RECORD OF PROCEEDINGS
             AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS

IN THE MATTER OF:      DOCKET NUMBER:  BC-2003-00353
            INDEX CODE:
            COUNSEL:  NONE

            HEARING DESIRED:  NO

_________________________________________________________________

APPLICANT REQUESTS THAT:

1.  His records  be  corrected  to  show  his  retirement  grade  as  master
sergeant.

2.  Any references to his court-martial be removed from his records.

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APPLICANT CONTENDS THAT:

He was told at the  time  of  his  court-martial  that  his  rank  would  be
returned after 10 years.  He has already paid for the mistake he made  while
at Korea.  He was  court-martialed  for  transferring  goods  to  a  foreign
national, a charge he would not have faced if he were in the United  States.
 It is unfair and unethical to have something hanging  over  his  head  that
was done in another country and does not pertain to the  laws  here  in  the
States.  He has had the burden of the court-martial held over his  head  for
11 years and hopes that the issue can be resolved.

In support of his request applicant provided a copy  of  his  DD  Form  214,
Certificate  of  Release  or  Discharge  from  Active  Duty.   His  complete
submission, with attachments, is at Exhibit A.

_________________________________________________________________

STATEMENT OF FACTS:

Applicant contracted his initial enlistment in the Regular Air Force  on  27
Jul 73 and was progressively promoted  to  the  grade  of  master  sergeant,
having assumed that grade effective and with a date of rank of 1 May 88.

On 5 Feb 93, the applicant was tried by special court  for  a  specification
of transferring duty-free goods.  He plead not guilty and was found  guilty.
  He  was  sentenced  to  hard  labor  without  confinement  for  3  months,
forfeiture of $300 pay per month for 3 months, and reduction  to  the  grade
of technical sergeant (E-6).  His sentence was approved on 30 Mar 93.

On 1 Dec 93, the applicant was voluntarily retired from  the  Air  Force  in
the grade of technical sergeant.  He served 20 years, 4 months, and  4  days
on  active  duty.   The  Secretary  of  the  Air  Force  Personnel   Council
determined that the applicant satisfactorily served in the grade  of  master
sergeant and directed that he be advanced to that grade on the retired  list
effective the date his active service plus his  retired  service  equals  30
years.  On 27 Jul 03, applicant will be advanced  to  the  grade  of  master
sergeant.

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AIR FORCE EVALUATION:

AFLSA/JAJM recommends denial.  JAJM states that under Title 10  USC  Section
1552 the AFBCMR's ability to correct records  related  to  court-martial  is
limited.  The Board may  correct  a  record  to  reflect  actions  taken  by
reviewing  authorities  under  the  Uniform  Code   of   Military   Justice.
Additionally the  Board  may  correct  records  related  to  action  on  the
sentence of court-martial for the purpose of  clemency.   Apart  from  these
two limited exceptions, the effect of Section 1552  is  that  the  Board  is
without authority to reverse,  set-aside,  or  otherwise  expunge  a  court-
martial conviction that occurred on or after 5 May 50.

The applicant was charged with violating  a  lawful  general  regulation  in
Korea by transferring duty-free goods in violation of Article 92, UCMJ.   He
does not allege the regulation was not lawful or that  he  did  not  have  a
duty to obey it.  Article 92 applies to all military members, wherever  they
may be located.  He believes that advancement on the retired list voids  his
court-martial action.  He submits no authority to  support  his  contention.
The JAJM evaluation is at Exhibit C.

AFPC/DPPRRP recommends denial.  DPPRRP states that in  accordance  with  AFI
36-3202, the grade shown on the DD Form 214 is the active  duty  grade  held
at separation.  His active duty grade at separation was  technical  sergeant
and no action is required to correct his DD Form 214.   Advancement  to  the
grade of master sergeant is for retirement pay purposes  only.   The  DPPRRP
evaluation is at Exhibit D.

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APPLICANT'S REVIEW OF AIR FORCE EVALUATION:

Copies of the Air Force evaluations were forwarded to the  applicant  on  30
May 03 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 error or injustice that would warrant corrective  action.   The
Board notes that in accordance with the decision of  the  Secretary  of  the
Air Force Personnel Council, the  applicant's  grade  will  be  advanced  to
master sergeant on the retired list for pay purposes on 27  July  2003.   We
agree  with  the  Air  Force  office  of  primary  responsibility  that  his
discharge documents properly reflect his grade held at  separation  and  the
applicant has not provided evidence which  lead  us  to  believe  otherwise.
With respect to his request to remove all references  to  his  court-martial
action from  his  records,  we  are  not  persuaded  by  his  uncorroborated
assertions that the actions taken against him  were  improper,  contrary  to
the provisions of the governing regulations, or that he  was  denied  rights
to which he was entitled.  The comments of the Office of the Judge  Advocate
General are supported by the evidence of  record.   Therefore,  we  find  no
evidence of an error  in  this  case  and  after  thoroughly  reviewing  the
evidence presented, we  do  not  believe  he  has  been  the  victim  of  an
injustice.  Accordingly, based on the evidence of record, we find  no  basis
upon which to favorably consider this application.

_________________________________________________________________

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 AFBCMR Docket Number  BC-2003-
00353 in Executive Session on 15 Jul 03, under the  provisions  of  AFI  36-
2603:

      Mr. Richard A. Peterson, Panel Chair
      Mr. Albert J. Starnes, Member
      Mr. Kenneth Dumm, Member

The following documentary evidence was considered:

    Exhibit A.  DD Form 149, dated 28 Jan 03, w/atchs.
    Exhibit B.  Applicant's Master Personnel Records.
    Exhibit C.  Letter, AFLSA/JAJM, dated 17 Apr 03.
    Exhibit D.  Letter, AFPC/DPPRRP, dated 16 May 03, w/atchs.
    Exhibit E.  Letter, SAF/MRBR, dated 30 May 03.




                                   RICHARD A. PETERSON
                                   Panel Chair