RECORD OF PROCEEDINGS
             AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS

IN THE MATTER OF:      DOCKET NUMBER:  02-00546
            INDEX CODE:  123.00
            COUNSEL:  NONE

            HEARING DESIRED:  YES

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APPLICANT REQUESTS THAT:

The 104 days that were lost under Article 107 be restored.

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APPLICANT CONTENDS THAT:

His court-martial was in error because his defense counsel, who  was  not  a
lawyer,  recommended  that  he  confess.   By  today’s  standards,  he   was
improperly represented.  If it would have happened today, there  is  a  good
chance that he wouldn’t even receive Article  15  punishment.   He  got  the
indication that they believed his confession  was  an  admission  of  guilt,
which it wasn’t.  There were no injuries or real damage, just 2 trucks  that
bumped each other.  The truck he drove  was  a  right-sided  English  truck.
Neither truck suffered any physical damage.

In  support  of  his  request   applicant   provided   character   reference
statements.  His complete submission, with attachments, is at Exhibit A.

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STATEMENT OF FACTS:

Applicant enlisted in the Army Air Force on 29 Dec 41.  On 1 Sep 45, he  was
discharged from the Army Air Force for the Convenience of the Government  on
1 Sep 45.  He served 3 years, 4 months, and 19 days on active duty.

The remaining relevant facts pertaining to this application, extracted  from
the applicant’s military records, are contained in the  letter  prepared  by
the appropriate office of the Air Force at Exhibit C.

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AIR FORCE EVALUATION:

AFLSA/JAJM reviewed applicant’s request and recommends denial.  JAJM  states
that a record  of  trial  and  his  military  personnel  records  cannot  be
located.  Although the record of trial has not been  located,  it  is  clear
that he had 104 days of time lost presumably as a result of  a  sentence  to
confinement.  A court-martial during that time  would  have  been  conducted
under the Articles of War.  There is a strong, but  rebuttable,  presumption
that military personnel discharge their duties correctly, lawfully,  and  in
good faith.  As such, it may be presumed that the procedures  in  effect  at
the time of his court-martial were followed.   Absent  sufficient  evidence,
the presumption of regularity prevails over unsupported  assertions  by  the
applicant to  the  contrary.   The  applicant  raised  an  issue  about  the
sufficiency of the evidence and the lack of an  attorney.   The  sufficiency
of evidence issues are factual that were resolved against him at  trial  and
cannot be reasonable reargued  and  evaluated  at  this  point.   Under  the
Articles of War, there was no requirement that trial and defense counsel  be
attorneys.  The right of representation by an  attorney  in  all  cases  was
established after his court-martial and in advance of a similar right  being
recognized by the U.S. Supreme Court for even felony trials.

The applicant has failed to show that  the  court-martial  was  improper  or
that he was not provided due process.  A  correction  should  only  be  made
when the  evidence  demonstrates  an  error  or  clear  injustice,  or  that
clemency is warranted.  He has provided no evidence  of  a  clear  error  or
injustice.  There is no basis for clemency or merit to his claim.

JAJM recommends that  the  applicant  be  advised  that  he  may  apply  for
Presidential pardon under the provision of Title 28, Section 1.1.  The  JAJM
evaluation is at Exhibit C.

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APPLICANT'S REVIEW OF AIR FORCE EVALUATION:

A copy of the Air Force evaluation was forwarded to the applicant on  3  Jun
02 for review and comment within 30 days.  As of this date, this office  has
received no response.

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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 probable error or injustice.  The Board  majority  agrees  with
the comments of the Office of the Judge Advocate General and  believes  that
based upon the presumption of regularity  in  the  conduct  of  governmental
affairs it is appropriate in this case to assume that the applicant's court-
martial was proper and in compliance  with  appropriate  directives  at  the
time it was conducted.   Therefore,  based  on  the  available  evidence  of
record, and in the absence of evidence to the contrary, the  Board  majority
finds no basis upon which to favorably consider 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  involved.   Therefore,  the  request  for  a
hearing is not favorably considered.

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THE BOARD RECOMMENDS THAT:

A majority of the panel finds insufficient evidence of  error  or  injustice
and recommends the application be denied.

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The following members of the Board  considered  Docket  Number  02-00546  in
Executive Session on 7 Aug 02, under the provisions of AFI 36-2603:

      Mr. Vaughn E. Schlunz, Panel Chair
      Mr. E. David Hoard, Member
      Mr. Clarence D. Long III, Member

By a majority vote, the Board recommended denial of  the  application.   Mr.
Long voted to correct the records but does not desire to submit  a  Minority
Report.  The following documentary evidence was considered:

    Exhibit A.  DD Form 149, dated 29 Jan 02, w/atchs.
    Exhibit B.  Applicant's Available Master Personnel Records.
    Exhibit C.  Letter, AFLSA/JAJM, dated 22 May 02, w/atch.
    Exhibit D.  Letter, SAF/MRBR, dated 3 Jun 02.




                                   VAUGHN E. SCHLUNZ
                                   Panel Chair


MEMORANDUM FOR THE EXECUTIVE DIRECTOR, AIR FORCE BOARD
               FOR CORRECTION OF MILITARY RECORDS (AFBCMR)

SUBJECT:  AFBCMR Application of APPLICANT

      I have carefully reviewed the evidence of record and the
recommendation of the Board members.  A majority found that the applicant
had not provided sufficient evidence of error or injustice and recommended
the case be denied.  I concur with that finding and their conclusion that
relief is not warranted.  Accordingly, I accept their recommendation that
the application be denied.

      Please advise the applicant accordingly.




                                        JOE G. LINEBERGER
                                        Director
                                        Air Force Review Boards
Agency