RECORD OF PROCEEDINGS
         AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS


IN THE MATTER OF:      DOCKET NUMBER:  99-00108
                       INDEX CODE:  110.00

                 COUNSEL:  ERNEST E. BRADFORD, VSO

                 HEARING DESIRED:  NO


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APPLICANT REQUESTS THAT:

His bad conduct discharge (BCD) be upgraded to honorable.
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APPLICANT CONTENDS THAT:

He was not aware of most of the comments,  opinions  and  conditions
that occurred after the court-martial and his subsequent expeditious
discharge.  He is especially concerned about the many injustices  he
feels were heaped on him.  He continues to proclaim his innocence of
the charges.  The evidence used in his court-martial did not  belong
to him, and was planted in his garments.  The  witness  against  him
perjured himself.  He feels a grave injustice was done to  him  that
abruptly  terminated  and  destroyed  a  fine  military  career  and
personal reputation.  He has borne the stigma  of  that  nightmarish
incident for the past 39 years.

In support of his request, he submits a personal statement and other
documentation.

Applicant's complete submission is attached at Exhibit A.

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STATEMENT OF FACTS:

Applicant enlistment in the Regular Air Force on  20  November  1951
for a period of four years.  He reenlisted on 20 November 1955 for a
period of six years.

On 22 April 1959, applicant was arraigned and tried by Special Court-
Martial for the following reasons:

      1.  In November 1958, one specification of use of marijuana.

      2.  On 10 February 1959, wrongfully having in  his  possession
one gram, more or less, of marijuana.

Following  the  trial,  the  convening  authority  set   aside   the
conviction for use of marijuana because the defense was deprived  of
evidence in violation of the Jencks Act.

On 22 April 1959, he was found guilty by  a  special  court-martial.
The following punishment was imposed:  Bad Conduct Discharge  (BCD),
confinement for three months, forfeiture of $43 pay  per  month  for
three months, and reduction in grade to airman basic.

On 11 August 1959, applicant’s case was reviewed and affirmed by  an
Air Force Board of Review.

On 2 October 1959, applicant was discharged in the grade  of  airman
basic, and received a bad conduct discharge.  He served a total of 7
years, 7 months and 29 days with 76 days lost time.

Pursuant  to  the   Board's   request,   the   Federal   Bureau   of
Investigation, Washington, D.C., provided  an  investigative  report
which is attached at Exhibit F.

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AIR FORCE EVALUATION:

The Deputy Chief, Military Justice Division, Air Force Legal Service
Agency, AFLSA/JAJM, reviewed the application  and  states  that  the
applicant was discharged in 1959, the application was filed  outside
the three year limitations  period  which  began  at  the  time  any
injustice committed in connection with the court-martial proceedings
would have occurred, and which was tolled during the period  of  his
active duty service.  The applicant,  however,  indicates  that  the
injustice he complains of was only discovered in November 1998  when
he  received  court-martial   records.    First,   without   further
explanation, it would appear that  the  applicant  could,  with  the
exercise of due diligence, have  discovered  the  existence  of  the
alleged injustices at the time of the court-martial  or  during  the
review process, and that his application  is,  therefore,  untimely.
Moreover, a review of his records shows that the applicant made most
of the same  allegations  in  a  lengthy  submission  to  the  Judge
Advocate General dated 25 June 1959.  Therefore, the application  is
untimely.

The applicant is requesting action with respect to a record of court-
martial, but only his third and fifth issues can  be  considered  to
allege error or injustice committed by a reviewing  authority  under
the UCMJ.

The applicant contends that he was not guilty of possession  or  use
of marijuana.  As his conviction for use of marijuana was set aside,
that is no longer relevant.  As to his conviction for possession  of
marijuana, he was convicted based on the testimony of OSI agents and
an expert witness who identified the seized substance was marijuana.
 The defense called no witnesses and the applicant elected to remain
silent.  The applicant now alleges that the marijuana was planted by
an OSI agent.  He offers no evidence to support his contention other
than his bare assertion.  The applicant’s conviction  was  factually
and legally sufficient.

As to the applicant’s second issue, he is correct that his motion to
produce documents was improperly denied.   The  documents  requested
were statements of the witness who testified against him as  to  the
specification of using marijuana.  As his conviction for use was set
aside, this issue is moot.

As  to  the  third  issue  regarding  the  staff  judge   advocate’s
recommendation, the recommendation appears proper.  The staff  judge
advocate’s recommendation to set aside the specification  concerning
use belies the applicant’s contention.

The  applicant’s  disagreement  with  the  testimony  of  the  first
sergeant is not a basis for relief.  He had the opportunity to cross-
examine the witness and present other witnesses  as  to  sentencing.
Interestingly, the record reflects that the applicant was denied the
opportunity for rehabilitation and the possibility of  remaining  in
the Air Force because he stated at the time that he did not want  to
remain in the Air Force as long as he had this conviction.

The applicant is simply mistaken in his belief that  he  was  denied
appellate defense counsel.  Following trail, the applicant submitted
a request for appellate defense counsel.  The staff judge advocate’s
recommendation commented upon matters presented in the  addendum  to
the request for appellate defense counsel.  The applicant apparently
believes that this constituted a denial of his request for appellate
defense counsel.  This is not so.   The  record  reflects  that  the
applicant was represented by counsel before  the  Board  of  Review.
Therefore, they recommend denial of applicant’s request.

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

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APPLICANT'S REVIEW OF AIR FORCE EVALUATION:

The applicant reviewed the evaluation and  states  that  the  action
officer indicates his lack of attention to the  importance  of  this
matter.

Issue 1:  The record will show that eight character  witnesses  were
called on his  behalf.   He  does  not  know  what  other  kinds  of
witnesses that he could or should have produced.  If the  court  had
ordered the trail counsel to produce his verbal or written  comments
to the OSI during  the  investigation,  they  would  have  indicated
rather vehement commentaries alleging that they  were  framing  him.
Does the Jencks Act apply?  Airman  H’s  allegations  were  used  to
establish legal proceedings against him.  The  U.S.  Government  has
sheltered him and his written statements as confidential.

Issue 2:  The advisory appears to agree that the defense’s motion to
be  provided  a  document  was  improperly  denied.   The  documents
requested were statements of the witness who testified  against  him
for the specification of using marijuana.  As his conviction for use
was set aside, the issue is moot.  How could it be a moot issue?  It
is only because of witness Airman H’s allegations of using marijuana
with him that the OSI even  had  reason  to  come  to  his  Squadron
Commander, tell him that he was under investigation, and  wanted  to
search a room which he shared.

The advisory cites the  Jencks  Act  as  the  reason  the  convening
authority set aside the conviction for use of marijuana.  The  Staff
Judge Advocate’s review cited at page 4, paragraph 3,  Section  3500
of USC, which provides  in  pertinent  part  as  follows:   After  a
witness called by the U.S. has testified on direct examination,  the
Court shall on motion of the defendant, order the  U.S.  to  produce
any statement of the witness in the possession  of  the  U.S.  which
relates to the subject matter to which witness has testified.   Such
language seems to indicate reason for  declaration  of  a  mistrial,
rather than being a moot issue.

Issue 3:  In view of issues 1 and  2,  the  Staff  Judge  Advocate’s
recommendation for reassessment rather  than  rehearing  in  such  a
critical case indicates pre-judgment.  His inability  to  imagine  a
lesser sentence would be adjudged  on  rehearing.   His  insistence,
even after the guilty charges had been disapproved  and  set  aside,
that the accused is a confirmed user, is not  confirmed  or  proven.
Such a statement indicates a locked mind set against him.

Issue 4:  The advisory misses the point totally.  He  is  not  aware
that his first sergeant was called as a witness.  If he knew,  there
would have been an opportunity to cross-examine him upon making such
statements.   Especially,  statements  that  should  be  made  by  a
psychiatrist regarding his mental potential.  He has no  choice  but
to adopt an opinion that the first sergeant was a back-stabber  with
a bunch of stripes, and few guts.

Issue 5:  The  advisory  states  that  his  case  was  reviewed  and
affirmed by an Air Force Board of Review on 11 August 1959.  He  was
represented by Appellate Counsel.  He can only say that he  was  not
aware of such an event, never received any documentation  about  the
results, nor was he contacted by such  a  person.   Is  it  standard
protocol that counsel does not communicate with his client  at  that
level?  He requested copies of the documents pertaining to his  case
from the Records Center and such documentation was not  included  in
those that he received.

Issue 6:  He thinks it is ironic that the sitting President  of  the
U.S. has publicly  stated  (confessed)  to  use  and  possession  of
marijuana and absolutely no legal action has  been  brought  against
him.  Nevertheless, it is a known fact that similar cases have  been
prosecuted in civilian and military courtrooms  around  the  nation.
Is that a double standard?

Issue  7  (New):   This  business  about  investigators  and  expert
witnesses leaves considerable doubt about whether many are  truthful
about their findings.  In light of the many investigators and expert
witnesses for the prosecution and defense in the O.J. Simpson  case,
the Clinton vs. Lewinsky case,  who was lying?  How  about  some  of
the recent releases from death row.   Several  prisoners  have  been
proven  innocent  by  newer  technology,  evidentiary  and/or  trial
errors.  Was there ever a case where lies and deceit  were  used  to
prosecute?  Why is it so far fetched that his allegations  of  being
framed, unbelievable?  This is all wrong!   He  states  that  he  is
innocent of both charges.

Applicant's complete response is attached 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.    We find no impropriety in the  characterization  of  applicant's
discharge.  It appears that responsible officials applied  appropriate
standards in effecting the separation, and we do not  find  persuasive
evidence that pertinent regulations were violated  or  that  applicant
was not afforded all the rights to  which  entitled  at  the  time  of
discharge.  We conclude, therefore,  that  the  discharge  proceedings
were proper and characterization of the discharge was  appropriate  to
the existing circumstances.

4.    We also find insufficient evidence to warrant  a  recommendation
that the discharge be upgraded on the  basis  of  clemency.   We  have
considered applicant's overall quality of service,  the  events  which
precipitated the discharge, and available evidence  related  to  post-
service activities and accomplishments.  On balance, we do not believe
that clemency is warranted.

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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 19 October 1999, under the provisions of AFI  36-
2603:

      Ms. Rita S. Looney, Panel Chair
      Ms. Patricia D. Vestal, Member
      Mr. John E. Pettit, Member

The following documentary evidence was considered:

      Exhibit A. DD Form 149, dated 18 January 1999.
      Exhibit B. Applicant's Master Personnel Records.
      Exhibit C. Letter, AFLSA/JAJM, dated 22 March 1999.
      Exhibit D. Letter, SAF/MIBR, dated 21 June 1999.
      Exhibit E. Letter, Applicant, dated 19 July 1999, w/atchs.
      Exhibit F. FBI Report.