RECORD OF PROCEEDINGS
AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS

IN THE MATTER OF:				DOCKET NUMBER:  BC-2007-01030
								INDEX CODE:  106.00
	XXXXXXXXXXXXXXXXXX			COUNSEL:  NONE

								HEARING DESIRED:  NO

MANDATORY CASE COMPLETION DATE:  2 October 2008

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APPLICANT REQUESTS THAT:

His under other than honorable conditions (UOTHC) discharge be upgraded to under honorable conditions (general).

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APPLICANT CONTENDS THAT:

The presumption of regularity that might normally be used to assume that the service acted correctly in characterizing his service does not apply in his case.

He had combat service, performing perimeter duty at DaNang AB, Vietnam, as well as securing TDY locations at Quay Phu Bai and Chu Lai for base communication trailers in Vietnam.  There were other acts of merit, including volunteering for numerous TDY assignments in Vietnam and Thailand.  He received his squadron’s Medal of Valor.

His average conduct and efficiency ratings/behavior marks were pretty good, he served his country to the best of his ability as a minor or teen, and he has been a good citizen after his discharge.  

When he got back from Vietnam, he couldn’t adjust to state-side duty.  He was aware there was a change in his attitude and emotions, but couldn’t identify the feelings at the time.  PTSD and its symptoms were unheard of back then.  He self-medicated with alcohol to bring some relief, but it only fueled his alcoholism.  He knows and admits he is an alcoholic, and has learned that recovery begins only when he surrenders to God and the 12-step program.

He voluntarily enrolled in the Joseph House for homeless and disabled veterans, and completed the necessary CDC treatment program.  For the last 2.5 years, he has been living in transitional housing under the guidelines of the Joseph House.  He is learning to maintain a clean and sober lifestyle by clinging to spiritual principles.  He is an active member of A.A. and N.A., and mentors other veterans in the treatment phase at Joseph House.

Until recently, he was unaware relief was available through the AFBCMR.

In support of his appeal, he has submitted copies of an undated personal statement, a letter signed by an HRC Mental Health Counselor at the Health Resource Center of Cincinnati, Inc., dated 8 February 2007, a letter from the Joseph House, dated 9 February 2007, and his DD Form 214, dated 19 November 1974.

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

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STATEMENT OF FACTS:

Applicant enlisted in the Regular Air Force on 16 April 1970 and served as a communications center specialist. 

He received non-judicial punishment on 4 September 1971 for, on or about 31 August 1971, failing to go at the time prescribed to his appointed place of duty.  He received a suspended reduction to the grade of airman, forfeiture of $25.00, and restriction to U-Tapao Airfield, Thailand, for 45 days.

He received non-judicial punishment on 14 January 1972 for, on or about 4 January 1972 and on or about 11 January 1972, failing to go at the time prescribed to his appointed place of duty.  After mitigation, he received a reduction to the grade of airman and forfeiture of $140.00 for two months, both suspended until 14 March 1972.

He received non-judicial punishment on 12 July 1973 for, on or about 1 June 1973, failing to go at the time prescribed to his appointed place of duty.  He received a reduction to the grade of airman first class and forfeiture of $190.00 for one month.

On 28 March 1974, he pled guilty and was sentenced by a general court-martial for, on or about 5 February 1974, taking indecent liberties with two females under sixteen years of age, and for, on or about 26 February 1974, wrongfully communicating a threat to injure a commissioned officer.  He was sentenced to a bad conduct discharge (BCD), seven months confinement at hard labor at the United States Disciplinary Barracks, Ft. Leavenworth, KS, forfeiture of $50.00 per month for seven months, and a reduction to the grade of airman basic.  His request for clemency was denied by the Army and Air Force Clemency and Parole Board as a result of his negative attitude, drug and alcohol abuse, and extensive record of misconduct.

Upon completion of the appellate review, General Court Martial Order #179, HQ Lowry Technical Training Center, ordered his BCD executed on 30 September 1974.  However, applicant was subsequently discharged on 19 November 1974, and his DD Form 214 indicates a UOTHC characterization.  He completed 3 years, 10 months, and 22 days of net active service.

A resume of applicant's performance reports follows:  

	PERIOD ENDING 				OVERALL EVALUATION

	26 Feb 1974         	 		6
	 1 Mar 1973         			8
	26 Feb 1972     				8
	 5 Oct 1971         			7
	28 Jun 1971       				8
	28 Dec 1970     				8

His records indicate he is entitled to wear the National Defense Service Medal.  Although not reflected on his DD Form 214, his AF Form 7, Airman Military Record, indicates he was awarded the Vietnam Service Medal with one Bronze Service Star, and the Republic of Vietnam Campaign Medal.  His records indicate a total of 1 year, 11 months, and 26 days of foreign and/or South East Asia service in Vietnam and Thailand.

Pursuant to the Board’s request, the Federal Bureau of Investigation (FBI), Clarksburg, WV, provided a copy of an Investigation Report which is at Exhibit C.

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AIR FORCE EVALUATION:

AFLOA/JAJM recommends denial since the applicant submits no evidence in support of his application and the request is untimely   Ordinarily, applicants must file an application within three years after the alleged error or injustice was discovered or, with due diligence, should have been discovered.  His request is dated more than 32 years after his sentence and discharge, and he alleges he was unaware relief was available through the BCMR until recently.  However, while untimeliness may be excused in the interests of justice, he presents no basis to do so.

His records indicate he engaged in several other incidents of misconduct for which he was apparently never punished.  On the day of his court-martial sentencing, he escaped from the Eglin AFB confinement facility while performing clean up duties, and remained absent for three days until he was arrested by civilian and military authorities.  Then, as a military policeman was escorting him from the civilian police station, he kicked the policeman in the ankle.  While the military police were putting him in the confinement facility at Ft. McPherson, GA, he complained of pain in his left arm, and as he was being taken to the hospital, he attempted to kick the military policeman in the groin, missing him and kicking him in the thigh instead.  Similarly, his wife sought medical treatment at a hospital for a broken jaw which she stated applicant had caused by kicking her in the face.  His personnel file also indicates a history of financial irresponsibility, indecent exposure, and involvement with illegal drugs.

The application is also without merit.  Title 10, United States Code, limits the Board’s ability to correct records relating to courts-martial to correction of a record to reflect actions taken by reviewing authorities under the UCMJ, and correction of records related to action on the sentence of a courts-martial for the purpose of clemency.  Aside from these two limited exceptions, the Board is without authority to reverse, set aside, or otherwise expunge a court-martial conviction that occurred on or after 5 May 1950.

The applicant does not contend that any specific actions have been taken by reviewing authorities that require correction of his record; thus, any decision regarding his discharge status must be done as a matter of clemency.  He has set forth no basis for clemency, and his conduct during his brief period of service was atrocious.  While he may be applauded for taking steps in the last few years to address his personal problems, nothing he has set forth provides a basis for clemency, especially given the untimeliness of the request.  Taking indecent liberties with 11 and 12 year old girls are serious crimes, as is threatening the safety of an officer.  His crimes are magnified by the fact he was, at one point, a non-commissioned officer, and has been nothing but one disciplinary problem after another.  

Applicant has presented no valid explanation for his untimeliness, no evidence of error or injustice, and no support for his request for clemency.  In light of the fact that he benefited from the administrative error on his DD Form 214, his extensive record of misconduct, his lack of evidence to justify granting the relief requested, and the absence of any error or injustice, they recommend the Board deny his request as untimely and unsupported.

The AFLOA/JAJM evaluation is at Exhibit D.

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APPLICANT'S REVIEW OF AIR FORCE EVALUATION:

A complete copy of the evaluation was forwarded to the applicant on 1 June 2007, for review and comment within 30 days.  Additionally, applicant was given a chance on 10 July 2007, to provide information within 30 days pertaining to his activities since leaving the service.  His response was received on 6 September 2007, provided to the Board, and is at Exhibit F.

A copy of the FBI, Clarksburg, WV, investigation was forwarded to the applicant on 10 July 2007 for review and comment within 30 days.  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.  We note that this Board is without authority to reverse, set aside, or otherwise expunge a court-martial conviction.  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.  We also find no evidence which indicates that 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 or that it exceeded the limitations set forth in the Uniform Code of Military Justice (UCMJ).  We have considered applicant's overall quality of service, the general court-martial conviction which precipitated the discharge, and the seriousness of the offenses for which convicted, taking indecent liberties with two females under sixteen years of age and wrongfully communicating a threat to injure a commissioned officer.  His records indicate that prior to his court martial conviction, he engaged in numerous other incidents of misconduct, and he has already benefited from an administrative error on his DD Form 214 which reflects his service characterization as UOTHC rather than the BCD ordered by his court-martial conviction.  While he may be applauded for taking steps in the last few years to address his personal problems, nothing he has set forth provides a basis for clemency.  Based on the evidence of record, we cannot conclude that clemency is warranted.

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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 Docket Number BC-2007-01030 in Executive Session on 23 August 2007, under the provisions of AFI 36-2603:

				XXXXXXXXXX, Panel Chair
				XXXXXXXXXX, Member
				XXXXXXXXXX, Member

The following documentary evidence was considered:

    Exhibit A.  DD Form 149, dated 22 Jan 07, w/atchs.
    Exhibit B.  Applicant's Master Personnel Records.
    Exhibit C.  FBI REPORT, dated 28 Jun 07.
    Exhibit D.  Letter, AFLOA/JAJM, dated 18 May 07.
    Exhibit E.  Letter, SAF/MRBR, dated 1 Jun 07.
    Exhibit F.  Letter, AFBCMR, dated 10 Jul 07, w/atchs.

                                   XXXXXXXXXX
                                   Panel Chair