RECORD OF PROCEEDINGS
AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS

IN THE MATTER OF: 			DOCKET NUMBER: BC-2015-03391

						COUNSEL:  NONE

						HEARING DESIRED:  NO 

APPLICANT REQUESTS THAT:

His bad conduct discharge (BCD) be upgraded.

APPLICANT CONTENDS THAT:

The special court-martial that led to his bad conduct discharge was unduly harsh because “no one was injured and [he] was made an example of.”  In addition, while he was in Korea he was stabbed and the offender was only given 30 days [of confinement] and then allowed to move back into his tent, ostensibly arguing that a more severe assault than the one for which he was convicted resulted in lighter punishment.  

The applicant’s complete submission, with attachments, is at Exhibit A.

STATEMENT OF FACTS:

The applicant initially entered the Regular Air Force on 23 Jul 54.

On or about 22 Apr 58, the applicant committed an assault upon another Airman by striking him on the head with a means likely to produce grievous bodily harm, to wit: an umbrella.  

On 14 May 58, the applicant’s sentence was adjudged:  bad conduct discharge, forfeiture of $60.00 per month for three months, and confinement at hard labor for three months.  

On 4 Dec 58, Special Order Number 1232 was issued relieving the applicant from assignment, and discharged under other than honorable conditions (BCD) effective 11 Dec 58.  

On 7 Jun 16, AFBCMR sent the applicant the Upgrade of Discharge – Clemency Information Bulletin.  As of this date, no response has been received by this office (Exhibit E).

The remaining relevant facts pertaining to this application are contained in the memorandum prepared by the Air Force office of primary responsibility (OPR), which is attached at Exhibit C.    

AIR FORCE EVALUATION:

AFLOA/JAJM recommends denial indicating there is no evidence of an error or an injustice.  The applicant did not file his application within three years of the discovery of the alleged error or injustice, or with due diligence, should have been discovered.  Notwithstanding timeliness, AFLOA/JAJM opines there is no evidence or allegation of error or injustice to undermine the sentence adjudged at court martial and affirmed on appeal.  The applicant was tried by special court-martial in May 58 for aggravated assault, in violation of Article 128, Uniform Code of Military Justice (UCMJ).  More specifically, the applicant was tried for striking another airman on the head with an umbrella with a force likely to cause grievous bodily harm.  The applicant was represented by military defense counsel at trial.  The maximum allowable punishment for the charge based upon the type of court-martial convened in 1958 was six months confinement, forfeiture of two-thirds pay and allowances for six months, and a bad conduct discharge.  The applicant pled guilty and was sentenced to three months of confinement, forfeiture $60 pay per month for three months, and a bad conduct discharge.  

On 26 Jun 58, the convening authority approved the findings and adjudged sentence of the court-martial and ordered the forfeitures of pay executed.  Pursuant to Article 65(b) of the 1951 edition of the UCMJ, the record of trial was then forwarded to The Judge Advocate General for examination by a board of review, the predecessor to the modern Air Force Court of Criminal Appeals.  At the conclusion of this mandatory appellate review, the court-martial was found to be legally sufficient in all regards.  It was with a full picture of the applicant’s duty history, the aggravating circumstances of the crime, and any extenuation/mitigation evidence provided by the applicant that the court-martial fashioned an appropriate sentence.  Because no two cases are identical in all of these regards, comparisons to other assault cases that had a different outcome are not particularly instructive and should not be the basis for relief by the Board.  The applicant’s punishment was within the permissible punishments prescribed for the offense to which he pled guilty.

A complete copy of the 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 Mar 16 for review and comment within 30 days (Exhibit D).  As of this date, no response has been received by this office.

FINDINGS AND CONCLUSIONS OF THE BOARD:

Insufficient relevant evidence has been presented to demonstrate the existence of an error or injustice.  After a careful review of the applicant's contentions, documentation submitted in support of the request, and the available evidence of record, we are not convinced the applicant has provided sufficient evidence for us to conclude that he is the victim of an error or injustice.  We also note the applicant did not file the application within three years after the alleged error or injustice was discovered, or should have been discovered, as required by Title 10, United States Code, Section 1552 and Air Force Instruction 36-2603.  Therefore, because we do not find it would be in the interest of justice to recommend granting relief, and the applicant has offered no plausible reason for the delay in filing the application, we cannot conclude it would be in the interest of justice to excuse the failure to timely file the application.  Accordingly, we find the application untimely.

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-2015-03391 in Executive Session on 21 Jul 16 under the provisions of AFI 36-2603:

The following documentary evidence pertaining to AFBCMR Docket Number BC-2015-03391 was considered:

	Exhibit A.  DD Form 149, dated 20 Jul 15, w/atch.
	Exhibit B.  Applicant's Master Personnel Records.
	Exhibit C.  Memorandum, AFLOA/JAJM, dated 8 Feb 16.
	Exhibit D.  Letter, SAF/MRBR, dated 14 Mar 16.
	Exhibit E.  Clemency Bulletin, SAF/MRBR, dated 7 Jun 16.