RECORD OF PROCEEDINGS AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS IN THE MATTER OF: DOCKET NUMBER: BC-2014-04969 COUNSEL: NONE HEARING DESIRED: NO APPLICANT REQUESTS THAT: His Bad Conduct Discharge (BCD) be upgraded to Honorable and his promotion to SSgt be reinstated. APPLICANT CONTENDS THAT: His BCD should be upgraded based on the fact his defense counsel was only appointed the day his trial started and was more interested in what the Court had to say, than defending his interests. The only question his defense counsel asked was “did he want to stay in the Air Force”. He believes defense counsel was either incompetent or completely disregarded the evidence submitted. Had he researched the case, he would have found that full restitution was made more than six month before the trial even started. He appealed the results of his court-martial in 1975 to the Staff Judge Advocate, in Amarillo AFB, Texas; only to be refused on grounds of “Timeliness”. The applicant’s complete submission, with attachments, is at Exhibit A. STATEMENT OF FACTS: The applicant initially entered the Regular Air Force on 16 Oct 47. On 21 Dec 56, the applicant accepted an Article 15, Nonjudicial Punishment, for wrongfully appropriated $18.35. He was reduced in grade to staff sergeant. The applicant did not appeal this punishment. On 13 Mar 58, the applicant was tried by a General court-martial and found guilty of uttering two worthless checks, forgery and larceny in violation of Articles 121, 123 and 134 of the Uniform Code of Military Justice. He was sentenced to a Bad Conduct Discharge, confined for 12 months at hard labor and total forfeitures of all pay and allowances for 12 months. On 23 May 58, the Air Force Board of Review modified the sentence to reflect a Bad Conduct discharge, 6 months confinement at hard labor and total forfeitures for 3 months and 22 days. On 15 Sep 58, the Court of Military Appeals denied the applicant’s petition for an appeal. On 29 Oct 58, the convening authority ordered the Bad Conduct discharged executed. On 31 Oct 58, Special Order - 1298, directed the applicant be separated with an Under Other Than Honorable Conditions discharge, effective 6 Nov 58. On 6 Nov 58, the applicant was furnished an Under Other Than Honorable Conditions discharge, and was credited with 10 years, 7 months, and 13 days of active service. The applicant’s DD Form 214, Armed Forces of the United States Report of Transfer or Discharge, reflects a character of service of “Other Than Honorable”. The remaining relevant facts pertaining to this application are contained in the memorandum prepared by the Air Force office of primary responsibility (OPR), which is attached at Exhibit D. AIR FORCE EVALUATION: AFLOA/JAJM recommends denial indicating there is no evidence of an error or an injustice. The applicant was tried by a general court-martial and found guilty of uttering two worthless checks, forgery and larceny in violation of Articles 121, 123 and 134 of the Uniform Code of Military Justice. On 13 Mar 58, the applicant was sentenced to be discharged with a Bad Conduct Discharge, confined for 12 months at hard labor and total forfeitures for 12 months. The convening authority disapproved one of the Article 134 specifications and disapproved the Article 121 larceny specification, but approved the lesser included offense of wrongful appropriation. On 23 May 58 the Air Force Board of Review found that forgery and wrongful appropriation in the case were multiplicious for punishment. That is, they should have been considered as one offense rather than evaluating them separately for purposes for punishment. As a result, the convening authority modified the sentence to a Bad Conduct discharge, 6 months confinement at hard labor and total forfeitures for 3 months and 22 days. The Court of Military Appeals denied the petition for appeal. On 29 Oct 58, the convening authority ordered the Bad Conduct discharged executed. The punishment approved by the convening authority was within the range of permissible punishments. The applicant was afforded all his appellate rights. The applicant did not submit any matters for consideration related to clemency. The applicant’s court- martial occurred in 1958 with final action that same year. A complete copy of the AFLOA/JAJM evaluation is at Exhibit D. APPLICANT'S REVIEW OF AIR FORCE EVALUATION: The applicant points out that his trial transcripts generate more questions than answers. In Oct 1957, he signed three statements: One for the appointed defense counsel; one for his squadron commander; one for the appointed investigation officer. All three of these signatures were after he met with the Bank Manager, who agreed to give him 10 days to make the delinquent checks good. The manager notified him that the money was received. None of this information was presented during his court-martial. His trial took place four months later in Apr 58. He received a new appointed defense council. He asks the Board to note that his situational awareness of the events leading up to and during the trial was limited by the fact he was an alcoholic. When testimony was given by the investigating officer and squadron commander, they confirmed that restitution was received, yet his defense attorney failed to determine when. After the trial, he was returned to active duty as an A1C; however, he pursued a discharge based on three main facts: If he remained in the Air Force, his wife threatened to leave him, he still had an alcohol problem, and finally he feared working on and being responsible for crew members of the B1 Bomber. 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 note that 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), actions by this Board 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 Uniform Code of Military Justice (UCMJ). We have considered the applicant’s overall quality of service, the court-martial conviction which precipitated the discharge, and the seriousness of the offenses to which convicted. However, we do not find the evidence presented is sufficient for us to conclude that the applicant’s post-service activities overcome the misconduct for which he was demoted and discharged. Therefore, in the absence of evidence to the contrary, we find no basis to recommend granting the relief sought. 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 this application. The following members of the Board considered AFBCMR Docket Number BC-2014-04969 in Executive Session on 25 Aug 15 under the provisions of AFI 36-2603: , Panel Chair , Member , Member The following documentary evidence pertaining AFBCMR Docket Number BC-2014-04969 was considered: Exhibit A. DD Form 149, dated 2 Dec 14, w/atchs. Exhibit B. Applicant's Master Personnel Records. Exhibit C. Clemency Information Bulletin, dated 5 Jan 15. Exhibit D. Memorandum, AFLOA/JAJM, dated 2 Apr 15. Exhibit E. Letter, SAF/MRBR, dated 29 May 15. Exhibit F. Letter, Applicant, dated 22 Jun 15. 1 2