AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS 

RECORD OF PROCEEDINGS 

IN THE MATTER OF: 

DOCKET NUMBER:  97-01079 m COUNSEL:  NONE 
amm- 

HEARING DESIRED:  YES 

APPLICANT REQUESTS THAT: 

The  Court-Martial  and  conviction  be  removed  from  his  records; 
and,  the  grade  of  staff  s 
nt  he  earned  be  restored  and 
reflected on his WD AGO Form 
Enlisted Record and Report of 
Separation, dated 6 November 1945. 

APPLICANT CONTENDS THAT: 

The court-martial, in and of itself, was a IIKangaroo Court.Il  He 
had  no  defense  and  the  entire  incident  was  arranged  by  the 
Captain because  of  his racial  attitude.  Applicant  states this 
was a case of racial discrimination by a jealous officer. 

In support of his request, applicant submits a copy of a letter 
he forwarded to Congressman Peter J. Visclosky. 

Applicant's submission is attached at Exhibit A. 

STATEMENT OF FACTS: 

The relevant facts pertaining to this application, extracted from 
the applicant's available military records, are contained in the 
letters  prepared  by  the  appropriate  offices  of  the  Air  Force 
Office of Primary Responsibility (OPR).  Accordingly, there is no 
need to recite these facts in this Record of Proceedings. 

AIR FORCE EVALUATION: 

The  Associate  Chief,  Military  Justice  Division,  AFLSA/JAJM, 
states  that  since  records  of  applicantls  court-martial  are 
unavailable, very little is known about the court-martial action. 
f 1945 he was assigned to the motor 
Applica 
pool at 
On one particular Sunday morning, 
a soldier other than applicant took a truck from the motor pool 
and damaged it.  Applicant, who lived off base, knew nothing of 

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the incident until Monday morning when he reported for duty.  At 
that  time  his  commanding  officer,  with  whom 
licant  had 
in  March 
experienced  conflicts  since  being  assigned  to 
1944, informed him that he was being charged wi 
igence for 
the damaging of the vehicle and that he would be court-martialed. 

According to applicant, as he reported for duty the next day his 
commanding  officer  called  him  into  a  conference  room  where 
several other officers were seated.  His commander then read the 
charges against him.  Applicant was then asked to leave the room. 
' He was then later recalled before the officers.  They reportedly 
took a vote and, according to applicant, 'I1 was court-martialed." 
No  other information is available concerning these events other 
than this statement by the applicant. 

The available records indicate that many of  applicant's service 
records were likely destroyed in the St. Louis National Personnel 
Records Center fire of 12 July 1973.  Nearly all of the available 
records are applicant's service medical records.  One separation 
document  does  indicate  that  applicant  was  separated  from  the 
service for the convenience of the government on 6  November 1945. 
He  was  separated  with  an  honorable  discharge  at  the  rank  of 
private first class. 

There  is  a  presumption  of  regularity  that  is  afforded  all 
judicial  actions, including military  court-martials  in  time  of 
war.  The presumption operates to place the burden upon any party 
challenging  the  legality  of  the  action  to  come  forward  with 
evidence  of  error  or  irregularity.  In  this  case,  the  only 
evidence  concerning the nature of  the  court-martial comes  from 
the applicant, who is reciting his recollection of the nature of 
the proceedings from a distance in time of some fifty-two years. 
It is possible that some type of summary procedure may have been 
used since the alleged court-martial took place in time of war. 
However, the court-martial was held within the United States and 
it  is  inconceivable that  it  could have  proceeded  as  applicant 
describes. 
His  description  leaves  out  such  fundamental 
components as the entry of pleas and the taking of  evidence in 
the  presence  of  the  accused. 
Absent  reliable  evidence, 
applicant's description of  his  court-martial  proceeding  simply 
cannot be afforded any indicia reliability or accuracy.  There is 
no evidence brought forth by applicant to warrant the overturning 
of  his  court-martial  conviction.  There  are  no  legal  errors 
requiring  corrective  action. 
They  recommend  the  request  be 
denied. 

A copy of the Air Force evaluation is attached at Exhibit C. 

The  Chief,  Inquiries/BCMR  Section,  Airman  Promotion  Branch, 
AFPC/DPPPWB,  states  that  the  applicant's discharge  certificate 
reflects that he entered military service on 25 July 1941 and was 
discharged on 6 November 1945 in the grade of Private First Class 
( P F C ) .   This certificate also indicates 'the highest grade he held 
while on active duty was staff sergeant. 

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While  the  applicant  indicates  that  he  was  promoted  to  staff 
sergeant  in  1942,  there  is  no  documentation  in  his  records to 
reflect  the  exact  date  he  assumed  this  grade. 
There  is 
documentation  in  his  medical  file  dated  28  January  1943  which 
lists his grade as staff sergeant.  If the AFBCMR were to grant 
the applicant's request, there  is no documentation available to 
show what his date of rank would be for the staff sergeant grade 
as  indicated  above. 
They,  AFPC/DPPWB,  recommend  the  Board 
interpose  the  statute  of  limitations  and  deny  the  applicant's 
request.  However, if  the  Board  elects  to review the  case, it 
should be denied based on the lack of supporting documentation. 

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A copy of the Air Force evaluation is attached at Exhibit D. 

APPLICANT'S REVIEW OF AIR FORCE EVALUATION: 
Copies  of  the  Air  Force  evaluations  were  forwarded  to  the 
applicant on 2 September 1997 for review and response within 30 
days.  As  of  this date, no  response has  been  received by  this 
off ice. 

THE BOARD CONCLUDES THAT: 

The applicant has exhausted all remedies provided by existing 

1. 
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.  After 
a  thorough  review  of  the  evidence  of  record  and  applicant's 
submission, we  are not persuaded that the alleged court-martial 
and  conviction  should  be  removed  or, that  the  grade  of  staff 
sergeant he earned should be  restored.  His contentions are duly 
noted; however, we  do not  find these uncorroborated assertions, 
in  and  by  themselves, sufficiently persuasive  to  override  the 
rationale provided by  the Air  Force.  As  stated by  AFLSA/JAJM, 
there  is  a  presumption  of  regularity  that  is  afforded  all 
judicial  actions,  including military  court-martials in  time  of 
war.  The presumption operates to place the burden upon any party 
challenging  the  legality  of  the  action  to  come  forward  with 
evidence  of  error  or  irregularity. 
Due  to  the  fact  that 
applicant's records  were  likely  destroyed  in  the  fire  at  the 
National Personnel Records Center in 1973,  there is no evidence 
of  court-marital  action  other  than  the  information  applicant 
asserts.  Also, while the applicant states that he was promoted 
to staff sergeant in 1942, the only evidence to corroborate this 
fact is documentation in his medical file.  However, there is no 

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evidence available to show what his date of rank would be for the 
staff  sergeant  grade. 
We  therefore  agree  with  the 
recommendations  of  the  Air  Force  and  adopt  their  rationale 
expressed as the basis  for our decision that  the applicant has 
failed to sustain his burden that he has suffered either an error 
or an injustice.  Therefore, based on the available evidence of 
record, we  find no basis upon which to favorably consider this 
application. 

4.  The documentation provided with this case was sufficient to 
'give the Board a clear understanding of the issues involved and a 
personal  appearance,  with  or  without  counsel,  would  not  have 
materially  added to that understanding.  Therefore, the request 
for a hearing is not favorably considered. 

THE BOARD DETERMINES THAT: 

The  applicant  be  notified  that  the  evidence  presented  did  not 
demonstrate  the  existence  of  probable  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 13 May 1998, under the provisions of AFI 3 6 -  
2 6 0 3 .  

Mr. Vaughn E. Schlunz, Panel Chair 
Mr. Kenneth L. Reinertson, Member 
Mr. Michael P. Higgins, Member 

The following documentary evidence was considered: 

Exhibit A.  DD Form 149, dated 11 Mar 97, w/atchs. 
Exhibit B.  Applicant's Available Master Personnel Records. 
Exhibit C.  Letter, AFLSA/JAJM, dated 28 Jul 97. 
Exhibit D.  Letter, AFPC/DPPPWB, dated 18 Aug 97. 
Exhibit E.  Letter, AFBCMR, dated 2 Sep 97. 

Panel Chair 

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