RECORD OF PROCEEDINGS AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS IN THE MATTER OF: DOCKET NUMBER: BC-2013-03788 COUNSEL: NONE XXXXXXX HEARING DESIRED: NOT INDICATED ________________________________________________________________ APPLICANT REQUESTS THAT: His Bad Conduct Discharge (BCD) be upgraded to honorable. ________________________________________________________________ APPLICANT CONTENDS THAT: After he served his time, he was transferred to Florida and on 6 May 1960, he was honorably discharged. In support of his request, the applicant provides a copy of his Certification of Military Service. His complete submission, with attachment, is at Exhibit A. ________________________________________________________________ STATEMENT OF FACTS: The applicant served in the Air Force from 2 Sep 1955 through 22 May 1957. His service was terminated by a BCD. Pursuant to the Board's request, the Air Force Office of Special Investigation determined a criminal record does not exist. On 25 Apr 2014, 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 C). ________________________________________________________________ AIR FORCE EVALUATION: AFLOA/JAJM states that if AFPC confirms that the member received an honorable discharge, the Board should set-aside his BCD. On 18 Jan 1957, a special-court martial convicted the applicant, in accordance with his plea, of absenting himself from his organization from 15 Sep 1956 to 3 Jan 1957 without proper authority, in violation of Article 86, Uniform Code of Military Justice. The member was sentenced to be discharged from the service with a BCD, to forfeit $55.00 per month for six months, and to be confined at hard labor for six months. On 25 Jan 1957, the convening authority approved the BCD, forfeiture of $55.00 per month for five months, and confinement for five months. On 26 Feb 1957, the Air Force Board of Review found the approved finding of guilty and the sentence correct in law and fact. On 22 Apr 1957, the convening authority ordered the sentence executed, but suspended the BCD for the period of confinement and 12 months thereafter, at which time the BCD would be remitted unless sooner vacated. There is nothing within the record of trial indicating that the suspended BCD was ever vacated. Therefore, if AFPC confirms that the member received an honorable discharge, we believe the Board should set-aside BCD. The complete JAJM evaluation is at Exhibit D. AFPC/DPSOR recommends denial. Based on the presumption of regularity, the discharge was consistent with the procedural and substantive requirements of the discharge instruction and was within the discretion of the discharge authority. The applicant did not provide any evidence that an error or injustice occurred with the processing of his discharge. They cannot confirm the circumstances and facts surrounding the applicant's discharge and must rely on the information provided by the Military Justice Division regarding the court-martial and the presumption of regularity regarding the discharge. The complete DPSOR evaluation is at Exhibit E. ________________________________________________________________ APPLICANT'S REVIEW OF THE AIR FORCE EVALUATION: On 14 Mar 2014, copies of the Air Force evaluations were forwarded to the applicant for review and comment within 30 days. As of this date, no response has been received by this office (Exhibit F). ________________________________________________________________ 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 note this Board is without authority to reverse, set aside, or otherwise expunge a court-martial conviction. Rather, in accordance with Title 10, United States Code, Section 1552(f), our actions are limited to corrections to the record to reflect actions taken by the reviewing officials and action on the sentence of the court- martial for the purpose of clemency. We find no evidence which indicates the applicant’s service characterization, which had its basis in his court-martial conviction and was a part of the sentence of the military court, was improper or that it exceeded the limitations set forth in the UCMJ. We note that on 22 Apr 1957, the convening authority ordered the sentence executed, but suspended the BCD for the period of confinement and 12 months thereafter, at which time the BCD would be remitted unless sooner vacated. However, there is nothing within the record of trial indicating that the suspended BCD was ever vacated. Should the applicant provide the evidence noted above we would be willing to review his case for possible reconsideration. We considered upgrading the discharge on the basis of clemency; however, after considering the applicant's overall quality of service, the court-martial conviction which precipitated the discharge, the seriousness of the offenses of which convicted, and noting the lack of documentation pertaining to his post-service activities, we cannot conclude that clemency is warranted. In view of the above, we cannot recommend approval based on the current evidence of record. ________________________________________________________________ THE BOARD DETERMINES THAT: The applicant be notified that the evidence presented did not demonstrate the existence of material error or injustice; that the application was denied without a personal appearance; and that 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 BC-2013-03788 in Executive Session on 5 Jun 2014, under the provisions of AFI 36-2603: , Chair , Member , Member ? The following documentary evidence pertaining to AFBCMR BC-2013-03788 was considered: Exhibit A. DD Form 149, dated 9 Aug 2013, w/atch. Exhibit B. Applicant's Master Personnel Records. Exhibit C. Letter, AFBCMR, digitally signed 25 Apr 2014, w/atch. Exhibit D. Letter, AFLOA/JAJM, dated 5 Feb 2014. Exhibit E. Letter, AFPC/DPSOR, dated 24 Feb 2014. Exhibit F. Letter, SAF/MRBR, dated 14 Mar 2014. 4 5