RECORD OF PROCEEDINGS AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS IN THE MATTER OF: DOCKET NUMBER: BC-2010-01039 COUNSEL: NONE HEARING DESIRED: NO _________________________________________________________________ APPLICANT REQUESTS THAT: His court-martial conviction be expunged from his records. _________________________________________________________________ APPLICANT CONTENDS THAT: After the Air Force Discharge Review Board (AFDRB) upgraded his discharge in 1969, all records pertaining to his court-martial should have been expunged. The records should be expunged in accordance with the AFDRB directive. In support of his request, the applicant provides copies of his DD Form 214, Certificate of Release or Discharge from Active Duty, SF 180, Request Pertaining to Military Records, AF Form 1226, Record of Previous Convictions and Time Lost, and DD Form 553, Absentee wanted by the Armed Forces; letters from a lawyer, the National Personnel Records Center and the Board of Review Decision. The applicant’s complete submission, with attachments, is at Exhibit A. _________________________________________________________________ STATEMENT OF FACTS: The applicant entered the Air Force on 30 November 1960 and was promoted to the grade of airman second class. Beginning in August 1962, the applicant was absent without leave (AWOL) on four separate occasions for a total of 27 days. On 20 November 1962, the applicant was tried by Special Court- Martial and charged with three specifications of AWOL in violation of Article 86, Uniform Code of Military Justice (UCMJ). The applicant pled guilty to the offenses. The court sentenced the applicant to a bad conduct discharge. On 9 January 1963, the convening authority approved the findings and sentence as adjudged. A judge advocate reviewed the applicant’s conviction and found no legal or factual errors. On 26 December 1962, the Air Force Board of Review affirmed the conviction and sentence. On 12 May 1969, the applicant applied for an upgrade of his discharge through the AFDRB. On 11 August 1969, the applicant appeared before the AFDRB and explained under oath that he had purposely gone AWOL to force the Air Force to separate him. He informed the AFDRB that he was 18 years old during the time of the misconduct, experienced marriage and financial problems and no longer wanted to remain in service. He remarried in 1967 and had a successful post-conviction work history as a private pilot. On 15 August 1969, the AFDBR recommended the applicant’s discharge be upgraded to an honorable. On 28 August 1969, the Secretary of the Air Force directed the applicant’s discharge be upgraded to honorable. _________________________________________________________________ AIR FORCE EVALUATION: AFLOA/JAJM recommends denial. JAJM states the applicant has not provided any evidence the AFDRB ordered his records to be expunge. He also does not deny having been AWOL in the fall of 1962 or claim any error related to the conviction itself. Under 10 U.S.C, section 1552(f), which amended the basic corrections board legislation, the Board’s ability to correct records related to court-martial, is limited. Specifically, section 1552(f)(1) permits the correction of a record to reflect actions taken by a reviewing authority 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 Board is without authority to reverse, set aside, or otherwise expunge a court-martial conviction that occurred on or after 5 May 1950. 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 28 May 2010, for review and comment within 30 days. As of this date, this office has received no response (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 that would warrant favorable consideration of the applicant's stated request. As noted by AFLOA/JAJM, the Board is without authority to reverse, set aside, or otherwise expunge a court-martial conviction that occurred on or after 5 May 1950. Therefore, we agree with AFLOA/JAJM and adopt its rationale as the basis for our conclusion that the applicant has not been the victim of an error or injustice regarding his court-martial. Based on the above, we find no evidence of error or injustice; 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 Docket Number BC- 2010-01039 in Executive Session on 15 July 2010, under the provisions of AFI 36-2603: The following documentary evidence was considered: Exhibit A. DD Form 149, dated 7 Mar 10, w/atchs. Exhibit B. Applicant's Master Personnel Records. Exhibit C. Letter, AFLOA/JAJM, dated 28 Apr 10. Exhibit D. Letter, SAF/MRBR, dated 28 May 10. Panel Chair