AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS 

RECORD OF PROCEEDINGS 

IN THE MATTER OF: 

PEB 2 4 1999 

DOCKET NUMBER:  96-01136 
COUNSEL:  NONE 
HEARING DESIRED:  NO 

APPLICANT REQUESTS THAT: 
His  court-martial  conviction  be  overturned  and/or  his  general 
discharge be upgraded to honorable. 
His rank of sergeant (E-4) be restored. 
Negative  information  regarding.  his  lost  time,  reason  and 
authority  for  his  discharge, and  reenlistment  eligibility  (RE 
Code) ,  be  removed  from  his  DD  Form  214,  Armed  Forces  of  the 
United States Report of Transfer or Discharge. 
The effective date of his separation be changed. 

APPLICANT CONTENDS THAT: 
He believes his punishment was harsh and he was treated unfairly. 
He suffered from medical conditions, particularly Chronic Fatigue 
Syndrome and Exhaustion, which he believes resulted in him being 
unfairly punished. 
He truly believes that he  did his best  to serve his country in 
time  of  war.  Since his  discharge  from  the Air  Force, he  has 
worked his way  through college and he has a master's degree in 
Education  from Temple University.  He  has  also  had  no  trouble 
with civilian law enforcement agencies. 
In  support  of  his  appeal,  the  applicant  provides  a  personal 
statement,  a  copy  of  his  DD  Form  214,  and  post-service 
documentation. 
Applicant's complete submission is at Exhibit A. 

STATEMENT OF FACTS: 
The applicant enlisted in the Regular Air Force on 15 Jan 69 for 
a period of  four years in the grade of airman basic.  Prior to 
the matter under review, the applicant was progressively promoted 
to the grade of sergeant (E-4). 
Applicant's APR/EPR profile follows: 

PERIOD ENDING 
28 Feb 70 
21 Aug 70 
21 Feb 71 
21 Aug 71 
31 Dec 71 

EVALUATION 

On  29  Dec  71,  the  applicant  received  disciplinary  punishment 
under Article 15 for failure to go at the time prescribed to his 
appointed place of duty on or about 21 Dec 71 and 22 Dec 71.  He 
was reduced from the grade of sergeant to airman first class and 
ordered  to  forfeit  $50.00  per  month  for  two  months. 
The 
reduction to the grade of airman first class was suspended until 
27 Jun 72,  at which time, it was to be remitted without further 
However,  on  14  Apr  72,  the  commander  vacated  the 
act ion. 
suspended reduction based on the applicant's failure to go to his 
place of duty at the prescribed time on 1 Apr 72.  Based on this 
action, the applicant was reduced to the grade of  airman first 
class. 
On 3 May 72, the applicant received disciplinary punishment under 
Article 15 for being absent without leave (AWOL).  He was reduced 
in grade from airman first class to airman and ordered to perform 
extra duties for a period of 14 days. 
On  26  Jul  72,  the  applicant  was  convicted  by  special  court- 
martial of one specification of Article 91, UCMJ, for disrespect 
towards his  superior noncommissioned officer and  ten of  twelve 
specifications of Article  86,  UCMJ, for failure to go and AWOL 
from his duty assignment during periods of May  through Jul 72. 
He was sentenced to be confined at hard labor for six months, to 
forfeit two-thirds of his pay per month for six months, and to be 
reduced to the grade of airman basic.  The applicant successfully 
completed the Rehabilitation Program at Lowry AFB with a total of 
177  days  as  lost  time  due  to  his  military  confinement.  On 
18 Jan 73  the  Retraining  Classification Board  recommended  that 
the applicant be returned to duty and noted that with six months' 
service remaining and no intention by the applicant to reenlist, 
he would be separated under the provisions of AFM 39-10. 
On 23 Jan 73, the applicant was notified by his commander that he 
was being recommended for discharge with a general discharge. 

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AFBCMR 96-01136 

On 20  Feb 73,  legal authority found the discharge action to be 
legally  sufficient  and  recommended  that  the  applicant  be 
discharged with a general discharge. 
Applicant was discharged on 26  Apr 73 under the provisions of AFM 
39- 10  with a general  (under honorable conditions) discharge.  He 
was credited with 3  years, 9  months, and 1 9   days of active duty 
service. 
Pursuant  to  the  Board's  request,  the  Federal  Bureau  of 
Investigation, Washington, D.C., provided an investigative report 
which is attached at Exhibit C. 

AIR FORCE EVALUATION: 
The  Military  Justice  Division,  AFLSA/JAJM,  reviewed  this 
application  and  recommended  denial.  According  to  JAJM,  all 
matters presented by  the applicant were before his commander in 
1 9 7 3   when he  initiated discharge and directed separation with a 
general discharge.  His records-thoroughly discussed his court- 
martial  conviction,  confinement,  and  rehabilitation. 
Also 
documented  in  his  military  records  are  three  nonjudicial 
punishment  actions  occurring  prior  to  his  court-martial  which 
were identical to his subsequent court-martial charges. 
As  to  the  merits  of  the  applicant's  request  to  upgrade  his 
discharge to honorable as being unduly harsh and punitive to him 
at  this time, JAJM  indicated  that  no  legal error  or  injustice 
exists to warrant an upgrade.  While the applicant has bettered 
himself  through  advanced  education  and  seeks  eligibility  for 
specific  areas  of  employment,  this  alone  is  not  a  sufficient 
basis now to override matters considered relevant in 1 9 7 3   by the 
commander in making his decision as to the level of separation. 
A complete copy of the JAJM evaluation is at Exhibit D. 
The  Airman  Promotion  Branch,  AFPC/DPPPWB,  reviewed  this 
application and concurred with recommendation for denial made by 
AFLSA/JAJM.  DPPPWB  indicated that  a  review of  the applicant's 
records  reflects  that  while  serving  in  the  grade  of  sergeant 
(E-4), he  was  administered  an  Article  15  on  29  Dec  7 1   that 
consisted of a reduction to the grade of airman first class  ( E - 3 )  
which was suspended until 27  Jun 7 2 .   However, on 14 Apr 72,  his 
commander vacated the suspended reduction to airman first class 
based on the applicant's failure to go to his place of duty at 
the  prescribed  time  on  1 Apr  7 2 .  
Based  on  this  action, the 
applicant  was reduced  to the grade of  airman first class.  On 
3  May  72,  the applicant received a second Article  15 for being 
AWOL.  His punishment consisted of a reduction to the grade of 
airman and extra duties for a period of 1 4   days.  Based on these 
actions the applicant was  serving in the grade of  airman  (E- 2) 
when  he  received  the  court-martial  action  on  7  Sep  7 2 .  

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AFBCMR 96- 01136 

Therefore, if the AFBCMR  overturns his court-martial action, he 
would  only  be  entitled  to  have  his  former  grade  of  airman 
reinstated with an effective date and date of rank of  3 May  72. 
He would  not  be  entitled  to have his  sergeant grade reinstated 
unless the AFBCMR voided  the court-martial and both Article  15 
actions. 
A complete copy of the DPPPWB evaluation, with attachment, is at 
Exhibit E. 

The Claims Branch, DFAS-DE/FYDEC, reviewed this application and 
provided  an  advisory  addressing  the  portion  of  the  appeal 
DFAS-DE/FYDEC 
pertaining  to  the  applicant's  military  pay. 
indicated  that  the  applicant's  pay  records  are  no  longer 
available to verify any claim for leave not paid at separation. 
His DD Form 214, Certificate for Release or Discharge from Active 
Duty,  failed  to  reveal  any  accrued  leave  days.  Requests  for 
payment  should be  paid  only if  upheld by government records or 
other  substantiating  documents. 
Based  on  the  information 
provided  and  the  lapse  of  23  years,  DFAS-DE/FYDEC  found  no 
correction of military  records  is justified.  They recommended 
denial. 
A complete copy of the DFAS-DE/FYDEC evaluation is at Exhibit F. 

APPLICANT'S REVIEW OF AIR FORCE EVALUATION: 
In his response, the applicant indicated that it  is compassion, 
understanding,  and  justice  that  he  seeks,  and  he  addressed 
several  areas  where  he  believes  he  has  been  the  victim  of 
unfairness  and  injustice.  In  his  view,  the  authors  of  the 
advisory opinions were insensitive and did not  fully understand 
the human story involved in his case.  He asks the Board to not 
let one action in his past affect his entire future. 
Applicant's complete response is at Exhibit H. 

ADDITIONAL AIR FORCE EVALUATION: 
Pursuant  to  the  Board's  request,  The  BCMR  Medical  Consultant 
reviewed this application and recommended denial.  According  to 
the Medical Consultant, the applicant's contention of  a medical 
condition  contributing  to  his  poor  work  performance  and 
commission  of  the  many  disciplinary  infractions  cited  in  his 
court-martial was not supported by the evidence of record, nor by 
the  achievements  he  has  accomplished  in  the  years  since  his 
discharge.  with  no  strong evidence of  such a  condition being 
found during his service years, or in his post-service decades, 
the  applicant's  request  for  relief  based  on  this  contention 
cannot be favorably considered. 

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AFBCMR 96-01136 

. 

A complete copy of the BCMR Medical Consultant's evaluation is at 
Exhibit I. 

APPLICANT'S REVIEW OF ADDITIONAL AIR FORCE EVALUATION: 

Applicant indicated that it is clear that his unaddressed medical 
problems caused his inability to work.  His inability to work was 
wrongly interpreted as misconduct.  The only misconduct was the 
injustices of being denied leave by command and having foot and 
fatigue problems unrecognized as being eligible for sick leave. 
It  was wrongfully  assumed  that  it  was  some kind of  purposeful 
action.  Had his condition been timely and properly diagnosed and 
treated, he would not have been court-martialed. 
Applicant's complete response is at Exhibit K. 

THE BOARD CONCLUDES THAT: 
1.  The applicant has exhausted all remedies provided by existing 
law or regulations. 
2.  The application was timely filed. 
3 .   Insufficient  relevant  evidence  has  been  presented  to 
demonstrate the existence of probable error or injustice. 

a.  Concerning  the  applicant's  request  that  his  court- 
martial  conviction be  overturned, we  note  that  10 USC  1552(f) 
limits this Board to correction of  a record to reflect actions 
taken by the reviewing official and action on the sentence of a 
court-martial for the purpose of clemency.  The authority of the 
Correction Board to change the finding or verdict is specifically 
excluded from the statute, and we find no basis to disturb either 
the  record  of  the  reviewing  official  or  the  sentence  of  the 
court-martial.  Furthermore, we  do  not  find  that  any  relief 
related to the sentence, which is within this Board's authority 
to  grant  based  on  clemency,  is  supported  by  the  evidence 
provided.  Accordingly, the applicant's request that his court- 
martial conviction be overturned is not favorably considered. 

b.  Regarding  the  applicant's  remaining  requests,  the 
applicantls complete submission was thoroughly reviewed and his 
contentions were duly noted.  However, we agree with the opinions 
and  recommendations  of  the  Air  Force  offices  of  primary 
responsibility and  adopt  their  rationale  as  the  basis  for our 
conclusion that the applicant has not been the victim of an error 
or injustice.  Therefore, in the absence of sufficient evidence 
that  the applicant's discharge was  improper or contrary to the 
prevailing regulation, or that the information contained in his 

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AFBCMR 96-01136 

separation  document,  to  include  his  rank  at  the  time  of  his 
discharge,  reason  for his  separation, RE  code, lost  time, and 
effective date  of  his  separation, were  erroneous, his  requests 
are not favorably considered. 

THE BOARD DETERMINES THAT: 
The  applicant  be  notified  that  the  evidence presented  did  not 
demonstrate  the  existence  of  probable  material  error  or 
injustice; that  the  application was  denied  without  a personal 
appearance; and  that  the  application will  only be  reconsidered 
upon  the  submission of  newly  discovered  relevant  evidence  not 
considered with this application. 

The following members of the Board considered this application in 
Executive Session on 3 Nov  98, under the provisior&- of AFI 
36- 
2603 : 

Ms. Rita S. Looney, Panel Chair 
Mr. Steven A. Shaw, Member 
Mr. Patrick R. Wheeler, Member 

The following documentary evidence was considered: 

Exhibit 
Exhibit 
Exhibit 
Exhibit 
Exhibit 
Exhibit 
Exhibit 
Exhibit 
Exhibit 
Exhibit 
Exhibit 

A. 
B. 
C. 
D. 
E. 
F. 
G .  
H. 
I. 
J. 
K. 

DD Form 149, dated 29 Apr 96, w/atchs. 
Applicant's Master Personnel Records. 
FBI Report. 
Letter , 
AFLSA/JAJM, dated 19 Aug 96. 
AFPC/DPPPWB, dated 26 Aug 96. 
Letter, 
DFAS-DE/FYDEC, dated 21 Oct 96. 
Letter, 
Letter , 
SAF/MIBR, dated 4 Nov 96. 
Letter , 
applicant, dated 15 Nov 96. 
Letter , 
BCMR Medical Consultant, dated 22 Jun 
AFBCMR, dated 3 Aug 98. 
Letter, 
Letter , 
applicant, dated 26 Aug 98. 

98. 

Panel Chair  v 

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AFBCMR 96-01136