RECORD OF PROCEEDINGS AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS IN THE MATTER OF: DOCKET NUMBER: BC-2010-02381 COUNSEL: NONE HEARING DESIRED: NO _________________________________________________________________ APPLICANT REQUESTS THAT: His bad conduct discharge (BCD) be upgraded to general (under honorable conditions). _________________________________________________________________ APPLICANT CONTENDS THAT: The type of discharge he received was unjust. The reason he went absent without leave (AWOL) was due to his responsibility to his wife and new born daughter. His wife had no support system to assist her during the birth of his daughter. She was alone and unable to cope with the new level of commitment required for motherhood. He felt he had no choice but to choose the well being of his wife and daughter. After 54 years, he regrets the consequences of his decision. He is now 81 years old and is at the end of his life; however, he enjoyed his 8 years of active duty. The applicant's complete submission is at Exhibit A. _________________________________________________________________ STATEMENT OF FACTS: The applicant enlisted in the Air Force on 2 April 1948 and was progressively promoted to the rank of staff sergeant. On 9 July 1955, he absented himself from his unit without authority and remained absent without authority until he was apprehended by an FBI agent on 9 December 1955. On 22 December 1955, he was tried at a special court-martial, at March Air Force Base, California. He was charged with being AWOL, in violation of Article 86, Uniform Code of Military Justice (UCMJ). He pled guilty to the charge and was sentenced to a BCD, confinement for six months, forfeiture of $44 pay per month for six months. On 9 January 1956, the convening authority approved the findings and sentence as adjudged. On 24 January 1956, an Air Force Board of Review found the findings and sentence correct in law and fact. The applicant waived his right to petition the U.S. Court of Military Appeals to review his case, making the findings and sentence in his case final and conclusive under the UCMJ. The sentence was affirmed and he was discharged with a BCD on 4 April 1956. Pursuant to the Board’s request, the Federal Bureau of Investigation (FBI) provided a copy of an Investigative Report, which is attached at Exhibit C. _________________________________________________________________ AIR FORCE EVALUATION: AFLOA/JAJM reviewed this application and recommends denial based on the application being untimely and without merit. JAJM states the applicant has identified no error or injustice related to his prosecution or the sentence. He pled guilty at trial to the offense and specification. The court members were presented with evidence that the applicant had been previously convicted at a summary court-martial for being AWOL for a week in 1954. The applicant waived his right to testify. While clemency may be granted under Title 10, USC, Section 1552(f)(2), the applicant provides no justification for his request, and clemency is not warranted in this case. Rule for Court-Marital 1003(b)(8)(C) states that a BCD is designed as punishment for bad conduct. It also indicates that a BCD is more than merely a service characterization; it is a punishment for crimes the applicant committed while a member of the armed forces. His sentence to a BCD, confinement for six months was within the legal limits and was an appropriate punishment for the offense committed. Additionally, clemency in this case would be unfair to those individuals who honorably served their country while in uniform. Congress’ intent in setting up the Veterans’ Benefit Program was to express thanks to veterans’ personal sacrifices, separations from family, facing hostile enemy action and suffering financial hardships. All rights of a veteran under the laws administered by the Secretary of Veterans Affairs are barred where the veteran was discharged or dismissed by reason of the sentence of a general court-martial. It would be offensive to all those who served honorably to extend the same benefits to someone who committed a crime such as the applicant’s while on active duty. The complete JAJM evaluation is at Exhibit D. _________________________________________________________________ APPLICANT'S REVIEW OF AIR FORCE EVALUATION: On 22 October 2010, a copy of the Air Force evaluation was forwarded to applicant for review and comment within 30 days. As of this date, no response has been received by this office (Exhibit E). On 14 December 2010, a copy of the FBI Report of Investigation and a request for post-service information was forwarded to applicant for review and comment within 30 days. In response, the applicant provides an expanded statement and copies of seven letters in support of his request (Exhibit G). _________________________________________________________________ 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 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 find no evidence which indicates the applicant’s service characterization, which had its basis in his conviction by special 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 the applicant's overall quality of service, the special court-martial conviction which precipitated the discharge, and the seriousness of the offenses of which convicted, e.g., being absent without authority (AWOL). Based on the evidence of record, and in view of the contents of the FBI Investigation Record we are not persuaded that the characterization of the applicant’s discharge warrants an upgrade to general on the basis of clemency. In view of the above, we conclude that no basis exists to grant favorable action on his request. _________________________________________________________________ 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. _________________________________________________________________ The following members of the Board considered Docket Number BC-2010-02381 in Executive Session on 30 March 2011, under the provisions of AFI 36-2603: The following documentary evidence was considered: Exhibit A. DD Form 149, dated 2 Jul 10, w/atch. Exhibit B. Applicant's Master Personnel Records. Exhibit C. FBI Report of Investigation. Exhibit D. Memorandum, AFLOA/JAJM, dated 21 Sep 10. Exhibit E. Letter, SAF/MRBR, dated 22 Oct 10. Exhibit F. Letter, AFBCMR, dated 14 Dec 10.