RECORD OF PROCEEDINGS
AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS

IN THE MATTER OF: 			DOCKET NUMBER: BC-2016-01793

						COUNSEL:  NONE

						HEARING DESIRED:  YES 

APPLICANT REQUESTS THAT:

His under other than honorable conditions (UOTHC) discharge be upgraded.  

APPLICANT CONTENDS THAT:

He is getting older and needs help.  He should have made this request many years ago.  He felt he was wronged and was picked on.

As a child, he lived in the suburbs where he was the only black child in his class.  He was picked on daily and learned to fight back.  He felt as if he survived the chaos of being black during the 1950s.

In the 1960s, he was in the Air Force and on his way to Vietnam to fight someone else.  In his heart he did not feel it was his fight.  While in Vietnam he met two friends, drugs and alcohol.  Although he was not old enough to enter a bar in the United States, there were no rules in Vietnam.  He thought he could do as he pleased but learned this was not the case.  After Martin Luther King was assassinated, he was fueled on alcohol and drugs.  He believed all white people were out to get him.  His friends in the barracks told him about something a white male was doing to a black person and they went to see them and got in a fight.  People were hurt which made him feel good at the time.

He is now done with drugs.  His brain is recovering and he feels he needs to apologize to the people who were hurt that night.  He feels remorse for the things he has done and he hopes he can be forgiven.

In support of his request, the applicant provides character reference letters from his pastor, volunteer coordinator at the church food pantry and employer.  

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

STATEMENT OF FACTS:

The applicant entered the Regular Air Force on 22 July 1965.

Per Special Court-Martial Order Number 1 dated 8 April 1968, the applicant was charged in violation of Article 134, Uniform Code of Military Justice (UCMJ) with wrongful possession of 8.65 grams of marijuana on or about 9 January 1968 in Pleiku City, Vietnam.  Punishment adjudged was reduction to the grade of Airman (Amn, E-2) and forfeiture of $99.00 pay per month for six months.

According to the Air Force Discharge Review Board (AFDRB) proceedings dated 6 January 1976, on 8 August 1968, the applicant requested discharge for the good of the service pursuant to AFM 39-12, Separation for Unsuitability, Misconduct, Resignation or Request for Discharge for the Good of the Service and Procedures for the Rehabilitation Program.  On 9 August 1968, the applicant’s commander recommended the request for discharge be approved and he be discharged with a UOTHC.  The reasons for the discharge recommendation include the applicant’s conviction by a special-court-martial for possession of marijuana.  The applicant also showed no sense of remorse after seriously wounding a fellow airman in a fight.  The applicant was also orally charged with disrespect toward an officer on 8 August 1968 during an incident that occurred in the dining hall.  The applicant was personally counseled at least two times concerning his behavior.  The staff judge advocate recommended approval of the discharge and indicated the applicant was under investigation for aggravated assault with a dangerous weapon.  The victim was cut twice in the back of the head and once behind the right ear and required approximately three dozen stitches.  The victim was knocked unconscious and remembered nothing about the attack.  After being advised of his rights under Article 31, UCMJ, the applicant confessed and admitted to hitting an airman in the back of the head several times with an empty gin bottle.

On 1 September 1968, the applicant was discharged with a UOTHC.  He served 3 years, 1 month and 10 days of active duty service.

On 15 October 1975, the applicant submitted a DD Form 293, Application for Review of Discharge or Separation from the Armed Forces of the United States, requesting the AFDRB upgrade his UOTHC discharge.  He stated in his application he was incarcerated from 2 June 1970 to 3 May 1971 for selling and possession of heroin.  Upon his release, he started going to school and was doing fairly well until he had to drop out of school.

In a letter dated 22 March 1976, the applicant was advised the AFDRB denied his request for upgrade of his UOTHC discharge.  The applicant was advised of his right to appeal to the AFBCMR.

On 17 August 2016, the AFBCMR provided the applicant with an opportunity to provide information pertaining to his post service activities (Exhibit C).  As of this date, this office has not received a response.

The remaining relevant facts pertaining to this application are contained in the memorandums prepared by the Air Force offices of primary responsibility (OPR), which are attached at Exhibits D and E.    

AIR FORCE EVALUATION:

AFLOA/JAJM recommends denial.  There is no evidence or allegation of an error or injustice that undermines the sentence adjudged at court-martial.  AFLOA/JAJM defers to AFPC/JA regarding the sufficiency of the applicant’s discharge action with regards to an upgrade of his service characterization.  The applicant’s request is also untimely.  

The applicant enlisted in the Air Force at the age 18.  While in Vietnam, he was court-martialed in March 1968 for wrongfully possessing marijuana.  Contrary to his pleas, he was found guilty and sentenced to a reduction in grade and forfeiture of pay in the amount of $99.00 per month for six months.  On 8 April 1968, the convening authority approved and executed the sentence.

According to information in the application and the AFDRB report, on 26 July 1968, the applicant got into a fight with several other airmen while he was still serving his punishment (forfeiture) from the court-martial.  He contends he was given two choices, fight the allegations and risk five years in confinement and a dishonorable discharge or take an administrative discharge.  He chose the latter believing he would receive a general discharge but instead received an UOTHC.  Based on the AFDRB report, he requested discharge on 8 August 1968 for the good of the service pursuant to AFM 39-12.  His commander recommended an undesirable discharge characterization based on his overall performance and the facts of the assault.

The applicant knew in 1968 he was being discharged with an UOTHC.  He does not provide any explanation for why the request was not made within three years of these dates.  His application could be denied on this basis alone.  He was notified in the AFDRB letter dated 22 March 1976 denying his request for upgrade of his discharge that he could appeal to the AFBCMR for relief.  AFLOA/JAJM sees no basis in law to suggest his court-martial sentence is an injustice warranting correction by the Board.  Furthermore, the applicant’s discharge action was administrative and not punitive.  

A complete copy of the AFLOA/JAJM evaluation is at Exhibit D.

AFPC/JA recommends denial absent a determination by the Board that upgrade of his discharge is warranted based on clemency.  The matter was previously considered by the AFDRB in 1976.  The applicant made his request for discharge in lieu of possibly receiving confinement and a dishonorable discharge after getting into a fight.  He also reported he made the request thinking he would receive a general discharge.  On 9 August 1968, his commander recommended he receive an undesirable discharge based on his overall performance, prior conviction by special court-martial for possession of marijuana, an incident in which he was disrespectful to an officer and the facts of the assault where he seriously injured another airman and expressed no remorse.

The applicant’s request is not timely.  He has been aware of his discharge and service characterization for more than 47 years.  The applicant has submitted no information that would warrant a waiver of the untimely request.  There is also no evidence in his military record to indicate the discharge characterization was erroneous or unjust.  The applicant has provided character references that attest to his life subsequent to his military service.  However, the application does not provide any information to explain the quality of his military service.  As extenuating or mitigating factors surrounding his Air Force misconduct, he states he was upset about the assassination of Martin Luther King and that he was under the influence of drugs and alcohol at the time he assaulted airmen engaged in a bible study over what he perceived wrongly as a racial slight.  AFPC/JA does not believe this justification warrants a degree of clemency in the interest of justice.

A complete copy of the AFPC/JA evaluation is at Exhibit E.  

APPLICANT'S REVIEW OF AIR FORCE EVALUATION:

Copies of the Air Force evaluations were forwarded to the applicant on 11 April 2017 for review and comment within 30 days (Exhibit F).  As of this date, no response has been received by this office.

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 injustice.  We took notice of the applicant's complete submission in judging the merits of this case; however, we find no evidence of an error or injustice that occurred in the discharge processing.  Based on the available evidence of record, it appears the discharge was consistent with the substantive requirements of the discharge regulation and within the commander's discretionary authority.  The applicant has not provided substantial evidence which would lead us to believe the characterization of the service was contrary to the provisions of the governing regulation, unduly harsh, or disproportionate to the offenses committed.  Therefore, we agree with the opinions and recommendations of the Air Force offices of primary responsibility  and adopt the rationale expressed as our conclusion the applicant has not sustained his burden of proof that he has been the victim of an error or injustice.  In the interest of justice, we considered upgrading the discharge based on clemency; however, we find the information presented insufficient to warrant recommending granting relief on that basis.  As a Vietnam veteran, the Board recommends the applicant contact the Department of Veterans Affairs (DVA) to determine his eligibility for services and whether his Vietnam service may be considered honorable for VA purposes.  In view of the above and in the absence of evidence to the contrary, we find no basis to recommend granting the relief sought.   

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 issues involved.  Therefore, the request for a hearing is not favorably considered.

THE BOARD RECOMMENDS THAT:

The applicant be notified the evidence presented did not demonstrate the existence of material error or injustice; the application was denied without a personal appearance; and 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 AFBCMR Docket Number BC-2016-01793 in Executive Session on 6 July 2017 under the provisions of AFI 36-2603:

The following documentary evidence pertaining to AFBCMR Docket Number BC-2016-01793 was considered:

	Exhibit A.  DD Form 149, dated 6 April 2016, w/atch
	Exhibit B.  Applicant's Master Personnel Records.
	Exhibit C.  Letter, AFBCMR, dated 17 August 2016.
	Exhibit D.  Memorandum, AFLOA/JAJM, dated 26 September 2016.
	Exhibit E.  Memorandum, AFPC/JA, dated 29 November 2016.
	Exhibit F.  Letter, AFBCMR, dated 11 April 2017.  

Pursuant to paragraph 1 of AFI 36-2603 (Title 32 Code of Federal Regulations, Part 865.1), it is certified that a quorum was present at the Board's review and deliberations, and that the foregoing is a true and complete record of the Board's proceedings in the above entitled matter.