RECORD OF PROCEEDINGS
AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS

IN THE MATTER OF:	DOCKET NUMBER: BC-2007-02552
		INDEX CODE:  110.02
	 	COUNSEL:  NONE
		HEARING DESIRED:  NOT INDICATED

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APPLICANT REQUESTS THAT:

His bad conduct discharge be changed to a general (under honorable conditions) discharge.

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APPLICANT CONTENDS THAT:

His discharge was due to constantly being absent without leave (AWOL).

He served honorably in the U.S. Navy from 1943 to 1947.

In support of his request, the applicant provided a copy of his Naval discharge, a Washington Access to Criminal History check, character reference letters, and a petition signed by individuals who know him and from his community.

The applicant's complete submission, with attachments, is at Exhibit A.

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STATEMENT OF FACTS:

The applicant entered the active duty Air Force on 1 Feb 52.

On or about 3 Jun 52 to on or about 5 Feb 53, the applicant went AWOL. 

On 27 Mar 53, he was tried and convicted by Special Court-Martial.  He was sentenced to a bad conduct discharge, confinement at hard labor for six months, and forfeiture of $40 per month for six months.  On 4 May 53, the convening authority suspended the bad conduct discharge until the applicant’s release from confinement or until completion of appellate review, whichever was later. 

On 15 May 53, the applicant and another inmate escaped from confinement.  The applicant surrendered to military authorities on 16 Jul 53.

Per Order Number 89, dated 27 Jul 53, the unexecuted portion of the applicant’s sentence as amended by Special Court Martial Order Number 50, as it related to his confinement at hard labor and forfeiture of pay, was remitted effective 3 Aug 53.

On 19 Aug 53, the unexecuted portion of the sentence was remitted with an effective date of 21 Aug 53.

The applicant was discharged on 21 Aug 53 with a bad conduct discharge.

Pursuant to the Board's request, the Federal Bureau of Investigation (FBI), Clarksburg, West Virginia, was unable to identify with an arrest record pertaining to the applicant. 

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AIR FORCE EVALUATION:

AFLOA/JAJM recommends denial of the applicant’s request.  The application is untimely and the applicant’s contentions are without merit.

The applicant does not claim innocence or otherwise contest the merits of his trial.  He offers no explanation for his original AWOL offense or for his subsequent escape from custody.  Rather, he submits a number of character references and other documents from family, friends, colleagues, employers, and community leaders which support his contention that in his post-discharge civilian life he has become a respected, caring and giving elder member of his community.  

Ordinarily, an applicant must file an application within three years after the alleged error or injustice was discovered or, with due diligence, should have been discovered.  The Board may deny an application because it is untimely, although an untimely filing may be excused in the interest of justice.  Over 54 years have passed since the applicant’s trial.  The applicant does not provide any reason to justify excusal of his untimely application in the interest of justice, and he provides no explanation for waiting more than 50 years after his court-martial to file his application.

Under Title 10, U.S.C., Section 1552(f), which amended the basic corrections board legislation, the Board’s ability to correct records related to courts-martial, is limited.  Specifically, Section 1552(f)(1) permits the correction of record to reflect actions taken by a reviewing authority 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 Board is without authority to reverse, set aside, or otherwise expunge a court-martial conviction that occurred on or after 5 May 50 (the effective date of the UCMJ).

The applicant has identified no error or injustice related to his prosecution or the sentence.  The applicant’s sentence was well within the legal limits and was an appropriate punishment for the offenses committed.  As noted above, the applicant’s original bad conduct discharge was suspended.  However, instead of embracing the opportunity offered to redeem and rehabilitate himself, he chose to compound his misconduct by escaping from custody.  

Clearly, the applicant’s honorable WWII-era Navy service and commendable post-discharge community involvement, do not negate or excuse the serious and repeated nature of his bad conduct during his Korean War-era Air Force service.  A bad conduct discharge was then and remains today an appropriate sentence that properly characterizes that period of service.  Accordingly, while clemency may be granted under 10 U.S.C., Section 1552(f)(2), it is not warranted in this case.

The AFLOA/JAJM complete evaluation is at Exhibit C.
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APPLICANT'S REVIEW OF AIR FORCE EVALUATION:

A copy of the Air Force evaluation was forwarded to the applicant on 12 Oct 07 for review and comment within 30 days.  As of this date, this office has not received a response.

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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 took notice of the applicant's complete submission in judging the merits of the case; however, we agree with the opinion and recommendation of the Air Force office of primary responsibility and adopt its rationale as the basis for our conclusion that the applicant has not been the victim of an error or injustice.  Therefore, in the absence of evidence to the contrary, we find no compelling basis to recommend granting the relief sought in this application.
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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-2007-02552 in Executive Session on 29 November 2007, under the provisions of AFI 36-2603:

The following documentary evidence was considered:

    Exhibit A.  DD Form 149, w/atchs, dated 1 Aug 07.
    Exhibit B.  Applicant's Master Personnel Records.
    Exhibit C.  AFLOA/JAJM Memorandum, dated 11 Sep 07.
    Exhibit D.  SAF/MRBR Letter, dated 12 Oct 07.