RECORD OF PROCEEDINGS
         AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS


IN THE MATTER OF:      DOCKET NUMBER: 98-02105
                 INDEX CODE:  108.03
                 COUNSEL:  Charles W. Schiesser

                 HEARING DESIRED:  No
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APPLICANT REQUESTS THAT:

Her late husband’s shooting death in 1955 be found to be in  the  line
of duty (LOD) rather than as a result of his own misconduct.
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APPLICANT CONTENDS THAT:

“All the officials have used every means to keep [her] from getting  a
readable copy” of the investigation of her husband’s  death.  His  car
was surrounded by 25 people with sticks in their  hands.  Her  husband
was Black, was repeatedly referred to as “boy,” and was  attacked  and
killed while defending himself and                 his  property.   In
support, she  provides  copies  of  documents  pertinent  to  the  LOD
investigation, including statements and a Summary of the  Findings  of
the LOD by the Investigating Officer (IO). [See Statement of Facts for
clarification of the darkly imaged VA  Form  VB  8-606  the  applicant
included in her submission.]

A copy of applicant's complete submission is at Exhibit A.

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STATEMENT OF FACTS:

The decedent enlisted  in  the  Air  Force  on  22  August  1951,  was
honorably  discharged  on  14  September  1955   and   reenlisted   on
15 September 1955 for six years.  During the period in  question,  the
applicant was a married 24-year-old staff  sergeant  assigned  to  the
27th Air Division (Defense) at Roslyn AF Station in  Roslyn,  NY,  and
had an authorized three-day absence.

The details regarding the decedent’s death  on  20  October  1955  are
contained in the materials provided by the applicant (Exhibit  A)  and
therefore do not need to  be  recited  here.  The  documents  she  has
provided are copies of  the  same  materials  contained  in  her  late
husband’s military  personnel  records  that  are  pertinent  to  this
incident. His records have suffered some damage from  the  effects  of
the 1973 fire but appear essentially intact. According to the  Content
and Index of Exhibits  of  the  investigative  report,  the  applicant
appears to have all of the Exhibits except the Report of  Autopsy  and
photographs.  The photographs are adhered together due to water damage
but consist of the decedent and the parking lot and pavement were  the
shooting took place.  The typed statements of the witnesses correspond
to their handwritten statements, which are also in the record.

According to administrative  memoranda  contained  in  the  decedent’s
records, at the time of  his  death  the  applicant  was  residing  in
Austin, TX, and she received assistance from the  Air  Force  Casualty
Assistance Program at Bergstrom AFB, Austin, TX.

A VA (Veterans Affairs) Form 3101 reflects that the Veterans Benefits,
Compensation & Pension Section in Washington,  DC,  requested  service
information on the decedent in December 1955.

The VA Form VB 8-606 provided by the applicant is  the  only  document
having large areas that are very difficult to  read.   It  is  the  23
February 1956 decision of the Dependents Pension Board and is not part
of the Air Force’s Investigative Report. The decision  indicates  that
the decedent had a duodenal ulcer of service origin. The decision also
cites the   “Report  of  Investigation”  and  states  that  “while  on
authorized leave this soldier, while armed with a pistol that was  not
registered, initiated an affray with a group of civilians, all of whom
were apparently unarmed. He threatened several of  the  civilians  and
when the civilians attempted to gain custody of the weapon a  struggle
ensued in which the soldier’s pistol was discharged with resultant non-
fatal injury to a civilian and  fatal  injury  to  the  soldier.”  The
decision concludes with “In the opinion of this Board the  actions  of
this soldier in provoking a quarrel and employing a weapon capable  of
inflicting mortal injury,  represented  such  disregard  for  his  own
personal  safety,  and  that  of  others,  as  to  constitute  willful
misconduct and accordingly it is held that death in this case did  not
occur in line of duty and was the result of  willful  misconduct.  The
last period of service is not ratable under PL 312. . . because of the
manner of its termination.”
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AIR FORCE EVALUATION:

The Staff Judge Advocate, HQ AFPC/JA, provided a four-page  discussion
on the untimeliness and lack  of  merit  of  the  appeal.  The  author
concludes that there  is  substantial  credible  evidence  to  legally
support the conclusions  of  the  IO  who  conducted  the  formal  LOD
investigation. There is no evidence in the file  which  indicates  the
decedent was  killed  protecting  himself  and  his  property  as  the
applicant  alleges.  The  author  adds  that  there  is  no   evidence
supporting the [applicant’s] assertions that the findings of  the  LOD
IO were somehow motivated by the fact that the member was Black. Since
the applicant has failed to present any convincing evidence to support
her  contention  that  her  husband  died  in  the  LOD,   denial   is
recommended.

A copy of the complete Air Force evaluation is attached at Exhibit C.

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APPLICANT'S REVIEW OF AIR FORCE EVALUATION:

Counsel asserts that neither the Air Force nor Department of  Veterans
Affairs (DVA) has provided the applicant with a copy of  the  official
investigation that can be read. The government  should  provide  proof
that it provided the applicant a copy of the report that can be  read.
Counsel contends the evidence  shows  the  “25  whites  were  racially
motivated” and that “the Air Force paper admits that. . .  the  whites
were the aggressors.” The applicant does not and still does not have a
readable copy of the report. The copy provided by the  DVA  has  major
portions that cannot be read. The decedent was attached by  25  whites
and they killed him.

Counsel’s complete response is at Exhibit E.
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THE BOARD CONCLUDES THAT:

1.    The applicant has exhausted all remedies  provided  by  existing
law or regulations.

2.    The application was not timely filed;  however,  it  is  in  the
interest of justice to excuse the failure to timely file.

3.    Insufficient relevant evidence has been presented to demonstrate
the existence of probable error or injustice. After a thorough  review
of the evidence of record and the applicant’s submission, we  are  not
persuaded that her late husband’s death in 1955 should be found to  be
in the LOD. The applicant appears to believe that she does not have  a
copy of the official investigation.  However, we can assure  her  that
the documents she provided with her appeal are, in fact,   the same as
those contained in her late husband’s military records.  As  indicated
in the Statement of Facts, the document having large darkened areas is
a VA Form VB 8-606. This form is the 1956 Decision of  the  Dependents
Pension Board and is not part of the Air Force’s Investigative Report.
However, neither this form nor the  Investigative  Report  appears  to
support counsel’s  contention  that  the  LOD  findings  were  somehow
racially motivated or that the decedent’s unfortunate  death  was  not
driven by his own actions. The available evidence appears to  indicate
that the decedent kept confronting the  group  of  teenagers  with  an
automatic  weapon  and  was  not  killed  defending  himself  and  his
property. We sympathize with the applicant’s loss;  however,  she  has
not sustained her burden of having suffered  either  an  error  or  an
injustice. Therefore, absent persuasive evidence to the  contrary,  we
have no option but to recommend this appeal be denied.
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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 6 July 1999, under the provisions of AFI 36-2603:

                  Mr. Richard A. Peterson, Panel Chair
                  Mr. Gary Appleton, Member
                  Ms. Patricia D. Vestal, Member

The following documentary evidence was considered:

   Exhibit A.  DD Form 149, dated 1 Jul 98, w/atchs.
   Exhibit B.  Applicant's Master Personnel Records.
   Exhibit C.  Letter, HQ AFPC/JA, dated 21 Sep 98.
   Exhibit D.  Letter, AFBCMR, dated 12 Oct 98.
   Exhibit E.  Letter, Counsel, dated 16 Oct 98.




                                   RICHARD A. PETERSON
                                   Panel Chair