AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS
RECORD OF PROCEEDINGS
IN THE MATTER OF:
DOCKET NUMBER: 98-00522
COUNSEL: None
HEARING DESIRED: No
Applicant requests that his special court-martial conviction be
removed from his service record. 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. Vaughn E. Schlunz, Mr. Richard A.
Peterson, and Mr. Patrick R. Wheeler considered this application
on 29 September 1998 in accordance with the provisions of Air
Force Instruction 3 6 - 2 6 0 3 , and the governing statute, 10, U.S.C.
1552.
I
AUGH E. SCHLUNZ
Panel Chair
Exhibits :
A. Applicant's DD Form 149
B. Available Master Personnel Records
C. Advisory Opinion
D. AFBCMR Ltr Forwarding Advisory Opinion
DEPARTMENT OF THE AIR FORCE
AIR FORCE LEGAL SERVICES AGENCY ( A F L S A )
6 May 98
MEMORANDUM FOR AFBCMR
FROM: AFLSNJAJM (Maj Hogan)
1 12 Luke Avenue, Room 343
Bolling AFB, DC 20332-8000
Applicant’s request: In an application dated 20 Feb 98, the applicant requests that his
special court-martial conviction be removed from his service record. On 16 Apr 79, the
applicant’s court-martial sentence was approved. The application is past the three year statute of
limitations provided by 10 U.S.C. 1552(b) and the applicant provides no justification for filing
the application beyond the statute of limitations.
Facts of military j
Security Police Squadron,
contrary to his pleas, was tried and found guilty in a special court-martial of wrongfully selling
amphetamine in violation of Article 92 of the Uniform Code of Military Justice (UCMJ) and of
wrongful use of marijuana in violation of Article 134, UCMJ. The applicant was sentenced to 60
days confinement, 60 days hard labor without confinement, 60 days restriction to base,
forfeitures of $210.00 of his pay per month for four months and to be reduced to the grade of
Airman Basic.
an A1 C) was assigned to the
On 28 Mar 79, the applicant,
On 8 Aug 79, the applicant was involuntarily discharged under AFM 39-12, Chapter 2,
Section A, paragraph 2-4c for unsuitability (apathy, defective attitudes, or inability to expend
effort constructively). The applicant’s squadron commander recommended the characterization
of the applicant’s discharge be a general discharge. On 14 Aug 79,26 TRW/CC ordered the
applicant’s separation from the Air Force with an honorable discharge. On 22 Aug 79, the
applicant was separated from the Air Force with an honorable discharge.
Applicant’s contentions: The applicant believes the special court-martial conviction
should be expunged because he served the USAF honorably for three years and did his job well.
The applicant believes since he received an honorable discharge, the court-martial conviction
should be removed from his records. The applicant states that the offenses he was convicted of
are considered misdemeanors in the civilian courts. The applicant states that his military record
is preventing him from getting a good job. The applicant admits he got involved in parties where
there were alcohol and drugs when he was younger. The applicant does not believe it is fair that
he should be branded for a stupid mistake he made 19 years ago.
Discussion: AFI 36-2603, para 4.1 states that the applicant has the burden of providing
sufficient evidence of probable material error or injustice. The applicant has failed to indicate
any material error or injustice regarding his court-martial conviction. The applicant is not
proclaiming his innocence or complaining that his sentence was too harsh. The applicant
believes it to be unfair for his special court-martial conviction to remain in his records
permanently.
.
AFPAM 36-2607, para 5.1 states that the AFBCMR cannot change the verdict of a
courts-martial imposed after May 4, 1950. In courts-martial, the Board’s authority is limited to
changing the sentence received based on clemency. The Board has no authority to grant the
applicant’s request.
Recommendation: After reviewing the available records, I conclude that administrative
relief by this office is not possible. There are no legal errors requiring correction. I recommend
the Board deny the application based on the merits.
i
5
4 t I
’ LOREN S. PERLSTEIN
Associate Chief, Military Justice Division
Air Force Legal Services Agency
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