RECORD OF PROCEEDINGS
AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS

IN THE MATTER OF:	DOCKET NUMBER:  BC-2006-00337
		INDEX CODE:  105.00

	 	COUNSEL:  NONE

		HEARING DESIRED:  NO

MANDATORY CASE COMPLETION DATE:  6 AUG 07

_________________________________________________________________

APPLICANT REQUESTS THAT:

All documents referencing his 1965 court-martial be removed from his records.
	
_________________________________________________________________

APPLICANT CONTENDS THAT:

All charges pertaining to his 1965 court-martial were dismissed on 19 April 1966 in accordance with General Court-Martial Order Number 10 and all records concerning the court-martial were to be removed.

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

_________________________________________________________________

STATEMENT OF FACTS:

On 3 September 1963, the applicant enlisted in the Regular Air Force in the grade of airman basic for a period of four years.

On 26 May 1965 the applicant was convicted by a general court-martial (General Court-Martial Order No. 32) for violating Article 123, Uniform Code of Military Justice (UCMJ).  He did, at Langley Air Force Base, Virginia, on or about 16 December 1964, with intent to defraud, falsely alter a check by changing the amount of the payment from $38.19 to $88.19.  He was sentenced to a reduction in grade from airman third class to airman basic, confinement at hard labor for one year, and a bad conduct discharge.  The sentence was adjudged on 2 April 1965.

The General Court-Martial Post Trial Clemency Report indicates the Acting and Staff Judge Advocate found the applicant was a proper candidate for rehabilitation, and strongly recommended the applicant be assigned to the 3320th Retraining Group, Amarillo Air Force Base, Texas, and thereafter retained in the Air Force.

The rebuttal to the Post Trial Clemency Report, dated 14 April 1965, indicates the applicant desired rehabilitation and wanted to complete his tour in the Air Force in an honorable manner.

General Court Martial Order Number 110, dated 30 September 1965, indicates so much of the sentence to confinement as was in excess of confinement at hard labor for 5 months and 28 days, and so much of the sentence to forfeitures as was in excess of forfeiture of all pay and allowances for four months and four days, promulgated in General Court-Martial Order No. 32, dated 26 May 1965, are remitted.  Execution of the bad conduct discharge was suspended until 30 March 1966, at which time, unless the suspension was sooner vacated, the unexecuted portion of the sentence would have been remitted without further action.

General Court-Martial Order Number 10, dated 19 April 1966, indicates the charges were dismissed and the sentence was set aside.  All rights, privileges, and property of which the accused had been deprived by virtue of the findings of guilty and the sentence so set aside was restored.

On 1 September 1967, the applicant was honorably discharged in the grade of airman first class under the provisions of AFM 39-10 - Convenience of the Government.  He served 3 years, 11 months, and 29 days of total active duty service and 2 months and 21 days of foreign and/or sea service.

_________________________________________________________________

AIR FORCE EVALUATION:

AFPC/DPF indicates a review of the applicant’s service record reflects that all charges associated with the referenced court-martial were, in fact, dismissed.  AFI 36-2608, Military Personnel Records System, requires all court-martial orders be filed in the Unit Personnel Record Group as well as the Master Personnel Record Group, including those setting aside a case entirely.  Based on this requirement and the attached input from HQ AFPC/JA, they recommend denial of the applicant’s request.

The evaluation, with attachment from AFPC/JA, is at Exhibit C.

AFPC/JA’s memorandum dated 20 March 2006, indicates AFI 51-2101, Administration of Military Justice, paragraph 10.1.9, is in the current directive governing the distribution of general and special court-martial orders to Military Personnel Flights (MPFs) maintaining Field Record Groups (FRGp) and to the Air Force Personnel Center (AFPC) for Master Personnel Record Groups (MPeRGp).  This regulation is, however, silent on the issue of whether transmitting these documents also requires filing them in the FRGp or MPeRGp.  Instead, AFI 36-2608, Military Personnel Records System, discusses the requirements for filing court-martial orders in the various records groups.  AFI 36-2608, Table A2.1, Item 347 expressly mandates court-martial orders “setting aside a case entirely” be placed in both the FRGp and MPeRGp.  This rule clearly differentiates between “court-martial orders containing or reflecting approved findings of guilt”--such as the applicant’s--and cases involving a complete acquittal at a trial.  As the latter does not fit within Item 347’s various categories--or any other rule within AFI 36-3208 for that matter--it is not placed in either of the record groups.

When the applicant separated from the Air Force upon completion of his term of service, his MPeRGp and other permanent personnel records were combined at AFPC and then forwarded to the National Personnel Records Center (NPRC).  See AFI 36-3208, paragraph 2.12.2 and Table A2.1, Item 347.  In his request, he asked if the numerous court-martial orders and appellate decisions documenting the applicant’s case between May 1965 and April 1967 be removed from these records now maintained at NPRC.  After reviewing the applicable regulations, these court-martial records must remain in his MPerRGp to provide a complete history of this case.

_________________________________________________________________

APPLICANT'S REVIEW OF AIR FORCE EVALUATION:

The applicant reviewed the evaluation and indicated when the court-martial charge was dismissed - he was informed by his lawyer and the staff judge that all records of his court-martial would be removed from his record.  He never checked on removal of records before he was discharged and assumed it was done.  He recently found out about it when he purchased new firearms for collection and hunting.  Approximately two weeks after purchasing the guns - the ATF informed him that a review of his military records reflect a felony conviction.  Although the charge was dismissed - it remained in his record leaving him unable to own firearms.  All firearms in his possession had to be turned in to a gun dealer until this matter was resolved.  He further indicates that he has been hunting and collecting guns since he was 16 years old and always held a valid gun permit.  This incident happened 41 years ago - he is now 61 years old, loves to hunt and target shoot with family and friends as he has done all of his adult life.

The applicant’s response, with attachments, is at Exhibit E.

_________________________________________________________________

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.	Sufficient relevant evidence has been presented to demonstrate the existence of an error or injustice.  The applicant contends that all charges pertaining to his 1965 court-martial were dismissed on 19 April 1966 in accordance with General Court-Martial Order Number 10 and all records concerning the court-martial were to be removed.  In this respect, we note the applicant was convicted by a general court-martial for violating Article 123, UCMJ by falsely altering a check.  He was sentenced to a reduction in grade to airman basic, confinement at hard labor for one year, and a bad conduct discharge.  On 19 April 1966, General Court-Martial Order No. 10 was signed by HQ 12 AF/CC dismissing the charges and setting aside the adjudged sentence.  In view of the above finding, the Board is of the opinion that since the charges brought against the applicant were dismissed and the sentence was set aside, it would be an injustice to the applicant to continue to suffer the effects of the negative documentation in his records pertaining solely to this issue.  Therefore, we recommend the applicant’s records be corrected to the extent indicated below.

_________________________________________________________________

THE BOARD RECOMMENDS THAT:

The pertinent military records of the Department of the Air Force relating to APPLICANT, be corrected to show that any and all documents and references thereto pertaining to his misconduct under General Court-Martial Order Number 32, Article 123 Uniform Code of Military Justice, dated 26 May 1965, be declared void and removed from his records.

_________________________________________________________________

The following members of the Board considered AFBCMR Docket Number BC-2006-00337 in Executive Session on 23 May 2006, 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 30 January 2006, w/atchs.
   Exhibit B.  Applicant's Master Personnel Records.
   Exhibit C.  Letter, AFPC/DPF, dated 27 March 2006, w/atch.
   Exhibit D.  Letter, SAF/MRBR, dated 31 March 2006, w/atch.
   Exhibit E.  Letter, Applicant, dated 22 April 2006.

				

AFBCMR BC-2006-00337

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 APPLICANT be corrected to show that any and all documents and references thereto pertaining to his misconduct under General Court-Martial Order Number 32, Article 123 Uniform Code of Military Justice, dated 26 May 1965, be and hereby are, declared void and removed from his records.