AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS 

RECORD OF PROCEEDINGS 

IN THE MATTER OF: 

DOCKET NUMBER:  9 8 - 0 2 3 8 5  
COUNSEL:  None 
HEARING DESIRED:  NO 

Applicant  requests  that  his  bad  c0nduc.t discharge  (BCD) be 
upgraded to 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 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.  Michael  P.  Higgins,  Mr.  Richard  A. 
Peterson, and Mr. Patrick R. Wheeler considered this application 
on 2 February 1 9 9 9   in accordance with the provisions of Air Force 
Instruction 3 6 - 2 6 0 3 ,   and the governing statu 

Exhibits : 
A.  Applicant's DD Form 1 4 9  
B.  Available Master Personnel Records 
C.  Advisory Opinion 
D.  AFBCMR Ltr Forwarding Advisory Opinion 

Panel Chair 

DEPARTMENT OF THE AIR  FORCE 
AIR  FORCE  LEGAL  SERVICES AGENCY  (AFLSA) 

MEMORANDUM FOR AFBCMR 

6 Oct 98 

FROM:  AFLSNJAJM (Lt Col Woodford) 

. 

112 Luke Avenue, Room 343 
Bolling AFB, DC 20332-8000 

Applicant’s request:  In an application dated 8 Aug 98, the applicant requests that his bad 
conduct discharge (BCD) be upgraded to an honorable discharge.  On 27 Feb 69, the applicant was 
convicted at a general court-martial.  He was sentenced to confinement at hard labor for one (1) year, 
forfeiture of all pay and allowances, reduction to the grade of airman basic and received a BCD.  The 
application was not submitted within the three-year statute of limitations provided by  10 U.S.C. 
1552(b). The applicant provides no basis for the delay in submitting his application, nor does he 
offer any reason why the Board should find it in the interest of justice to consider this application. 

Facts of milita 

69, the accused was convicted by a general 
court-martial convened a 
e first charge involved two (2) specifications in 
violation of Article 12 1, Uniform Code of Military Justice (UCMJ), of wrongfully appropriating a 
vehicle, the property of an airman and, of stealing a stereo and stereo tapes, the property of another 
Air Force member.  A second charge involved a single specification of absent from his organization 
without proper authority (AWOL) in violation of Article 86, UCMJ.  The applicant was found guilty 
of the referenced specifications and charges.  He was found not guilty of a third specification of 
stealing a tape deck, the property of another Air Force member, in violation of the first charge.  He 
was sentenced to confinement at hard labor for one (1) year, forfeiture of all pay and allowances, and 
reduction in grade to airman basic.  The convening authority approved the findings and sentence on 
27 Feb 69.  The applicant initially elected not to have appellate defense counsel represent him. 
However, a Petition For Grant Of Review was later submitted by applicant with benefit of appellate 
defense counsel, yet the applicant did not assign any specific errors.  On 22 May 69, appellate review 
in the case was completed with the applicant’s Petition For Grant Of Review of the court-martial 
decision being denied.  The applicant’s conviction was ordered executed on 14 July 69.  Clemency 
was not approved by the Clemency and Parole Board following a review on 31 July 69.  The 
applicant was discharged Under Conditions Other Than Honorable on 18 Aug 69. 

Applicant’s contentions:  The applicant makes no allegation of legal error in the record. He 
states that he knows it’s been a long time since he’s been in the Air Force.  In support of his request, 
he contends that he was 
leaving confinement at 
changed “to receive eli 
to an honorable discharge. 

‘s discharge would be upgraded in two (2) years of 
he applicant indicates that he needs his discharge 
entitlement.”  He requests that his BCD be upgraded 

Discussion:  The applicant does not allege that any injustice or legal error occurred during 

his court-martial. However, he says that his counsel said that his discharge would be upgraded 
within two (2) years of leaving confinement.  There is no indication in the file that defense counsel 
made such a statement; and it would be uncharacteristic of counsel to make such a statement because 
such a statement would not be based on any truth in fact or law.  There should be a presumption of 
regularity accorded the process and the actions of defense counsel at that time should be believed as 
being proper, unless there is some contemporaneous objection or evidence to the contrary. 

There is no substantive justification for upgrading applicant’s BCD to an honorable discharge 

or for that matter a general discharge.  The BCD reflects the applicant’s characterization of active 
duty service and his desire to leave the service as soon as possible without true concern for how it 
happened or whatever the characterization of the departure.  This is particularly true given a review 
of the file and the post-trial clemency report in particular, wherein it is reported that the applicant’s 
future plans were to obtain employment with his uncle, who was not concerned with what type of 
discharge he got from the Air Force.  The comment in the report was that the applicant wanted to get 
out of the Air Force as soon as he could and was not interested in going to rehabilitation.  The 
referenced report also indicates that the applicant felt his defense counsel did a “real good job,” but 
that the court was too harsh as far as his sentence.  The applicant evidently indicated that he didn’t 
think he would get any more than six (6) months and a BCD. 

Nonetheless, the Board does have the discretionary power to upgrade the applicant’s bad 

conduct discharge as a matter of equity.  However, the applicant’s lack of making any argument or 
support for any reasons why an injustice has occurred draws into question the prudence of granting 
such equitable relief. 

Recommendation:  The applicant’s request is untimely and should be denied for failing to 

comply with the statute of limitations.  Further, after reviewing the available records, this office 
concludes that administrative relief by this office is not warranted.  There are no legal errors 
requiring correction, and the applicant has failed to provide a sufficient basis for upgrading his bad 
conduct discharge to the requested honorable discharge or a general discharge. I recommend the 
Board deny this application based upon the statute of limitations, or, if waived, deny the application 
on its merits. 

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