AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS 

RECORD OF PROCEEDINGS 

IN THE MATTER OF: 

DOCKET NUMBER:  9 8 - 0 0 9 4 1  
COUNSEL:  NONE 

j i j ~ ~  

3 

- 

HEARING DESIRED:  NO 

Applicant requests that his bad conduct 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 Board staff is directed to inform applicant o E   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 
15 October 1 9 9 8 ,   in accordance with the provisions of Air Force 
Instruction 36-2603 and the governing statute, 10 U.S.C. 1552. 

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 

DEPARTMENT OF THE  AIR  FORCE 
AIR  FORCE  LEGAL  SERVICES AGENCY  ( A F L S A )  

1 July 1998 

MEMORANDUM FOR AFBCMR 

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

SUBJECT: 

Applicant’s request:  The applicant requested a change in his bad conduct discharge 

(BCD) status.  His request was not timely submitted within the three-year limitation provided by 
10 U.S.C. 1552(b). 

Facts of military justice action:  The applicant was tried by general court-martial 

(GCM) convened at K-13 Air Base on 26 June 1952. He was tried and convicted on one count 
of larceny of 13 cases of beer and three counts of violation of a lawful regulation, in violation of 
Articles 121 and 92, Uniform Code of Military Justice, respectively.  He was sentenced to a 
BCD, total forfeitures, and confinement for one year.  The convening authority approved the 
sentence as adjudged on 24 July 1952.  On 26 September 1952, the Board of Review for the 
Department of the Air Force Office of the Judge Advocate General approved the findings of 
guilty.  The Board of Review affirmed the sentence (except for the confinement portion, which it 
reduced to six months) as being appropriate to the offenses of which the applicant was convicted. 
Because of the applicant’s youth and the character of his prior service, on 1 October 1952, the 
Judge Advocate General suspended execution of the BCD until the applicant’s release from 
confinement. 

Applicant’s Contentions:  The applicant believes the Board of Correction of Military 
Records (hereinafter “Board”) should review his request because the pay forfeiture in and of 
itself constituted enough punishment.  He states that all he did was sell 20 cases of green beer on 
the black market, that he paid for this crime for 50 years, and that at the time he committed the 
act, he was only 21 years old and was “foolish.” 

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 when 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 the 
BCD he has not been in trouble since this incident.  While the applicant alleges that he has made 
a successful adjustment to civilian life since his discharge from the Air Force, there is nothing in 
his post-service record 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 UCMJ] .”  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 
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). 

The facts of this case do not warrant upgrading the applicant’s discharge.  While it is 

commendable that the applicant has apparently turned his life around, one can logically infer that 
the court-martial punishment helped, at least in part, to motivate him to do so.  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. fj 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. 

The court-martial conviction and sentence were supported in both law and fact.  Court 
members and the applicant’s commander, after careful consideration, determined he deserved a 
BCD.  Restoring his discharge to honorable would diminish the value of the discharge structure 
for Air Force personnel, who unlike the applicant, served honorably.  Therefore, his application 
should be denied for being without merit. 

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