RECORD OF PROCEEDINGS AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS IN THE MATTER OF: DOCKET NUMBER: BC-2012-03436 COUNSEL: NONE HEARING DESIRED: NO ________________________________________________________________ APPLICANT REQUESTS THAT: His General (Under Honorable Conditions) discharge be upgraded to an Honorable discharge. ________________________________________________________________ APPLICANT CONTENDS THAT: He had the best intentions, but made a mistake and did no violence to anyone. He was a confused kid, but tried to do his best. He volunteered for military service, and volunteered for Vietnam. He went to Vietnam and got confused. He did go Absent Without Leave (AWOL), but voluntarily returned. The good in his record outweighs the bad. He has lived with and paid for this one mistake for 40 years of his life. Please do not make him pay for the rest of his life. Every man deserves a second chance. He is a homeless Veteran who turned 60 years old in November, and doesn’t have too many years left here on earth. Please don’t let him go to his grave with this on his record. He did volunteer when his country needed his help, and now he would appreciate your help. The applicant’s complete submission is at Exhibit A. ________________________________________________________________ STATEMENT OF FACTS: The applicant entered the Air Force on 10 May 71. On 15 Mar 73, the applicant’s commander notified him that he intended to impose non-judicial punishment (NJP) under Article 15 of the Uniform Code of Military Justice (UCMJ) for Violation of UCMJ Articles 86, 134, and 113. Specifically, the applicant was charged with failure to go at the time prescribed to his appointed place of duty, loitering at his post while posted as a sentinel, and sleeping on post while posted as a sentinel. The applicant acknowledged receipt, and his right to counsel and to submit matters in mitigation, extenuation, or defense. On 17 Mar 73, the applicant’s commander punished him for these offenses by reduction to the grade of Airman, restriction to base for 30 days, and forfeiture of $25.00. The applicant chose not to appeal. The case was reviewed and found to be legally sufficient. On 10 May 73, the applicant’s commander notified him that he intended to impose NJP for violation of UCMJ Article 86. Specifically, the applicant, without authority, was absent from the organization, and remained absent from on or about 4 May 73 until on or about 9 May 73. The applicant acknowledged receipt, his right to counsel, and to submit matters in mitigation, extenuation, or defense. The applicant’s commander punished him for this offense by reduction to Airman Basic, and forfeiture of $75.00 of pay per month for two months. The applicant chose not to appeal. The case was reviewed and found to be legally sufficient. On 3 Mar 75, a Special Court-Martial at Offutt Air Force Base Nebraska found the applicant guilty of two specifications of violating Article 86 of the UCMJ. Specifically, the applicant did, on or about 14 May 74, without authority absent himself from his organization, and remained absent until on about 23 May 74; and did, on or about 24 May 74, without authority, absent himself from his organization and remained absent until on or about 7 Apr 75. The applicant’s sentence for these convictions were to be discharged from the Air Force with a Bad Conduct Discharge (BCD), to be confined to hard labor for three months, to forfeit $175.00 per month for three months, and to be reduced to the grade of Airman Basic. Under 10 USC § 1552(f), the Board’s ability to correct records related to courts-martial is limited. Specifically, section 1522(f)(1) permits the correction of a record to reflect actions taken by a reviewing authority under the UCMJ. Additionally, the effect of section 1552(f)(2) is that the Board is without authority to reverse, set aside, or otherwise expunge a court- martial conviction that occurred on or after 5 May 1950 (the effective date of the UCMJ). Therefore, the Board cannot expunge the applicant’s court-martial conviction from his records, but may mitigate or set-aside his punishment based upon clemency. On 24 Oct 75, the applicant separated and was issued a General (Under Other Than Honorable Conditions) discharged. On 11 Jan 13, a request for post-service information was forwarded to the applicant for review and comment within 30 days. As of this date, no response has been received by this office (Exhibit D). ________________________________________________________________ ? 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 error or injustice. We took notice of the applicant's complete submission in judging the merits of the 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 provided no 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. In the interest of justice, we considered upgrading the discharge on the basis of clemency; however, we do not find the evidence presented is sufficient for us to recommend granting the relief sought on that basis at this time. Therefore, in the absence of evidence to the contrary, we conclude that no basis exists to grant the relief sought in this application. ________________________________________________________________ THE BOARD DETERMINES 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 the application. ________________________________________________________________ The following members of the Board considered AFBCMR Docket Number BC-2012-03436 in Executive Session on 12 Mar 13, under the provisions of AFI 36-2603: , Panel Chair , Member , Member ? The following documentary evidence pertaining to AFBCMR Docket Number BC-2012-03436 was considered: Exhibit A. DD Form 149, dated 17 Jul 12. Exhibit B. Applicant's Master Personnel Records. Exhibit C. Letter, AFBCMR, dated 11 Jan 13, w/atch.