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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