he was discharged with service characterized as general (under honorable conditions).

 
                                                                           Director
                                                                           Air Force Review Boards Agency