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AF | BCMR | CY2001 | 9800606
Original file (9800606.doc) Auto-classification: Denied


                            RECORD OF PROCEEDINGS
             AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS


IN THE MATTER OF:      DOCKET NUMBER:  98-00606
            INDEX CODE:  110.00

            COUNSEL:  NONE

            HEARING DESIRED:  YES


_________________________________________________________________

APPLICANT REQUESTS THAT:

His dismissal from the Air Force be upgraded  to  general  (under  honorable
conditions).

_________________________________________________________________

APPLICANT CONTENDS THAT:

His release from the Air Force was without clemency consideration  and  thus
deprival of retirement benefits.  He believes that he should be granted  his
retirement  due  to  his  length  of  honorable  service.   He  desires  his
discharge to be upgraded so that he may qualify  for  retirement  and  other
benefits which he has earned over his years  of  exemplary  service  to  the
military and to his country.  He  states  that  except  for  this  contrived
blot, his record in the military and in civilian  life  has  been  spotless.
He states that the court of appeals for the  District  of  Columbia  Circuit
Court has declared Article 134 of  the  Uniform  Code  of  Military  Justice
(UCMJ) unconstitutional.

In support of his appeal,  the  applicant  provided  a  personal  statement,
character references, and other documentation.

Applicant’s complete submission is at Exhibit A.

_________________________________________________________________

STATEMENT OF FACTS:

The applicant enlisted in the Regular Air Force on 13  July  1951.   He  was
honorably discharged on  10  December  1953  to  accept  a  commission.   He
entered extended active duty in the grade of second lieutenant,  Reserve  of
the Air Force on 11 December 1953, and was progressively promoted to major.

On 9 February 1971, applicant was convicted by General  Court-Martial  (GCM)
for the following reasons:


Charge I, Specification 1:  Did, on or about 25 July 1970,  at  Nellis  AFB,
steal ten boxes of morphine cartridges, two 30 cc vials  of  meperidine  and
two pounds of dental mercury, value of about $7.98,  of  a  total  value  of
less than $50.00.

Specification 2:  Did, between 1 March 1969 and  25  July  1970,  at  Nellis
AFB, steal 27 bottles of meperidine, 50 mg,  value  $15.93,  five  boxes  of
codeine phosphate, 60 mg, value $20.75, five boxes of codeine phosphate,  30
mg, value $18.00, five boxes of meperidine, 100 mg, value $21.25, six  boxes
of hydromorphine, value $30.12, of a total value  of  $106.05,  property  of
the U.S.

Charge II, Specification:  Did, o/a 25 July 1970, at Nellis AFB,  wrongfully
possess about two ounces of meperidine and about seven ounces  of  morphine,
both habit forming drugs.

Charge III, Specification:  Did, o/a 28 July 1970, at Nellis  AFB,  steal  a
desk value of $175.00, property of the U.S. (as amended during trial).

He was found guilty of all charges (with exceptions and  substitutions)  and
sentenced to a dismissal, confinement at hard labor for one year  and  total
forfeitures.  The convening authority remitted some of the  forfeitures  but
otherwise approved the findings and sentence.   The  action  was  upheld  on
appellate review (45CMR 456, 1972) and petition for further  review  by  the
U.S. Court of Military Appeals was denied.

On 21 April 1972, the applicant was relieved  from  active  duty  under  the
provisions  of  AFR  36-12,  paragraph  73,  in  the  grade  of  major,  and
transferred to ARPC.

On 31 July 1972, the applicant was dismissed from the Air Force,  under  the
provisions of General Court-Martial Order #3, dated 11 July 1972.

_________________________________________________________________

AIR FORCE EVALUATION:

The Associate Chief, Military Justice Division,  Air  Force  Legal  Services
Agency,  AFLSA/JAJM,  reviewed  this  application  and  states  that   after
reviewing the available records, they conclude  that  administrative  relief
by their office is not  possible.   There  are  no  legal  errors  requiring
correction.  They recommend the Board interpose the statute  of  limitations
or, if the statue of limitations is waived,  deny  the  application  on  its
merits.

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



APPLICANT'S REVIEW OF AIR FORCE EVALUATION:

On 11 May 1998 a copy of the Air Force evaluation was forwarded  for  review
and response within 30 days.  In a letter dated 8 June 1998,  the  applicant
requested a thirty (30) day extension of time to respond to  the  Air  Force
evaluation; which was granted on 23 June 1998.

In a letter dated 21 July 1998, the applicant requested  that  his  case  be
withdrawn, which was granted 3 August 1998.

On 22 August 2000, the  case  was  reopened  with  additional  documentation
submitted by the applicant, which is attached at Exhibit E.

_________________________________________________________________

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  reviewing  the  evidence
submitted with this appeal, we are not persuaded that applicant’s  discharge
should be upgraded.  The comments of the  Office  of  the  Air  Force  Legal
Services Agency (AFLSA/JAJM) are supported by the evidence  of  record.   We
find no evidence of error in this case and after  thoroughly  reviewing  the
documentation that has been submitted in support of applicant's  appeal,  we
do not believe he has suffered from an injustice. Therefore,  based  on  the
available evidence of record, we find no basis  to  recommend  granting  the
relief sought in this application.

4.    The applicant's case is adequately documented  and  it  has  not  been
shown that a personal appearance with or  without  counsel  will  materially
add to our understanding of the issue(s) involved.  Therefore,  the  request
for a hearing is 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 14 February 2001, under the provisions of AFI 36-2603:

                  Ms. Patricia J. Zarodkiewicz, Panel Chair
                  Mr. Albert F. Lowas, Jr., Member
                  Mr. Thomas J. Topolski, Jr., Member

The following documentary evidence was considered:

   Exhibit A.  DD Form 149, dated 9 February 1998, w/atchs.
   Exhibit B.  Applicant's Master Personnel Records.
   Exhibit C.  Letter, AFLSA/JAJM, dated 23 April 1998.
   Exhibit D.  Letter, SAF/MIBR, dated 11 May 1998.
   Exhibit E.  Letter, Applicant, dated 9 August 2000, w/atchs.




                                PATRICIA J. ZARODKIEWICZ
                                Panel Chair


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