RECORD OF PROCEEDINGS AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS IN THE MATTER OF: DOCKET NUMBER: BC-2011-00145 COUNSEL: NONE HEARING DESIRED: NO _________________________________________________________________ APPLICANT REQUESTS THAT: His bad conduct discharge (BCD) be upgraded. _________________________________________________________________ APPLICANT CONTENDS THAT: His court-martial was conducted without an Article 32 hearing as required by the Uniform Code of Military Justice (UCMJ). His rights were further denied because his court martial board was made up of only officers when he had the right to have enlisted men or women on the board. He only pled guilty to the charges on the advice of his lawyer. He was told that if he got a “bad discharge,” it would be taken care of and he would probably be out of confinement very quickly. If the Article 32 had been part of his court-martial, the case would have been thrown out due to lack of evidence. The Article 32 hearing suddenly surfaced at the retrial; however, the evidence favored him. The two major “victims” for the prosecution could not be found. He is an elderly sick veteran, who is seeking an upgrade in order to receive veterans benefits. In support of his appeal, the applicant provides a statement from a Veteran’s counselor, a copy of his DD Form 293, Application for the Review of Discharge from the Armed Forces of the United States, five character references, a letter of appreciation, and a Doctor’s Evaluation Aid & Attendance Quick Form. The applicant’s complete submission, with attachments, is at Exhibit A. _________________________________________________________________ STATEMENT OF FACTS: On 7 Jan 58, the applicant was tried by general court-martial for assault with intent to produce grievous bodily harm and communicating a threat. He pled guilty to the charges and specifications and was sentenced to a dishonorable discharge, two years confinement, and forfeiture of all pay and allowances. On 13 Mar 58, the Air Force Board of Review affirmed the findings of guilty and the sentence. The applicant appealed to the United States Court of Military Appeals on 5 May 58. The Court affirmed the findings of guilty but reversed and set aside the decision. The convening authority ordered a rehearing on the sentence. On 17 Sep 58, the rehearing was convened and the applicant was sentenced to a bad conduct discharge (BCD), confinement for seven months. He was credited with confinement for the period 7 Jan 58 to 29 Aug 58, which he had already served. On 27 Oct 58, the Air Force Board of Review affirmed the sentence from the rehearing. The applicant’s BCD was ordered to be executed on 31 Oct 58. Pursuant to the Board’s request, the Federal Bureau of Investigation (FBI) provided a copy of an Investigative Report, which is at Exhibit C. On 14 Jun 11, a copy of the FBI Investigative Report and a request for post-service information was forwarded to the applicant for review and comment within 30 days. In response, the applicant’s advocate provides an expanded statement detailing the applicant’s post military life (Exhibit H). _________________________________________________________________ AIR FORCE EVALUATION: AFLOA/JAJM recommends denial. Although they were not able to review the record of trial in this case, and due to the age of the case, there was no information regarding the court-martial or rehearing in the Air Force Automated Military Justice Analysis and Management System, the applicant’s personnel records included some information about the court-martial and rehearing, to include the Reviews of the Staff Judge Advocate. The Review of the Staff Judge Advocate reflects the applicant was advised to the meaning and effect of his guilty pleas; he maintained his guilty plea. After the findings the applicant made an unsworn statement through counsel regarding the incident. The applicant’s description of the incident raised questions of self defense and the applicant’s counsel was questioned on the issue of self defense. The defense counsel indicated he was aware of the situation and that was just a way of stating it as far as the applicant was concerned. Therefore, the Staff Judge Advocate determined the applicant’s defense counsel was a qualified and certified counsel and was well aware of and fully explored all possible defense strategies. Thus, the reviewer found the applicant’s guilty pleas to be prudent. The applicant, during presentencing of the rehearing, indicated he pled guilty at his original trial because his defense counsel advised him to. The defense counsel made an unsworn statement on behalf of the applicant at the rehearing alleging that a guilty plea could not have ever been proven, at least in the case of the woman the applicant allegedly threatened to kill because she was not there. In the Staff Judge Advocate review of the rehearing, the applicant and his counsel tried to show the applicant’s guilty plea at the original trial was inadvertent. The Review pointed out that an accused is not permitted to change his plea from guilty to not guilty during a rehearing on the sentence, nor can the law officer enter a plea of not guilty on his behalf. The final recommendation was that the sentence be approved and adjudged. The applicant and counsel alleged the applicant’s court-martial was unfounded or incorrect because an Article 32 hearing did not precede the court-martial. Since the Record of Trial was not accessible for this case it cannot be determined what happened with the Article 32 hearing. However, it is incorrect to state that every general court-martial must be preceded by an Article 32 hearing. Just as an accused person has a right to an Article 32 hearing, they also have a right to waive a hearing. The applicant’s case received several reviews from the Staff Judge Advocate, the Air Force Board of Review and Court. Although there was no mention of an Article 32 hearing or an issue with the Article 32 hearing of this case, there is strong circumstantial evidence that this case either had a hearing or a proper waiver of a hearing. The counselor further alleges the applicant’s rights were “further denied” due the court-martial being comprised of only officers. Enlisted members have a right to have up to one-third of the panel be made up of enlisted members. However, the enlisted member can also choose to have their case decided by a panel of officers or by a military judge. The applicant’s personnel records do not indicate his rights were denied in his request for panel members. Furthermore, no documentation has been provided to show the applicant was only given the choice of a panel consisting of only officer members. Based on the available records and the documentation provided; the applicant’s court-martial and rehearing appear to have been processed in accordance with the Air Force policy and the governing regulations. The complete AFLOA/JAJM evaluation is at Exhibit D. _________________________________________________________________ APPLICANT'S REVIEW OF AIR FORCE EVALUATION: The applicant’s advocate notes the court-martial was filled with errors and did not provide adequate due process. The advisory opinion is misguided and it is apparent that no one has given the applicant the courtesy of reviewing his court-martial records. The excuse given was there were no court-martial records available, only his personnel files. The Veteran’s counsel notes the opinion stated he was critical of the retrial, when in fact he stated the retrial was fairer and almost corrected the wrong against the applicant by the Air Force. Someone should have read what he stated in his initial statement and addendum, rather than making another rush to judgment. It is difficult to believe that those who were responsible for reviewing the court-martial records and documents did not ask themselves why there was a need for a retrial and why the outcome of the retrial was in favor of the applicant. Ultimately, there was no Article 32 hearing, the board was comprised of only officers, and the applicant was not provided a bilingual defense counsel or interpreter The opinion writer stated they did not have access to the court- martial records and cannot make a definitive decision regarding the Article 32, and they further claim that an Article 32 was not required prior to the court-martial or that the applicant could have waived the Article 32. These statements are incorrect. The opinion writer stated when the court-martial was reviewed the Article 32 was not mentioned, why then have a retrial and the sudden appearance of an Article 32 and the use of it. The applicant’s legal counsel was not qualified because he did not submit a self defense argument, or that the applicant could have requested an all officer panel, or fact the attorney did not see the need for an interpreter. Also, the alleged victim did not testify at the court-martial. The applicant’s complete response is at Exhibit F. _________________________________________________________________ FINDINGS AND CONCLUSIONS OF THE BOARD We have carefully reviewed the applicant’s submission and the evidence of record and do not find a sufficient basis to excuse the untimely filing of this application. 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, Air Force Board for Correction of Military Records. The applicant has not shown a plausible 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. _________________________________________________________________ DECISION OF THE BOARD: 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-2011-00145 in Executive Session on 6 Oct 11, under the provisions of AFI 36-2603: , Panel Chair , Member , Member The following documentary evidence was considered: Exhibit A. DD Form 149, dated 25 Mar 11, w/atchs. Exhibit B. Applicant's Master Military Personnel Records. Exhibit C. FBI Investigative Report. Exhibit D. Letter, AFLOA/JAJM, dated 10 May 11. Exhibit E. Letter, SAF/MRBR, dated 20 May 11. Exhibit F. Letter, Applicant’s Advocate, dated 12 Jun 11. Exhibit G. Letter, AFBCMR, dated 14 Jun 11. Exhibit H. Letter, Applicant’s Advocate, undated. Panel Chair