RECORD OF PROCEEDINGS
AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS

IN THE MATTER OF:	DOCKET NUMBER:  BC-2005-00132
		INDEX CODE 106.00
	 	COUNSEL:  None

	 	HEARING DESIRED:  Not Indicated

MANDATORY COMPLETION DATE:  15 Jul 05

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APPLICANT REQUESTS THAT:

His 1956 bad conduct discharge (BCD) be upgraded to a general discharge.

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APPLICANT CONTENDS THAT:

While serving a sentence of six months at hard labor at the base stockade from a summary court-martial (SCM) just prior to his release, he appeared before a pre-release Board of Inquiry (BOI).  He was given the option of returning to duty or an early release taking a BCD.  [Note: The applicant was not offered clemency/rehabilitation - See Statement of Facts.]  He regretfully chose the latter.  He has been an exemplary citizen since his discharge and his rehabilitated life needs to have this stain removed.  Although he never used drugs, he associated with a court-martialed basic training instructor who hustled basics for money.  Soon he was doing the same as a way to support their party life.  He has lived a decent life ever since.  He has lost all his military records through the years.  

The applicant includes photographs he labels as:  Lackland AFB, TX, Feb 54; Luke AFB, AZ, Sep 54; Parks AFB, CA, Sep 55; and Parks AFB Hospital, Apr 55.  His complete submission, to include post-service information, is at Exhibit A. 

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STATEMENT OF FACTS:

The applicant’s military records were totally destroyed in the 1973 fire at the National Personnel Records Center at St. Louis, Mo.  

On 11 Jan 05, SAF/MRBR requested the applicant provide copies of his DD Form 214, Separation Order, and any documents/records he might have in his possession in order to assist the Board in rendering a decision on his case.  By letter dated 10 Feb 05, the applicant responded he had no further documentation.  

On 10 Feb 05, SAF/MRBR advised the applicant that, upon receiving his application, they researched the index of military personnel records stored at NPRC.  His record was indexed with an “E” prefix, denoting it contained only an auxiliary document, likely an enlistment ledger reflecting his date of enlistment.  As previously advised, the 1973 fire destroyed the applicant’s records.  SAF/MRBR again requested a copy of the applicant’s Report of Separation, DD Form 214.

In a letter dated 14 Feb 05, the applicant indicated all of his military papers were lost in Jul 1976 when he moved from Utah to Montana.  

Pursuant to a 3 Mar 05 request by the AFBCMR Staff, AFLSA/JAJM provided a copy of the applicant’s Record of Trial (ROT) and associated documents, including a legal review.  The following information was extracted from those materials:

	-- On 19 Jan 54, the applicant enlisted in the Regular Air Force and took basic training at Lackland AFB, TX.  He then graduated from a supply technical school on 2 Jul 54.  He was assigned to Luke AFB, AZ, as a supply records clerk until 24 Jan 55, when he was sent on temporary duty (TDY) to Parks AFB, CA, in order to have an eye operation at the 3275th USAF Hospital.  However, it developed that he required five more operations on his eye and was a patient for six months.  On 27 Jun 55, he was released from the hospital and subsequently changed to a permanent change of station (PCS) at the 3277th Basic Military Training Squadron at Parks AFB, CA, as a supply records clerk.

	-- Special Court-Martial Order (SCMO) No. 210, dated 30 Nov 55, reflects the applicant, then an airman second, pled and was found guilty of violating a lawful general regulation, Parks AFB Regulation 30-4/30-4A, dated 1 Dec 54 and amended 12 May 55, by soliciting money from five basic trainees on or about 27 Aug 55; and of wrongfully altering an official Armed Forces Liberty Pass on or about 6 Jul 55, by stamping “Over 21” across the face, knowing this to be false and unauthorized.  The sentence was reduction to the lowest enlisted grade, confinement at hard labor for four months, and forfeiture of $55.00 per month for four months.  The sentence was adjudged on 28 Nov 55, and approved on 30 Nov 55.  The applicant served 67 days in the stockade, the balance of his confinement was suspended, and he was released to his organization on 3 Feb 56.

	-- On 23 Mar 56, the applicant certified he had read or had read to him and fully understood the provisions of Parks AFB Regulation 30-4, Standing Order, dated 13 Mar 56, which prevented all base military members, particularly instructors and student flight leaders, from taking advantage of the inexperience or vulnerable status of basic military trainees or technical training students for personal benefit by soliciting or accepting for any purpose, directly or indirectly, anything of value from them.  

	-- On 31 Jul 56, a Special Court-Martial convened at Parks AFB, CA.  The applicant pled and was found guilty of violating the lawful general regulation mentioned above by borrowing $25.00 from an airman third class on 16 May 56, borrowing $10.00 from an airman third class on 20 May 56, and borrowing $3.00 from an airman third class on 30 May 56.  He was sentenced to confinement at hard labor for six months, forfeiture of $65.00 a month for six months, and a BCD.  

	-- The sentence was approved on 3 Aug 56 and the case was forwarded to the Parks AFB Judge Advocate General (JAG) for consideration by a Board of Review.  In considering clemency, the commander, the post-trial interviewing officer, and the confinement officer were against clemency in view of the applicant’s previous similar offense and past expressed desire to get out of the service, which questioned the sincerity of his present desire to be rehabilitated.  The prison chaplain recommended rehabilitation.  The applicant had been evaluated as having poor character and unsatisfactory efficiency.  The Board of Review did not recommend clemency and, on 24 Aug 56, the sentence was affirmed.  

	-- The applicant was advised of his rights to appeal to the US Court of Military Appeals on 28 Aug 56.  As no petition for a grant of review was received, SCMO No. 192, dated 5 Oct 56, ordered the sentence executed.  The Order also indicated that the portion of the sentence pertaining to confinement at hard labor and forfeiture, which remained unexecuted as of 17 Oct 56, would be remitted.

Pursuant to the Board's request, the Federal Bureau of Investigation, Washington, D.C., indicated that on the basis of the data furnished, they were unable to locate an arrest record (Exhibit C).  

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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.	Sufficient relevant evidence has been presented to demonstrate the existence of error or injustice to warrant granting the applicant’s request to have his BCD upgraded to a general characterization.  After a thorough review of the ROT, we find no evidence showing the applicant’s service characterization, which had its basis in his conviction by special court-martial and was part of the sentence of a military court, was improper or exceeded the limitations set forth in the Uniform Code of Military Justice.  However, we recognize the adverse impact of the discharge the applicant received and, while it may have been appropriate at the time, we believe it would be an injustice for him to continue to suffer its effects.  In consideration of the applicant’s current age, his apparent immaturity at the time of his enlistment and, based on the negative FBI report, no evidence of any subsequent involvement of a derogatory nature since his separation from the Air Force, we believe corrective action is appropriate on the basis of clemency.  We could not find the date the applicant was actually discharged, as this information was not contained in the ROT documents and his records no longer exist.  However, we note SCMO No. 192, dated 5 Oct 56, ordering the sentence executed, also indicated that the portion of the sentence pertaining to confinement at hard labor and forfeiture, which remained unexecuted as of 17 Oct 56, would be remitted.  We therefore select 17 Oct 56 as the applicant’s discharge date and recommend his BCD be upgraded to general as indicated below.

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THE BOARD RECOMMENDS THAT:

The pertinent military records of the Department of the Air Force relating to the APPLICANT be corrected to show that, on 17 October 1956, he was discharged with service characterized as general (under honorable conditions).

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The following members of the Board considered this application in Executive Session on 21 April 2005 under the provisions of AFI 36-2603:

			Panel Chair
			Member
			Member

The following documentary evidence relating to AFBCMR Docket Number BC-2005-00132 was considered:

   Exhibit A.  DD Form 149, dated 3 Jan 05, w/atchs.
   Exhibit B.  Record of Trial, w/atchs.
   Exhibit C.  Negative FBI Report.

                                   
                                   Panel Chair

AFBCMR BC-2005-00132