RECORD OF PROCEEDINGS AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS IN THE MATTER OF: DOCKET NUMBER: BC-2011-03511 COUNSEL: NONE HEARING DESIRED: NO ________________________________________________________________ APPLICANT REQUESTS THAT: His undesirable discharge be upgraded to a general discharge. ________________________________________________________________ APPLICANT CONTENDS THAT: He served honorably for the original term of his contract. Right before he was to be discharged his contract was changed and he did not agree with the change. His father was sick with cancer and he had to go home. He has maintained an honorable life and has lived within the values instilled in him by the military. His time in service should not be tarnished by one event. He was acting within the honor value system of the military by attending to his dying father. In support of his request, but not listed on his DD Form 149, the applicant submits letters of support from his daughter and previous landlord. The applicant’s complete submission with attachments is at Exhibit A. ________________________________________________________________ STATEMENT OF FACTS: The applicant enlisted in the Regular Air Force on 28 December 1948 and was progressively promoted to the rank of Airman Second Class (A2C), with a pay grade of E-3 and a date of rank of 1 February 1950. The applicant’s rank at the time of discharge was Airman Basic (AB), with a pay grade of E-1, and a date of rank of 29 April 1952. On 7 November 1952, the applicant’s commander initiated a Request for Board Action under the provisions of AFR 39-17. The specific reason for the proposed action was; Unfitness. The applicant had been a constant offender and administratively disciplined on several separate occasions in 1952. The commander stated, the applicant put forth very little effort to overcome his difficulties in spite of receiving adequate counseling from officers and senior noncommissioned officers. He had shown no improvement as evidenced by the following specific incidents: In February 1952 he received Articles 15 for reporting late for duty and for breaking restriction. On 29 April 1952, the applicant faced a special court-martial and was found guilty of the specification of violation of Article 86, Uniform Code of Military Justice (UCMJ), Absence without leave; failure to go to appointed place of duty at the time prescribed. He was sentenced to reduction to the lowest enlisted grade and forfeiture of $53.00 pay per month for four months. The findings and sentence were approved as adjudged on 6 May 1952. In June 1952, he received an Article 15 for reporting for duty drunk to the extent of having to be assisted to the commander’s office. On 2 July 1952, the applicant faced a general court-martial and pled not guilty to the charge and specifications of stealing one blue suit of a value of $75.00 from an airman in his unit. The applicant was found guilty of the specification except for the word $75.00 which was substituted by the word $20.00. He was found not guilty of the excepted word but guilty of the substituted word. The applicant was sentenced to confinement and hard labor for six months and forfeiture of $60.00 pay per month for six months. The findings and sentence were approved as adjudged on 4 August 1952. Due to AWOL, confinement and administrative actions the applicant had over 180 lost duty days. On 15 November 1952, the applicant acknowledged receipt of the discharge action and his right to appear before a board of officers, to be represented by counsel, present witnesses, introduce evidence and cross-examine the witnesses offered by the Board Recorder. He declined to be represented by counsel as well as present witnesses, evidence or comments on his behalf. The Board met on 18 November 1952. On 3 December 1952 the Board of Officers recommended the applicant be discharged for unfitness under the provisions of AFR 39-17 upon completion of the sentence of the last court-martial or if feasible, remittance of any portion of the unserved sentence to permit early discharge. Subsequent to the proceedings being found legally sufficient the discharge authority approved the recommendation and on 7 December 1952, the applicant was discharged from the Air Force with an undesirable characterization of service and credited with serving 3 years, 4 months and 18 days of service of which 1 year, 1 month and 23 days were credited as Foreign and/or Sea Service. Pursuant to the Board’s request, the Federal Bureau of Investigation (FBI) provided a copy of an Investigative Report which is at Exhibit C. ________________________________________________________________ AIR FORCE EVALUATIONS: AFLOA/JAJM recommends denial. JAJM states ordinarily, an applicant must file an application within three years after an error or injustice is discovered or, with due diligence, should have been discovered. The applicant’s courts-martial and final action on his discharge took place in 1952. He says the Board should find it in the interest of justice to consider the application because he has lived an honorable life in accordance with the values learned from the military. He says his time in the service should not be tarnished by one event. The application is untimely. At the time of the applicant’s service, the Air Force did not keep records of trial for courts-martial which did not result in a punitive discharge; therefore a review of the transcripts of the courts-martial is not possible. JAJM reviewed the applicant’s military justice actions from the documents in the applicant’s personnel records. Based on these records, there is no evidence of error in the processing in the applicant’s two courts-martial and three Article 15 actions. Under 10 U.S.C.1552 (f), which amended the basic corrections board legislation, The Board’s ability to correct records related to courts-martial occurring or reviewed under the UCMJ, is limited. Specifically, section 1552(f) (1) 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 1950 (the effective date of the UCMJ). JAJM defers to other agencies to offer opinions on whether the Board should grant the applicant’s request with regard to his administrative discharge action. We recommend against action by the Board on the applicant’s military justice actions. The complete AFLOA/JAJM evaluation is at Exhibit D. AFPC/DPSOS recommends denial. DPSOS states; they found no error or injustices in the processing of the discharge action. Based upon the documentation on file in the master personnel records, the discharge was consistent with the procedural and substantive requirements of the discharge authority. The applicant did not submit any evidence or identify any errors or injustices that occurred in the discharge processing. The complete AFPC/DPSOS evaluation is at Exhibit E. ________________________________________________________________ APPLICANT'S REVIEW OF AIR FORCE EVALUATIONS: Copies of the Air Force evaluations were forwarded to the applicant on 22 December 2011 for review and comment within 30 days (Exhibit F). As of this date, this office has not received a response. On 5 April 2012, a copy of the FBI Investigative Report was forwarded to the applicant along with a request for post-service documentation for review and comment within 30 days (Exhibit G). In response, the applicant provided letters from his sisters and the manager of the assisted living facility where he now resides (Exhibit H). ________________________________________________________________ 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 an error or an injustice. We took notice of the applicant's complete submission in judging the merits of the case; however, we agree with the opinions and recommendations of the Air Force offices of primary responsibility and adopt their rationale as the basis for our conclusion that the applicant has not been the victim of an error or injustice. In the interest of justice, we considered upgrading the discharge based on clemency; however, in the absence of sufficient evidence by the applicant attesting to a successful post-service adjustment in the years since his separation, we are not inclined to extend clemency at this time. However, the Board is willing to reconsider the applicant’s request if he can provide evidence supporting a successful post- service adjustment. ________________________________________________________________ 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 this application BC-2011-03511 in Executive Session on 8 May 2012, under the provisions of AFI 36-2603: The following documentary evidence was considered: Exhibit A. DD Form 149, dated 16 August 2011, w/atchs. Exhibit B. Applicant’s Master Personnel Records. Exhibit C. FBI Report Exhibit D. Letter, AFLOA/JAJM, dated 24 October 2011. Exhibit E. Letter, AFPC/DPSOS, dated 12 December 2011. Exhibit F. Letter, SAF/MRBR, dated 22 December 2011. Exhibit G. Letter, SAF/MRBC w/atchs, dated 5 April 2012. Exhibit H. Letter, Applicant’s sister w/atchs, dated 16 April 2012.