AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS 

RECORD OF PROCEEDINGS 

IN THE MATTER OF: 

DOCKET NO:  97-03263 
COUNSEL:  None 
HEARING DESIRED:  Yes 

M I 4  19 

Applicant requests that evidence of his court-martial be removed 
from his records.  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). 
The  applicant's response  requesting  a  hearing  is  attached  at 
Exhibit E. 

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  adequately  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 applicant's case is adequately documented and it has not been 
shown that  a  personal  appearance  with  or without  counsel will 
materially  add  to  our  understanding  of  the  issue(s)  involved. 
Therefore, the request for a hearing is not favorably considered. 
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 Ms. Martha Maust, Mr.  Richard A.  Peterson 
and Mr.  Patrick R. Wheeler considered this application 4 August 
1998 in accordance with the provisions of Air Force Instruction 
36-2603 and the governing statute, 10 U.S.C. 1552. 

&THA  MAUS'f 
Panel Chair 

Exhibits : 
A.  Applicant's DD Form 149 
B.  Available Master Personnel Records 
C.  Advisory Opinion 
D. 
E.  Applicant's Response 

AFBCMR Ltr Forwarding Advisory Opinion 

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DEPARTMENT OF T H E  AIR  FORCE 
AIR  F O R C E  LEGAL  SERVICES AGENCY  (AFLSA) 

MEMORANDUM FOR AFBCMR 

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

3Mar98 

Applicant’s request:  “he applicant requested that evidence of his court-martial be 

removed .from his records.  The applicant’s request was not timely submitted within the three- 
year limitation provided by 10 U.S.C. 1552(b). 

licaqt was tried by general court-martial 
5 November 1947.  While in prison on other 
occasions at the United States Disciplinary 

charges (the amlicant was a pnsoner on 
Bar&&,  uncle;  at Ieast two names), he was charged with one count of stealing $221 .OO and one 
count of battery, in Violation of Articles of War 93 and 96, respectively.  The applicant pled not 
guilty to all counts.  The applicant was found guilty of all charges.  He was sentenced t0.a 
dishonorable discharge, forfeiture of all pay and allowances, and confinement for four years.  On 
24 Dec 1947, the Department of the Army, War Department, Board of Review examined the 
record of trial and found it to be legally sufficient to support the evidence.  However, it believed 
that two years of confinement would be more appropriate than the court’s sentence of four years 
and thus, remitted two years of the imposed confiement. 

Applicant’s Contentions:  The applicant believes the Board of Correction of Military 

Records (hereinafter “Board”) should review his request because he is “not guilty of the crime[s] 
charged.’;  He claims that “p jn 1956, 
discharge be given.”  He also 
recommended that this charge be 
claims (and the Board has confhned).that the applicant’s military personnel records were 
apparently lost or destroyed in the ifire at the National Personnel Records Center (NPRC) in St. 
Louis, Missouri in 1973. (An exhaustive search of cases by the Board failed to disclose evidence 
that the Board upgraded the applicant’s discharge.  NPRC reconstructed the applicant’s military 
personnel records to the best of its ability and found no record of an upgrade of discharge.  The 
record of trial was reconstructed.) 

f the [Adjutant General’s]  office 

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

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

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

the date “the error or injustice was discovered, or, with due diligence, should have been 
discovered by the applicant.” (AFR 31-1).  The applicant had three years to submit a timely 
application, starting on 12 December 1948, the date his BCD was executed.  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 is “a past exhaled ruler of the Elks - someone has gotten a copy of the 
court[-]martial papers and are [sic] attempting to have [him] removed fiom the order.”  There is 
nothing in the case fde that juswies the extraordmmy action of waiving the statute of limitations. 

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

9 1552(f),  (which amended the basic corrections board legislation), its ability to correct records 
related to court-martials is limited.  Specifically, Section 1552(f)(l)  perrnits the “correction of a 
record to reflect actions taken by reviewing authorities under [the UCMJI.” Additionally, 
Section 1552(f)(2)  permits the conection of records related to “action on the sentence of courts- 
martial for the purpose of clemency.”  Apart ftom these two limited exceptions, the effect of 
Section 1552(f) 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).  Since the subject court-martial conviction occurred before 5 May 1950, the Board does 
have authority to expunge it. 

The facts of this case do not warrant upgrading the applicant’s discharge or expunging 
the court-martial conviction fkom the applicant’s records.  The case file accurately reflects the 
action taken by reviewing authorities so correction of clerical or administrative mors as 
contemplated under 10 U.S.C.  5 1552(f)( 1) 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. 

While it is commendable that the applicant has apparently turned his life around and 

become “an exhaled ruler of the Elks,” one can logically infer that the court-marital punishment 
helped, at least in part, to motivate him to do so.  Furthermore, the imposed punishment remains 
today, as it was at the time it was executed, a completely accurate characterization of the 
applicant’s misconduct. The court-martial conviction and sentence were supported in both law 
and fact.  His inferred rehabilitation does not erase the fact that court members and the 
applicant’s commanders, &r  careful consideration, determined he deserved a dishonorable 
discharge. Restoring his discharge to honorable or expunging the court-martial fiom his records 
would diminish the value of the discharge structure and court-martial process for Air Force 
personnel, who unlike the applicant, served honorably.  Therefore, his application should be 
denied for being without merit. 

9703263 

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6. 

Recommendion:  After a review of the available records, I con  lude 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, 
& d V / 4  
LOREN S. PENSTEIN 
Associate Chief, Military Justice Division 
Air Force Legal Services Agency 

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9703263 

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