RECORD OF PROCEEDINGS AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS IN THE MATTER OF: DOCKET NUMBER: BC-2012-03615 COUNSEL: HEARING DESIRED: YES ________________________________________________________________ APPLICANT REQUESTS THAT: His general (under other than honorable conditions) [sic] discharge be upgraded to honorable. ________________________________________________________________ APPLICANT CONTENDS THAT: His punishment was too severe. He was an alcoholic while he was in the Air Force and has been sober for 38 years and has not been in any trouble. He deserves a second chance. The applicant’s complete submission, with attachments, is at Exhibit A. ________________________________________________________________ STATEMENT OF FACTS: On 28 Mar 2013, a request for post-service information was forwarded to the applicant for review and comment within 30 days (Exhibit C), as of this date, no response has been received by this office. The remaining relevant facts pertaining to this application are contained in the letter prepared by the appropriate office of the Air Force at Exhibit D. ________________________________________________________________ AIR FORCE EVALUATION: AFLOA/JAJM recommends denial. JAJM states that upgrading the applicant’s BCD is not appropriate and recommends the Board deny the request as untimely or on the merits. JAJM states that 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. His court-martial took place in 1975 and the final action on his discharge was taken in 1976. The application is untimely. In May 1975, the applicant, then an airman basic assigned to Nellis Air Force Base, Nevada, was accused of stealing two separate vehicles. On the evening of 30 Apr 1975, an airman reported to security forces that his 1964 Buick, which he had parked outside of his barracks, was missing. Later that evening, a security forces member on his way to duty observed a one car accident off base. The security forces member stopped to render assistance and discovered the applicant in a 1964 Buick. At the scene of the accident, the applicant appeared to be intoxicated and stated to the security forces member that it was his vehicle; although, he subsequently claimed that he had in fact borrowed the vehicle from a friend. The following day, security forces discovered that the vehicle driven by the applicant was the same Buick reported stolen the previous day. On 7 May 1975, a staff sergeant, who was working part-time off- duty as a janitor, observed someone driving off with his janitorial van in an erratic manner. The staff sergeant reported this theft to security forces, who were then able to stop the van at the gate. The applicant was driving the van and alleged that three individuals had stolen the truck and that he beat them up, threw them out of the van, and was in the process of returning the van. A search of the installation revealed no one who fit the descriptions of these men provided by the applicant. On 11 Jun 1975, the applicant pled not guilty in a general court-martial to two specifications of larceny, in violation of Article 121, Uniform Code of Military Justice (UCMJ). At the general court-martial and before a military judge alone, the applicant was found guilty of the charge and its specifications, contrary to his plea. The applicant was sentenced to a BCD, forfeiture of $175.00 pay per month for eleven months, and confined at hard labor for eleven months. On 1 Aug 1975, the convening authority approved the guilty finding as to the specification alleging the theft of the Buick, but disapproved the guilty finding as to the specification alleging the theft of the janitorial van. Additionally, the convening authority reduced the sentence to a BCD, confinement at hard labor for eight months, and forfeiture of $175.00 pay per month for eight months. On 23 Dec 1975, the Court of Military Review affirmed the findings and sentence as approved. On 29 Mar 1976, the United States Court of Military Appeals declined the applicant's petition for review, making the findings and sentence in his case final and conclusive under the UCMJ. As a result, the applicant's BCD was ordered to be executed on 7 May 1976. 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 Benefits Program was to express thanks for 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. This makes sense if the benefit program is to have any real value. It would be offensive to all those who served honorably to extend the same benefits to someone who committed crimes 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 28 Mar 2013, a copy of the Air Force evaluation was forwarded to the applicant for review and comment within 30 days. To date, a response has not been received (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. 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), our actions 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 court-martial conviction 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 considered upgrading the discharge on the basis of clemency; however, after considering the applicant's overall quality of service, the court-martial conviction which precipitated the discharge, the seriousness of the offenses of which convicted, and noting the lack of documentation pertaining to his post-service activities, we cannot conclude that clemency is warranted. In view of the above, we cannot recommend approval based on the current evidence of record. 4. The applicant's case is adequately documented and it has not been shown that a personal appearance with or without counsel will materially add to our understanding of the issue(s) involved. Therefore, the request for a hearing is not favorably considered. ________________________________________________________________ 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 in Executive Session on 21 May 2013, under the provisions of AFI 36-2603: , Panel Chair , Member , Member The following documentary evidence was considered: Exhibit A. DD Form 149, dated 8 Aug 2012, w/atchs. Exhibit B. Applicant's Master Personnel Records. Exhibit C. Letter, AFBCMR, dated 28 Mar 2013. Exhibit D. Letter, AFLOA/JAJM, dated 11 Oct 2012. Exhibit E. Letter, AFBCMR, dated 28 Mar 2013, w/atch.