RECORD OF PROCEEDINGS AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS IN THE MATTER OF: DOCKET NUMBER: BC-2013-05819 COUNSEL: NONE HEARING DESIRED: NO APPLICANT REQUESTS THAT: His Under Other Than Honorable Conditions (UOTHC) discharge be upgraded to general (under honorable conditions). APPLICANT CONTENDS THAT: His General Court-Martial Orders (Numbers 1, 4 or 13); do not reflect he was discharged with service characterized as UOTHC. He has served his time. However, except for one-third of pay, his military pay was reinstated; to include all rights, privileges and property for which he was deprived. In support of his request, the applicant provides a personal statement and various other documents associated with his request. The applicant’s complete submission, with attachments, is at Exhibit A. STATEMENT OF FACTS: On 7 Jan 74, the applicant enlisted in the Regular Air Force. On 8 Nov 74, the applicant received non-judicial punishment under Article 15, Uniform Code of Military Justice (UCMJ), for failure to obey a lawful order and assault in violation of Articles 92 and 128 of the UCMJ. For this misconduct, he was reduced to the grade of airman basic and ordered into correctional custody for a period of 30 days. On 22 Jul 75, the applicant received a Letter of Reprimand for unlawfully disposing of United States (US) Government property in violation of Article 108, UCMJ. On or about 3 Feb 76, the applicant Absent himself Without Leave (AWOL) and remained absent until on or about 13 Feb 76, in violation of Article 86, UCMJ. On or about 31 Mar 76, the applicant unlawfully entered a building, with intent to commit larceny and stole property valued at $1,831.46, the property of the US Government all in violation of Articles 130 and 121, UCMJ. The applicant was placed in pre-trial confinement from 1 thru 30 Apr 76. On 4 Jun 76, the applicant was tried by a General Court-Martial. He pled guilty and was found guilty of all the charges and specifications of unauthorized absence, housebreaking with intent to commit larceny and larceny in violation of Articles 86, 130 and 121, UCMJ. On 7 Jun 76, he was sentenced to be dishonorably discharged, to forfeit all pay and allowances, to be confined at hard labor for two years, and reduced in grade from airman first class to airman basic. The convening authority approved the sentence as adjudged. According to AFLOA/JAJM letter dated 16 Apr 14, on 9 Sep 76, the Air Force Court of Military Review determined the applicant’s plea of guilty with respect to the housebreaking charge was improvident. On 10 Jan 77, the United States Court of Military Appeals denied the applicant’s petition for grant of review. On 10 May 77, the convening authority remitted the unexecuted portion of the sentence to confinement at hard labor for one year and three months and forfeiture of $240.00 per month for one year and three months. Also, the convening authority ordered the applicant’s Bad Conduct Discharge (BCD) be executed. On 11 May 77, the applicant’s DD Form 214 was issued. However, the DD Form 214 reflects he received an Under Other Than Honorable Conditions discharge rather than a BCD as ordered by the convening authority. He is credited with 2 years, 3 months and 21 days of total active service. AIR FORCE EVALUATION: AFLOA/JAJM recommends denial. Based on a review of the record, JAJM finds no error or injustice with the military justice process which would warrant upgrading the applicant’s discharge to a general (under honorable conditions) discharge. The application was submitted more than three years since the alleged error. The application is untimely. The applicant argues that he was in a New York State federal detention facility until 2011, and has been trying to pursue this with no resolution. However, he has not provided enough evidence establishing how his incarceration prohibited him from submitting his request within three years of his discharge. The applicant argues that his discharge characterization should be upgraded because he received ineffective assistance of counsel. He also claims that the UOTHC is not stated on his court-martial orders. On 10 May 77, the convening authority ordered the applicant's BCD executed. On 11 May 77, the applicant's DD Form 214 was issued. The form showed that the applicant received an Under Other Than Honorable Conditions (UOTHC) discharge, not a BCD as had been ordered by the convening authority. This appears to be an error. Pursuant to 10 United States Code, Section 1552(f), the Board has the authority to take action on the sentence of a court-martial for purposes of clemency. Changing the applicant’s DD Form 214 to show that he received a BCD at this point would not be an act of clemency because it would arguably be a worse discharge characterization than the administrative discharge currently recorded. The complete JAJM evaluation is at Exhibit C. APPLICANT'S REVIEW OF AIR FORCE EVALUATION: The Board continues to violate his constitutional rights by refusing to review his court-martial transcript. In the court- martial transcripts, the two government witnesses state the Air Force Office of Special Investigations (OSI) paid them each $125.00 to enable and convince him to commit a crime. This is considered entrapment. To date, the Air Force has made no mention of reviewing the court-martial minutes regarding the government witness statements. Without reviewing these statements the Board cannot make a competent, honest and constitutionally correct review of his records and this makes the process a legal injustice and a violation of his constitutional rights. Since his discharge, he has obtained quality employment in the construction field. He was married for 26 years and has two children who he supports. He pays taxes and has never been a burden to this country. He put his life on the line to defend this country as a non-citizen. Justice and the United States Constitution dictate he receive the benefits he is due. He never stated that being in a detention facility delayed his appeals process for an UOTHC discharge. The original charge of housebreaking with the intent to commit larceny and larceny was considered improvident by the Air Force Court of Military Review. Meaning he should have not submitted a plea of guilty with respect to the housebreaking charge. Therefore, the only charge remaining would have been the unauthorized absence which did not warrant a General Court- Martial, dishonorable discharge, forfeiture of all pay and allowances, confinement at hard labor for two years and reduction to the grade of airman basic. He pled guilty under duress from his assigned lawyer. The applicant’s complete submission is at Exhibit E. FINDINGS AND CONCLUSIONS OF THE BOARD: After careful consideration of applicant’s request and the evidence of record, we find the application untimely. The applicant did not file within three years after the alleged error or injustice was discovered as required by Title 10, United States Code, Section 1552 and Air Force Instruction 36-2603. The applicant has not shown a sufficient reason for the delay in filing, and we are not persuaded that the record raises issues of error or injustice which require resolution on the merits. Thus, we cannot conclude it would be in the interest of justice to excuse the untimely filing of this application. THE BOARD DETERMINES THAT: The application was not timely filed and it would not be in the interest of justice to waive the untimeliness. It is the decision of the Board, therefore, to reject the application as untimely. The following members of the Board considered AFBCMR Docket Number BC-2013-05819 in Executive Session on 18 Sep 14, under the provisions of AFI 36-2603: Panel Chair Member Member The following documentary evidence was considered: Exhibit A. DD Form 149, dated 17 Dec 13, w/atchs. Exhibit B. Applicant's Master Personnel Records. Exhibit C. Letter, AFLOA/JAJM, dated 16 Apr 14. Exhibit D. Letter, SAF/MRBR, dated 25 Apr 14. Exhibit E. Letter, Applicant, dated 13 May 14.