RECORD OF PROCEEDINGS
             AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS



IN THE MATTER OF:      DOCKET NUMBER:  01-01979

            INDEX CODE:  126.00, 126.04


            COUNSEL:  NONE


            HEARING DESIRED:  NO

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APPLICANT REQUESTS THAT:

The nonjudicial punishment action, imposed on 7 May  56,  and  summary
court-martial punishment, ordered executed on 10 May 56, be set aside,
including his loss of rank, pay, and flight status.

His undesirable discharge be upgraded to general or honorable.

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APPLICANT CONTENDS THAT:

His court-martial was illegal.

His discharge is inequitable because it  was  based  on  one  isolated
incident in 48 months of service with no other adverse action.

Applicant’s complete submission is attached at Exhibit A.

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STATEMENT OF FACTS:

Prior to the enlistment under review, the applicant had  a  period  of
honorable service from  17 November  1952  to  27  October  1955.   He
reenlisted on 28 October 1955 for a period of six years, in the  grade
of airman second class.

On 7 May 56, the squadron commander  notified  the  applicant  of  his
intent to impose  punishment  under  the  provisions  of  Article  15,
Uniform Code of Military Justice (UCMJ), for issuing a check which was
returned and marked insufficient funds.  It was also noted  that  this
was not the first instance of this  type  of  misdemeanor.   Applicant
acknowledged receipt of the notification,  did  not  demand  trial  by
court-martial and did not submit matters in  mitigation,  extenuation,
or defense.  Punishment consisted of  a  reduction  to  the  grade  of
airman second class (A2/C) and a reprimand.  Applicant did not  appeal
the punishment.

On  9 May  56,  charges  were  preferred  against  the  applicant  for
allegedly uttering two checks, one each on 3 and 14 April  1956,  each
in the amount of $25, without maintaining sufficient funds in his bank
account to cover their payment, in violation of Art 134, UCMJ.  On  10
May 1956, the charges were referred to a summary  court-martial.   The
applicant consented to be tried  by  the  summary  court-martial.   In
accordance with his pleas, on 10 May 1956, he was found guilty of  the
offenses charged and was sentenced to confinement at hard labor for 15
days.

On 20 Aug 56, applicant acknowledged  receipt  of  the  administrative
discharge action initiated against him for unfitness.  He  waived  his
entitlement to  appear  before  a  board  of  officers  and  requested
discharge in lieu of board proceedings.  He further acknowledged  that
he understood that if his application  was  approved,  his  separation
could be under conditions other than honorable, he  could  receive  an
undesirable discharge, and that this may deprive him of  rights  as  a
veteran under both federal and state legislation.  On 24 Aug  56,  the
squadron commander recommended that the  applicant  be  discharged  by
reason of unfitness in accordance with AFR 39-17.  The reason for  the
proposed  recommendation  was  applicant’s  continual   and   habitual
uttering of bad  checks  on  insufficient  or  closed  accounts.   The
commander  noted  applicant’s  character  rating  as  poor   and   his
efficiency rating as unsatisfactory.  The group  and  wing  commanders
recommended that the applicant be discharged under the  provisions  of
AFR 39-17.   On  2  Oct  56,  the  discharge  authority  approved  the
undesirable discharge.

On 18 Oct 56, the applicant was discharged from the  Air  Force  under
the provisions of AFR 39-17 with an undesirable discharge in the grade
of airman basic.  He was credited with 3 years, 10 months, and 16 days
of active service (excluding 15 days of lost time).

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

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AIR FORCE EVALUATION:

AFLSA/JAJM recommends denial, stating that a set aside should only  be
granted when the evidence demonstrates an error or a clear  injustice.
The applicant has provided no evidence of a clear error  or  injustice
related to  the  entire  nonjudicial  punishment  action.   AFLSA/JAJM
further states that nonjudicial punishment is permitted by Article 15,
UCMJ, (Section 815, Title 10, United States Code (USC),  and  governed
by the Manual for Courts-Martial and, at the time of  the  applicant’s
proceedings, Air  Force  Regulation  111-9.   This  procedure  permits
commanders to dispose of certain  offenses  without  trial  by  court-
martial unless the service member objects.  Pursuant to the Manual for
Courts-Martial, 1951, service members first must be notified by  their
commanders of the nature of the charged offense and of the commander’s
intent to impose nonjudicial punishment.  Unlike  present  procedures,
the service member was not, at that time, entitled to consult  with  a
military defense counsel to determine whether  to  accept  nonjudicial
punishment proceedings or demand trial  by  court-martial.   Accepting
the proceedings is simply a choice of forum; it is not an admission of
guilt.

A member accepting nonjudicial punishment  proceedings  was  then,  as
now, entitled to submit matters in mitigation, extenuation, or defense
to his commander.   They  may  have  a  hearing  with  the  commander.
Members wishing to contest  their  commander’s  determination  or  the
severity of the punishment imposed could, as now, appeal to  the  next
higher commander.  The appeal authority may set aside the  punishment,
decrease its severity, or deny  the  appeal.   Nonjudicial  punishment
does not constitute a criminal conviction.

AFLSA/JAJM further states that the function of a summary court-martial
is to exercise justice promptly for relatively minor offenses under  a
simple form of procedure.  Under the rules then in  existence  at  the
time of the applicant’s court-martial,  an  officer  selected  by  the
convening authority constituted the court  and  represented  both  the
Government and the accused.  The officer was charged to thoroughly and
impartially investigate both sides of the matter and assure  that  the
interests of both the Government and  the  accused  were  safeguarded.
Prior to trial, the summary court-martial officer advised the  accused
of the following: the general nature of the charges; the name  of  the
accuser; the names of the witnesses to be called;  the  right  of  the
accused to cross-examine them or have  the  court  ask  any  questions
which the accused desires answered; the right of the accused  to  call
any witnesses or produce any evidence on his behalf with the assurance
that the court will assist him in every way  possible;  his  right  to
testify on the merits or to remain silent; and, after any findings  of
guilty are announced, to make an unsworn statement  in  mitigation  or
extenuation.

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

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APPLICANT'S REVIEW OF AIR FORCE EVALUATION:

A copy of the Air Force evaluation was forwarded to applicant on 7 Dec
01 for review and response within  30  days.   As  of  this  date,  no
response has been received by this office.

On 1 Apr 02, a copy of the FBI report was forwarded to  the  applicant
for comment.  At that time, the applicant was also invited to  provide
additional evidence pertaining to his  activities  since  leaving  the
service (Exhibit F).  As of this date, no response has  been  received
by this office.

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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  error  or  injustice  regarding  the   applicant’s
nonjudicial  punishment.   Applicant’s  contentions  are  duly  noted.
However, after a  thorough  review  of  the  evidence  of  record  and
applicant's  complete  submission,  we  are  not  persuaded  that  the
nonjudicial punishment should  be  set  aside.   Other  than  his  own
assertions, the applicant has not  presented  any  evidence  that  the
commander  abused  his  discretionary  authority   in   imposing   the
nonjudicial  punishment  when  he  concluded  that  reliable  evidence
existed to indicate the applicant had committed the  alleged  offense.
Therefore, we agree with the opinion and  recommendation  of  the  Air
Force Legal Services Agency and adopt the rationale expressed  as  the
basis for our decision that the applicant has failed  to  sustain  his
burden of having suffered either an error or injustice.   There  being
insufficient evidence to the contrary, we find no compelling basis  to
recommend favorable action on his request to set aside the nonjudicial
punishment.

4.  We noted the applicant’s request to set aside the  summary  court-
martial, ordered executed on 10 May  1956.   However,  this  Board  is
without authority  to  set  aside,  reverse,  overturn,  or  otherwise
expunge a court-martial conviction  from  an  applicant’s  record  for
cases tried or  reviewed  after  enactment  of  the  Uniform  Code  of
Military Justice Act of 1983.

5.  After thoroughly reviewing  the  applicant’s  submission  and  the
available evidence of record, we find insufficient evidence  of  error
or injustice warranting an upgrade  of  the  characterization  of  the
applicant’s discharge.  The discharge appears to be in compliance with
the governing regulation and we find no evidence that  his  separation
was inappropriate.  We also find insufficient  evidence  of  error  or
injustice in this case warranting an upgrade of the discharge  on  the
basis of clemency.  In this  regard,  we  considered  the  applicant’s
overall quality of service  and  the  events  which  precipitated  the
discharge, as well as the contents of the FBI report of  investigation
and the absence of information concerning his activities since leaving
the  service.   On  balance,  we  do  not  believe  that  clemency  is
warranted.
________________________________________________________________

THE BOARD DETERMINES THAT:

The  applicant  be  notified  that  the  evidence  presented  did  not
demonstrate the existence of 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  AFBCMR
Docket Number 01-01979 in Executive Session on 29 May 2002, under  the
provisions of AFI 36-2603:

      Mr. Philip Sheuerman, Panel Chair
      Mr. Billy C. Baxter, Member
      Mr. James W. Russell III, Member

The following documentary evidence was considered:

    Exhibit A.  DD Form 149, dated 13 Jul 01, w/atchs.
    Exhibit B.  Applicant's Master Personnel Records.
    Exhibit C.  FBI Report of Investigation.
    Exhibit D.  Letter, AFLSA/JAJM, dated 2 Oct 01, w/atchs.
    Exhibit E.  Letter, SAF/MRBR, dated 7 Dec 01, w/atchs.
    Exhibit F.  Letter, AFBCMR, dated 1 Apr 02, w/atchs.




                                   PHILIP SHEUERMAN
                                   Panel Chair