RECORD OF PROCEEDINGS AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS IN THE MATTER OF: DOCKET NUMBER: BC-2009-00763 COUNSEL: NONE HEARING DESIRED: NO _________________________________________________________________ APPLICANT REQUESTS THAT: His bad conduct discharge (BCD) be upgraded to honorable. _________________________________________________________________ APPLICANT CONTENDS THAT: He suffered with acute alcoholism at the time of his discharge and has been in recovery for 47 years. The applicant provides no evidence in support of his appeal. A copy of the applicant’s complete submission is at Exhibit A. _________________________________________________________________ STATEMENT OF FACTS: On 27 December 1951, the applicant enlisted in the Regular Air Force in the grade of private (E-1). He was promoted to the grade of airman third class (E-2) effective and with a date of rank of 27 February 1952. In April 1952, the applicant received nonjudicial punishment under Article 15, Uniform Code of military Justice (UCMJ), for being drunk and disorderly. He received punishment consisting of reduction in grade to airman basic. In August 1952, he faced a summary court-martial for two specifications of missing a movement, in violation of Article 86, UCMJ. He pled guilty to the charges and specifications and was sentenced to confinement (at hard labor) for 30 days, and forfeiture of $50 pay. In October 1952, he faced a summary court-martial for wrongful appropriation of a U.S. Government motor vehicle, in violation of Article 121, UCMJ. He pled guilty and was sentenced to forfeiture of $57.50 pay per month for one month. In November 1953, he faced summary court-martial for being absent from his unit without authority, in violation of Article 86, UCMJ. He pled guilty and was sentenced to confinement (at hard labor) for 18 days and forfeiture of $30 pay. On 16 December 1953, he was tried at a special court-martial for one specification of willfully disobeying the order of a superior noncommissioned officer, in violation of Article 91, UCMJ, and one specification of failure to go to his appointed place of duty, in violation of Article 86, UCMJ. The applicant pled guilty to the charges and specifications and was sentenced by a panel of officers to a bad conduct discharge, confinement (at hard labor) for three months, and forfeiture of $55 per month for three months. On 14 February 1954, the convening authority approved the sentence from the special court-martial as adjudged. On 25 February 1954, the Air Force Board of Review approved the findings and sentence as adjudged. Neither the Judge Advocate General nor the applicant petitioned the United States Court of Military Appeals for review of the conviction; therefore, the findings and sentence became final and conclusive under the UCMJ. The applicant was separated with a bad conduct discharge on 21 April 1954. He served 1 year, 7 months, and 13 days on active duty. Pursuant to the Board’s request, the Federal Bureau of Investigation (FBI), Clarksburg, WV, provided a copy of an Investigation Report. On 18 June 2009, the applicant was given an opportunity to submit comments about his post service activities and the FBI Report (Exhibit E). As of this date, this office has received no response. _________________________________________________________________ AIR FORCE EVALUATION: AFLOA/JAJM recommends denying the applicant’s request to upgrade his discharge. JAJM states that under Title 10 United States Code (USC) Section 1552(f), which amended the basic corrections board legislation, the Air Force Board for Corrections of Military Record’s (AFBCMR) ability to correct records related to courts-martial, is limited. Specifically, Section 1552(f)(1) permits the correction of a record to reflect actions taken by reviewing authorities under the UCMJ. Additionally, Section 1552(f)(2) permits the correction of records related to action on the sentence of courts-martial for the purpose of clemency. Apart from these two limited exceptions, the effect of Section 1552(f) is that the AFBCMR is without authority to reverse, set- aside, or otherwise expunge a courts-martial conviction that occurred on or after 5 May 1950 (the effective date of the UCMJ). JAJM states the applicant has identified no error or injustice related to his prosecution or the sentence. An examination of the Record of Trial indicates the applicant was afforded all of the procedural rights offered by the court-martial and appellate process. The applicant pled guilty to the offenses and the military judge ensured the applicant understood the meaning and effect of his pleas and the maximum punishment that could be imposed if his guilty pleas were accepted by the court. The applicant made a sworn statement in his own behalf. The court members took all of these factors into consideration when imposing the applicant’s sentence. His sentence was well within the legal limits and was an appropriate punishment for the offenses committed. This is especially true considering this was his fourth court-martial conviction in less than two years in the Air Force. JAJM states that while clemency may be granted, the applicant has not presented any information demonstrating such action to be appropriate. Additionally, clemency in this case would be unfair to those individuals who honorably served their country while in uniform. The complete JAJM evaluation is at Exhibit C. _________________________________________________________________ APPLICANT'S REVIEW OF AIR FORCE EVALUATION: A copy of the Air Force evaluation was forwarded to the applicant on 22 May 2009 for review and comment within 30 days. As of this date, this office has received no response. _________________________________________________________________ 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 probable error or injustice. The applicant’s discharge had its basis in his trial and conviction by a court-martial and he has provided no evidence showing that the sentence exceeded the maximum punishment allowable based on the offense of which he was convicted. We are constrained to note that, 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. There is nothing in the evidence provided which would lead us to believe that a change to the actions of any of the reviewing officials is warranted. Furthermore, we do not find clemency is appropriate in this case since the applicant has failed to provide any evidence concerning his post-service activities. Therefore, the applicant’s request is not favorably considered. _________________________________________________________________ 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 this application in Executive Session on 18 August 2009, under the provisions of AFI 36-2603: , Panel Chair , Member , Member The following documentary evidence was considered in connection with AFBCMR Docket Number BC-2009-00763: Exhibit A. DD Form 149, dated 25 Feb 09. Exhibit B. Applicant's Master Personnel Records. Exhibit C. Letter, AFLOA/JAJM, dated 13 May 09. Exhibit D. Letter, SAF/MRBR, dated 22 May 09. Exhibit E. Letter, AFBCMR, dated 18 Jun 09, w/atchs. Panel Chair