DOCKET NUMBER:  9 7 - 0 3 2 4 6  c COUNSEL:  None 

AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS 

IN THE MATTER OF: 

RECORD OF PROCEEDINGS 

AUG  1 4  l@l 

HEARING DESIRED:  NO 

Applicant  requests  his  bad  conduct  discharge  be  changed  to 
general  (under honorable conditions).  Applicant's submission is 
at Exhibit A. 

The  appropriate Air  Force  office  evaluated  applicant's request 
and provided  an advisory opinion to the Board  recommending the 
application  be  denied  (Exhibit C ) .   The  advisory  opinion  was 
forwarded to the applicant for review and response .(Exhibit D) . 
As of this date, no response has been received by this office. 

After  careful  consideration  of  applicant's  request  and  the 
available  evidence of  record, we  find  insufficient evidence  of 
error or injustice to warrant corrective action.  The facts and 
opinions stated in the advisory opinion appear to be based on the 
evidence  of  record  and  have  not  been  rebutted  by  applicant. 
Absent persuasive evidence applicant was denied  rights to which 
entitled,  appropriate  regulations  were  not  followed,  or 
appropriate  standards  were  not  applied,  we  find  no  basis  to 
disturb the existing record. 

Accordingly, applicant's request is denied. 

The Board staff is directed to inform applicant of this decision. 
Applicant should also be informed that this decision is final and 
will only be reconsidered upon the presentation of new relevant 
evidence  which  was  not  reasonably  available  at  the  time  the 
application was filed. 

Members  of  the  Board  Mr.  Michael  P.  Higgins,  Dr.  Gerald  B. 
Kauvar,  and  Mr.  Allen  Beckett  considered  this  application  on 
2 8   July  1 9 9 8   in  accordance  with  the  provisions  of  Air  Force 
Instruction 3 6 - 2 6 0 3 ,   and the governing statute, 10, U.S.C. 1 5 5 2 .  

Panel Chair 

Exhibits : 
A.  Applicant's DD Form 149 
B.  Available Master Personnel Records 
C.  Advisory Opinion 
D.  AFBCMR Ltr Forwarding Advisory Opinion 

DEPARTMENT O F  THE AIR  FORCE 
A I R   FORCE LEGAL SERVICES AGENCY  (AFLSA) 

M E M O W U M  FOR AFBCMR 

-  FROM:  AFLSNJAJM (Major Miller) 
112 Luke Avenue, Room 343 
Bolling Air Force Base, DC 20332-8000 

6 Mar 98 

Applicant’s request:  The applicant requested that his bad conduct discharge (BCD) be 

upgraded to general under honorable conditions.  The applicant’s request was not timely 
submitted within the three-year limitation provided by 10 U.S.C. 1552(b). 

action:  The applicant was tried by special court-martial 
Force Base, -on 
le 92, for drawing and aiming a revolver at the head of a 

17-1 8 Sept 1974.  He was charged 
conv 
with 
senior non-commissioned officer (NCO) and failure to obey a l a m  order.  He was also charged 
under Article 128, UCMJ, for assaulting two NCO superiors.  The applicant pled not guilty to all 
charges and was found guilty of all counts except the failure to obey order specification.  The 
GCM convening authority disapproved the finding of guilty for one of the two assault charges. 
“he applicant was sentenced to a BCD and was reduced in rank to ainnan basic. 

Applicant’s Contentions:  The applicant believes the Board of Correction of Military 
Records (hereinafter “Board’) should review his request because “[a]fter  living with this 
punishment for 23 years while at the same time draft evaders are living free under Presidential 
pardon, I feel I do deserve consideration for review.” He feels that the court members did not 
know they could adjudge a lesser discharge than a bad conduct discharge.  His support for this 
contention is that “[tJhis is evident by the clemency recommendations made at the time of 
sentencing .” 

Discussion:  There are two issues in this application.  The first is whether the Board 

should waive the three-year statute of limitations.  If the Board does waive the requirement, the 
second issue is whether the Board should upgrade the applicant’s discharge. 

Applicant’s requesting correction of their military records have three years to do so from 

the date “the error or injustice was discovered, or, with due diligence, should have been 
discovered by the applicant.”  AFR 3 1 - 1  The applicant had three years to submit a timely 
application, starting on 18 Sept 1974, the date of the court-martial order which executed his 
BCD.  Title 10, United States Code, Section 1552 provides that the Board can waive the three- 
year requirement if it is in the interest of justice.  The applicant states that it is in the interest of 
justice to waive the statute of limitations because he “did not know there was a three year limit to 

I 

9703246, . 

apply for a review.”  There is nothing in the case file that justifies the extraordinary action of 
waiving the statute of limitations. 

Even if the Board decides to waive the three-year requirement, under 10 U.S.C. 

5 1552(f),  (which amended the basic corrections board legislation), its ability to correct records 
related to court-martials is limited.  Specifically, Section 1552(f)(  1) permits the ‘‘correction of a 
record to reflect actions taken by reviewing authorities under [the UCMJJ”  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 15520 is that the Board is without authority to reverse, set aside, or otherwise expunge 
a court-martial conviction which occurred on or after 5 May 1950 (the effective date of the 
UCMJ). 

The facts of this case do not warrant an upgrade of the applicant’s discharge.  The case 
file accurately reflects the action taken by reviewing authorities so correction of clerical or 
administrative errors as contemplated under 10 U.S.C.  5 1552(f)(l) is unnecessary.  Clemency 
under Section 1552(f) is not appropriate because the applicant has submitted no evidence that his 
court-martial was improperly convened or conducted.  Under Rules for Courts-Martial (RCM) 
201(f)(2)03)(I):  “Upon a finding of guilty, special courts-martial may adjudge, . . . any 
punishment authorized under RCM 1003, except . . . dishonorable discharge.”  The.only other 
kind of discharge (other than dishonorable) addressed under RCM 1003 is a bad conduct 
discharge.  See RCM 1003@)(9)(  c). 

The applicant seems to be conhsed by the judge’s statement to members as follows: 

that although you have no authority to adjudge a suspension of a punitive 
discharge, if it is a part of your sentence, you may recommend such 
suspension in a subsequent clemency request.  However, you must keep in 
mind in deliberations on the sentence, such recommendations will in no 
way be binding on the convening authority or higher authority. 
Therefore[,] before you adjudge a punitive discharge[,] you must be 
satisfied that it is appropriate punishment even if the convening authority 
or higher authority refuses to adopt your recommendation for suspension. 
(Record of Trial at p. 201) 

Just because the members had authority in a clemency situation to recommend 

suspension of the BCD, it does not follow that they had authority to sentence the applicant to a 
lesser discharge.  The only “lesser” discharge a special court-martid may adjudge is no 
discharge.  Special courts-martial cannot adjudge discharge under other than honorable 
conditions, under honorable conditions (general), or general discharges.  These three types of 
discharges are governed by administrative discharge procedures. 

The Appellate Military Judge and Chief Appellate Military Judge did not recommend 
clemency because recommendations were ‘‘generally mfhvorable, and while the GCM 
considered a commutation or suspension, it was decided to let the sentence stand.”  The United 

9703246 

States Air Force Court of Military Review approved the findings of guilty and the sentence on 5 
Mar  1975. 

In sum, the applicant's BCD should not be disturbed since his underlying misconduct 
supports such a discharge. The court-martial conviction and sentence were supported in both 
law and fact. 

Recommendation:  After a review of the available records, I conclude that 

administrative relief by this office is not possible or appropriate.  Since the application was 
untimely filed, I recommend that the Board interpose the statute of limitations. 

LOREN S. PERLSTEIN 
Associate Chief, Military Justice Division 
Air Force Legal. Services Agency 

9703246