RECORD OF PROCEEDINGS AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS IN THE MATTER OF: DOCKET NUMBER: BC-2013-00735 COUNSEL: NONE HEARING DESIRED: YES ________________________________________________________________ APPLICANT REQUESTS THAT: His under other than honorable conditions (UOTHC) character of service be upgraded. ________________________________________________________________ APPLICANT CONTENDS THAT: At the time of his trial he was 19 years old and acting on the advice of the attorney assigned to handle his case. He was told he had two options to go through a retraining program or take the discharge. His attorney advised him to take the discharge. In looking back he takes the blame for his part in everything that happened. As the years have gone by he has been able to stay out of trouble and move on with his life. The results of undocumented injuries he received while in the military is causing him great difficulties and he is seeking help. In support of his request the applicant submitted a handwritten statement, his court martial special order dated 28 March 1975, and documents pertaining to his trial. The applicant’s complete submission, with attachments, is at Exhibit A. ________________________________________________________________ STATEMENT OF FACTS: According to copies of documents extracted from his military personnel record (MPR) the applicant enlisted in the Regular Air Force on 18 January 1974 and was released on 23 September 1975. He was credited with serving 1 year, 8 months and 4 days of active duty service. The remaining relevant facts pertaining to this application are contained in the letter prepared by the appropriate office of the Air Force at Exhibit C. ________________________________________________________________ AIR FORCE EVALUATION: 1. AFLOA/JAJM recommends denial. JAJM states the applicant's sentence to a bad conduct discharge was well within legal limits. This discharge was and continues to be part of a proper sentence and properly characterizes his service. 2. On or about 30 December 1974, the applicant stole a portable television from another airman of a value in excess of $50.00 but less than $100.00. On 28 January 1975, the applicant, then an airman basic, pled not guilty but was found guilty of one charge and one specification of larceny, in violation of Article 121, Uniform Code of Military Justice (UCMJ). The applicant was sentenced to a bad conduct discharge. On 28 March 1975, the convening authority approved the finding and sentence. The applicant appealed to the Air Force Court of Criminal Appeals who affirmed the approved findings and sentence on 24 July 1975. The applicant did not petition the United States Court of Appeals for the Armed Forces for review. The applicant's bad conduct discharge was ordered to be executed on 15 September 1975. 3. 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 is limited. Specifically, section 1552 (f) (1) permits the correction of a record to reflect actions taken by a reviewing authority under the 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 1950 (the effective date of the UCMJ). 4. Clemency in this case would be unfair to those 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 in accordance with 38 USC §5303 (a). 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 AFLOA/JAJM evaluation is at Exhibit C. ________________________________________________________________ APPLICANT'S REVIEW OF AIR FORCE EVALUATION: A copy of the Air Force evaluation was forwarded to the applicant on 14 April 2013, for review and comment within 30 days (Exhibit D). To date, a response has not been received. ________________________________________________________________ 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 that 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 court-martial conviction which precipitated the discharge, the seriousness of the offense to which convicted, and the absence of any documentation pertaining to post-service activities. Based on the evidence of record, 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 5 November 2013, under the provisions of AFI 36-2603: , Panel Chair , Member , Member The following documentary evidence was considered in AFBCMR Docket Number BC-2013-00735: Exhibit A. DD Form 149 dated 17 January 2013, w/atchs. Exhibit B. Applicant’s Master Personnel Records. Exhibit C. Letter, AFLOA/JAJM, dated 4 April 2013. Exhibit D. Letter, SAF/MRBR, dated 14 April 2013. 1 2