RECORD OF PROCEEDINGS

          AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS




 IN THE MATTER OF:     DOCKET NUMBER:  00-03358
            INDEX CODE:  110.00


            COUNSEL:  NONE


            HEARING DESIRED:  NOT INDICATED




 _________________________________________________________________


 APPLICANT REQUESTS THAT:


 The deceased member’s bad conduct discharge (BCD) be upgraded.


 _________________________________________________________________


 APPLICANT CONTENDS THAT:


 She is requesting an  upgrade  of  discharge  so  she  may  receive
 benefits.


 Applicant’s complete submission is attached at Exhibit A.


 _________________________________________________________________


 STATEMENT OF FACTS:


 On 8 Feb 54, the deceased member enlisted in the Regular Air  Force
 (RegAF) for a period of four years in the grade of airman basic.


 On 8 Aug 55, the deceased member  was  convicted  pursuant  to  his
 plea, by a special court-martial  for  violation  of  Article  134,
 Uniform Code of Military Justice (UCMJ), for assault on a  military
 police officer.  He pled not guilty to unrelated specifications  of
 assault and disobeying a lawful order in violation of Articles  134
 and 90, UCMJ, but was found guilty of those specifications.  He was
 sentenced to a BCD, forfeiture of  $55  pay  for  six  months,  and
 confinement for six months.


 On  4 Oct  55,  the  general  court-martial   convening   authority
 disapproved the findings of guilty on the  two  contested  charges.
 The period of forfeitures  and  confinement  to  four  months  were
 reduced and the remaining sentence was approved as adjudged.


 On 17 Nov 55, the Air Force Board of Review affirmed  the  findings
 of guilty and the sentence imposed.  The deceased  member  did  not
 seek further appellate review.


 On 13 Jul 56, the deceased member was discharged from the Air Force
 under the provisions of AFR 39-18 (Special Court-Martial Order)  in
 the grade of airman basic.  He was  credited  with  1  year  and  8
 months of active service.


 On 26 Jul 56, the Air Force Discharge Review Board  (AFDRB)  denied
 the  deceased  member’s  request  that  his  BCD  be  upgraded   to
 honorable.  The AFDRB concluded that  the  evidence  submitted  was
 insufficient to warrant a change in  the  type  or  nature  of  his
 discharge (see Exhibit C).


 Pursuant  to  the  Board’s   request,   the   Federal   Bureau   of
 Investigation, Clarksburg, West Virginia, provided an investigative
 report which is attached at Exhibit D.


 _________________________________________________________________


 AIR FORCE EVALUATION:


 AFLSA/JAJM reviewed this application and recommended denial.   They
 state that the threshold question is  whether  there  is  a  proper
 applicant since the Air Force member  is  deceased.   AFI  36-2603,
 paragraph 3.1, provides that:


             An  applicant  with  a  proper  interest  may   request
 correction of another person’s military records when that person is
 incapable of acting on his or her own behalf,  is  missing,  or  is
 deceased.  Depending on the circumstances, a child, spouse,  parent
 or other close relative, an heir, or a legal  representative  (such
 as a guardian or executor) of the member or former  member  may  be
 able to show a proper interest.   Applicants  will  send  proof  of
 proper interest with the application when requesting correction  of
 another person’s military records.


 JAJM defers to AF/JAG for an opinion on the issue of civil  law  on
 whether the applicant is a proper applicant to file an  application
 for correction of the deceased’s military records.


 JAJM further states that, given the serious nature of  the  offense
 involved - assault on a military police officer in the  performance
 of his duty - court-martial was an appropriate forum.  The sentence
 was well within the legal limits and the  BCD  was  an  appropriate
 punishment for the offense committed.  The finding  of  guilty  and
 the BCD were both affirmed upon appellate review.  The  applicant’s
 daughter has failed to allege any  injustice  or  error  warranting
 upgrade of the deceased member’s punitive discharge; action on  the
 sentence in the nature of clemency does not appear warranted and no
 further action on this matter should be taken.


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


 _________________________________________________________________




 APPLICANT'S REVIEW OF AIR FORCE EVALUATION:


 A copy of the Air Force evaluation  was  forwarded  to  applicant’s
 mother on 3 Aug 01 for review and response within 30 days.   As  of
 this date, no response has been received by this office.


 _________________________________________________________________


 ADDITIONAL AIR FORCE EVALUATION:


 HQ USAF/JAG reviewed this application and concluded that the  Board
 may proceed to evaluate the application  on  its  merits.   In  the
 matter at hand,  the  applicant  provided  a  DNA  analysis  report
 estimating the probability of paternity at 99.99 percent.  Although
 it is not an original document nor  is  there  a  raised  seal,  it
 appears to have been certified by  a  member  of  the  laboratory’s
 Department of Paternity Evaluation.  Because “proper proof” is  not
 defined, the document appears authentic on its face  and  providing
 an original may prove unduly burdensome (i.e., the deceased  member
 died in 1994, shortly after providing his DNA sample in late 1993).
  It is JAG’s opinion that applicant’s submission should suffice for
 purposes of this specific application.


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


 _________________________________________________________________


 APPLICANT'S REVIEW OF ADDITIONAL AIR FORCE EVALUATION:


 A copy of the FBI  report  and  a  letter  informing  the  deceased
 member’s widow that she failed to provide information pertaining to
 her  late  husband’s  activities  since  leaving  the  service  was
 forwarded to her on 27 Sep 01 for review and response.  As of  this
 date, no response has been received by this office (see Exhibit H).


 _________________________________________________________________


 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   careful
 consideration of the available records and the evidence provided,  we
 find no  evidence  to  indicate  that  the  former  service  member’s
 separation from the Air Force was inappropriate.  Further, in view of
 the contents of the FBI Identification Record, we are  not  persuaded
 that an upgrade of the characterization of his discharge is warranted
 on the basis of clemency.  In view  of  the  foregoing,  and  in  the
 absence of evidence to the contrary, we conclude that no basis exists
 to recommend granting the relief sought.


 _________________________________________________________________


 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 31 January 2002, under  the  provisions  of  Air
 Force Instruction 36-2603:


                  Mr. Edward H. Parker, Panel Chair
                  Ms. Martha Maust, Member
                  Mr. James W. Russell, III, Member


 The  Board  recommended  denial  of  the  application.   Mr.  Russell
 abstained  from  voting.   The  following  documentary  evidence  was
 considered:


 The following documentary evidence was considered:


      Exhibit A.  DD Form 149s, dated 14 Dec 00 and 5 May 01,
                    w/atchs.
      Exhibit B.  Applicant's Master Personnel Records.
      Exhibit C.  AFDRB Hearing Record, dated 26 Jul 56,
                    w/atchs.
      Exhibit D.  FBI Identification Record.
      Exhibit E.  Letter, AFLSA/JAJM, dated 19 Jul 01.
      Exhibit F.  Letter, SAF/MIBR, dated 3 Aug 01.
      Exhibit G.  Letter, HQ USAF/JAG, dated 24 Sep 01.
      Exhibit H.  Letter, AFBCMR, dated 27 Sep 01, w/atchs.










                                    EDWARD H. PARKER
                                    Panel Chair