RECORD OF PROCEEDINGS AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS IN THE MATTER OF: DOCKET NUMBER: BC-2011-00292 COUNSEL: NONE HEARING DESIRED: NO _________________________________________________________________ APPLICANT REQUESTS THAT: 1. His under other than honorable conditions (undesirable) discharge be upgraded to general (under honorable conditions). 2. His last summary court martial be removed from his records. _________________________________________________________________ APPLICANT CONTENDS THAT: His problems began when he volunteered to go to Taiwan. He and the First Sergeant had a strained relationship, which caused him to become depressed. After drinking one night in town, he became intoxicated and took a swing at a noncommissioned officer (NCO) assigned with the Air Police. He was arrested and written up on four charges, drunk and disorderly, conduct unbecoming an airman, assault on an NCO, and resisting arrest. He received a summary court martial. While serving his 30-day confinement he was assigned as a change of quarters (CQ) runner. One evening he was told to sign out a government vehicle and to pick up an airman downtown. While leaving the base he picked up three airmen waiting for the bus to go into town. He was stopped by the Air Police for breaking confinement. He received a summary court martial for breaking restriction, misappropriation of a government vehicle, speeding, and overloading a jeep. All the charges were dropped except for the breaking restriction. After serving his 30-days of confinement, he was informed he was being recommended for an undesirable discharge. He does not want an upgrade to receive veteran’s benefits or any other benefits. He is 71 years old, and has been married almost 51 years, and would like it upgraded for his own personal reasons. In support of his request, the applicant provides a personal statement, copies of his DD Form 214, Report of Separation from the Armed Forces of the United States; DD Form 214, Armed Forces of the United States Report of Transfer or Discharge, a character letter, and a DD Form 293, Application for the Review of Discharge from the Armed Forces of the United States. The applicant's complete submission, with attachments, is at Exhibit A. _________________________________________________________________ STATEMENT OF FACTS: On 28 Jan 57, the applicant enlisted in the Regular Air Force for a period of four years. He was progressively promoted to the grade of airman third class. On 10 Apr 58, the applicant was notified by his squadron commander that he was recommending his discharge from the Air Force for unfitness. On 20 Mar 58, the applicant was convicted by a summary court martial for breaking restriction and wrongful appropriation of government property. The punishment imposed was a reduction to the grade of airman basic, 30 days of hard labor, and forfeiture of $50.00 pay. On 27 Mar 58, the applicant was convicted by a summary court martial for reckless driving and breaking restriction. The punishment imposed was 30 days of hard labor and forfeiture of $40.00 pay. Other disciplinary punishment included four Article 15 Punishments for failure to repair, destruction of private property/drunk and disorderly, failure to repair, and a uniform violation. On 15 Apr 58, the applicant acknowledged receipt of the discharge notification, and of his right to consult with legal counsel, present evidence and call witnesses in his own behalf, and appear before a board of officers. After consulting with counsel, the applicant waived his right to appear before a board of officers, and to submit statements in his own behalf. He understood if his request for discharge was approved that his separation from the Air Force could be under conditions other than honorable and he could receive an undesirable discharge. The base legal office reviewed the case and found it legally sufficient to support separation. On 10 Jul 58, the discharge authority approved the separation and directed a UOTHC discharge. On 17 Sep 58, the applicant was discharged under the provisions of AFR 39-17, Discharge of Airmen Because of Unfitness, and received an undesirable discharge. He served a total of 2 years, 1 month, and 11 days of active duty service. Pursuant to the Board’s request, the Federal Bureau of Investigation (FBI) provided a copy of an Investigative Report, which is at Exhibit C. On 1 Jun 11, a copy of the FBI report was forwarded to the applicant for review and comment within 30 days. At the same time, the AFBCMR staff offered the applicant an opportunity to provide information pertaining to his activities since leaving the service (Exhibit D). To date, a response has not been received. _________________________________________________________________ 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 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 relating to his summary court martial. 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), 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, and the applicant has provided no evidence to support this action. In addition, 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. We considered upgrading the discharge based on clemency; however, we do not find the evidence presented is sufficient to compel us to recommend granting the relief sought on that basis. Should the applicant provide statements from community leaders and acquaintances attesting to the applicant’s good character and reputation and other evidence of successful post-service accomplishments we would be willing to reconsider his appeal. In the absence of such evidence, favorable action on his request is not warranted. Therefore, based on the available evidence, we find no basis upon which to favorably consider this application. _________________________________________________________________ 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-2011-00292 in Executive Session on 21 Jul 11, under the provisions of AFI 36-2603: , Panel Chair , Member , Member The following documentary evidence was considered: Exhibit A. DD Form 149, dated 21 Jan 11, w/atchs. Exhibit B. Applicant's Master Personnel Records. Exhibit C. FBI Report of Investigation, dated 4 Apr 11. Exhibit D. Letter, SAF/MRBC, dated 1 Jun 11. Panel Chair