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AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS 

RECORD OF PROCEEDINGS 

IN THE MATTER OF: 

DOCKET NUMBER:  98-00604 
COUNSEL: 

HEARING DESIRED: 

Applicant requests that his discharge be upgraded to a general or 
an honorable.  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 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 Mr. Robert D. Stuart, Mr.  Henry Romo, Jr., 
and  Mr.  Richard  A.  Peterson  considered  this  application  on 
1 5   October 1998,  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 .  

ROBERT D. STUART 
Panel Chair 

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

D E P A R T M E N T  OF THE  AIR  FORCE 
A I R   FORCE  LEGAL  SERVICES  AGENCY  (AFLSA) 

MEMORANDUM FOR AFBCMR 

FROM:  AFLSA/JAJM (Lt Col Billett) 
112 Luke Avenue, Room 343 
Bolling AFB DC 20332-8000 

24 Jun 98 

Applicant’s request: In an application dated 19 Feb 98, applicant asks that his punitive 
discharge (received as a result of general court-martial action) be upgraded to either a general or 
an honorable discharge.  On the application he lists the type of discharge he received as “OTH’ 
meaning other than honorable.  The available records clearly indicate that applicant received a 
dishonorable discharge from the general court and that portion of his sentence was upheld on 
appeal and ultimately executed by the convening authority.  However, the DD Form 214 
submitted with the application package states “under other than honorable conditions” in the 
block indicating character of service.  The court-martial was held on 27 and 28 Feb 58.  All post- 
trial review and final approval of the dishonorable discharge were accomplished on 16 Sep 58. 
Thus, the application was not timely filed within the three year limitation period provided by  10 
U.S.C. 1552(b). Applicant acknowledges his failure to meet this time requirement on the 
application form.  He states that the Board should find it in the interest of justice to consider the 
application because of his advanced age and his lack of knowledge as to his right to make 
application earlier. 

Facts of military justice action:  On 27 and 28 Feb 58 a general court-martial convened 
at Tokyo International Airport.  One charge and underlying specification alleged that applicant 
wrongfully used morphine on 19 Aug 57 in violation of Article 134, UCMJ.  An additional 
charge and specification under Article 134 alleged that applicant wrongfully used morphine on 
22 Dec 57.  Applicant pled guilty to the first charge and specification and chose to contest the 
second.  After hearing evidence the court, consisting of officer members, found applicant guilty 
of the second charge and specification. After the presentation of appropriate matters relating to 
sentencing, the court sentenced applicant to “six months at hard labor, to be dishonorably 
discharged from the service and to forfeit all pay and allowances.”  The court-martial was called 
back into session on 4 March 58 to address an ambiguity in the sentence as announced on 28 Feb 
58.  It was established on the record that the sentence actually arrived at by the court was 
confinement at hard labor for six months, to be dishonorably discharged from the service and to 
forfeit all pay and allowances.  This “corrected” sentence was formally announced on the record 
by the court president. 

The case subsequently went through the appellate process.  The initial approval of the 
sentence by the convening authority involved a reduction from total forfeitures to forfeiture of 

$71 .OO per month for six months.  Specific assignments of error were made to the Air Force 
Board of Review, one of which concerned the sentence modification scenario described above. 
The Board of review granted some relief to applicant but did not disturb that portion of the 
sentence adjudging a dishonorable discharge.  Applicant was informed of his right to submit a 
petition for a grant of review to the United States Court of Military Appeals but did not do so. 
On 16 Sep 58 the convening authority executed only so much of applicant’s sentence as included 
a dishonorable discharge and hard labor for three months. 

Applicant’s contentions: Applicant makes no specific claim of error or injustice in his 

case other than to state “I was not given right of due process.”  He refers only to the record of the 
case when asked to submit evidence in support of the application. 

Other matters: Applicant originally enlisted in the Air Force in June 1951.  He 

successfully completed a tour of duty on 19 Jun 55 and eventually reenlisted on 16 Aug 55 
after a short break in service.  At the time of the general court-martial applicant had one prior 
conviction by special court-martial for two specifications (under Article 134) of assault upon 
another airman. 

Discussion:  Several procedural irregularities took place in this case, both before and 

during the court-martial.  An issue was raised both at trial and appeal as to the appropriateness of 
an instruction to court members given by the law officer on the question of voluntariness of urine 
specimens obtained from applicant at the time of his apprehension.  The Board of review found 
merit in applicant’s argument and provided him relief in the form of a dismissal of the second 
charge and specification (the one litigated at trial).  Applicant also argued on appeal that the 
court-martial was not legally constituted at the time of the 4 Mar 58 “proceedings for correction’’ 
of the sentence.  After reviewing the facts and circumstances, the Board of Review found 
prejudicial error to applicant’s substantial rights and reassessed applicant’s sentence, finding the 
discharge and hard labor for three months appropriate.  Additionally, applicant argued on appeal 
that the law officer gave an erroneous sentencing instruction.  The Board of Review found no 
need for corrective action on this point as the error committed by the law officer actually worked 
to applicant’s benefit. 

The errors discussed above were all vigorously litigated on applicant’s behalf, both at 

trial and at the appellate level.  The record of trial and allied papers reveal no other irregularities 
affecting the substantial rights of applicant other than those already mentioned.  It appears, 
therefore that applicant was afforded adequate due process during both the trial and post-trial 
phases of his court-martial. Inasmuch as the Air Force Board of Review granted him all 
appropriate relief in 1958, and there is no evidence offered by applicant of any extraordinary 
circumstances taking place since then, there is no basis for applicant’s current request for 
correction of the character of his discharge. 

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

administrative relief by this office is not possible.  Applicant was afforded due process by the 

military justice system and 
offense for which he stood 
Board interpose the statute 

the current character of his discharge is appropriate considering the 
convicted and his service record.  Accordingly, I recommend that the 
of limitations and deny the requested relief. 

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