RECORD OF PROCEEDINGS
         AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS


IN THE MATTER OF:      DOCKET NUMBER:  BC-2004-00673
            INDEX CODE:  126.04

            COUNSEL:  NONE

            HEARING DESIRED:  NO


_________________________________________________________________

APPLICANT REQUESTS THAT:

His Federal Bureau of Investigation (FBI) record and his Special Court-
Martial conviction be sealed or expunged.

_________________________________________________________________

APPLICANT CONTENDS THAT:

He has turned his life around.

He has been sober for twenty years.

His  conviction  is  preventing  him  from  obtaining  the   necessary
documentation to maintain his job.

In support of his appeal, the applicant provided a personal statement,
supportive statements, and other documents associated with the  matter
under review.

Applicant’s complete submission, with attachments, is at Exhibit A.

_________________________________________________________________

STATEMENT OF FACTS:

The applicant initially enlisted in the Regular Air Force on 7 Jul  53
for a period of four years.

On 27 Jan 64, the applicant was convicted by special court-martial  of
two specifications of the intent to defraud and for the procurement of
lawful currency and merchandise by wrongfully  and  unlawfully  making
and uttering two checks without sufficient funds.  He was sentenced to
a bad conduct discharge, confinement for two months, and reduction  to
the grade from airman second class to  airman  basic.   The  convening
authority approved the sentence as adjudged.

On 20 Feb 64, the  approved  sentence  of  the  special  court-martial
having been affirmed,  the  applicant’s  discharge  was  ordered  into
execution.  He was discharged with a bad conduct  discharge  on  8 May
64.  He was credited with 10 years, 6 months, and  25  days  of  total
active service, with 49 days of lost time.

Pursuant to the Board's request, the FBI, Clarksburg,  West  Virginia,
provided an investigative report which is attached at Exhibit C.

_________________________________________________________________

AIR FORCE EVALUATION:

AFLSA/JAJM indicated that under 10 USC 1552(f), the  AFBCMR’s  ability
to   correct   records   related   to   courts-martial   is   limited.
Specifically, 10 USC 1552(f) permits the correction  of  a  record  to
reflect  actions  taken  by  reviewing  authorities  under  the  UCMJ.
Additionally, it permits the correction of records related  to  action
on the sentence of courts-martial for the purpose of clemency.   Apart
from these two limited exceptions, the effect of  10  USC  1552(f)  is
that the AFBCMR  is  without  authority  to  reverse,  set  aside,  or
otherwise expunge a court-martial conviction that occurred on or after
5 May 1950 (the effective date of the UCMJ).  Although the AFBCMR  can
upgrade the applicant’s discharge to an administrative discharge as  a
means of clemency, the upgrade would not achieve his desire to expunge
his court-martial record.

As to the FBI record, AFLSA/JAJM stated it is their understanding that
action can be taken by AFOSI to correct any discrepancies.

A complete copy of the AFLSA/JAJM evaluation is at Exhibit D.

AFPC/DPPRS recommended denial indicating the applicant did not  submit
any new evidence or identify any errors or injustices that occurred in
the discharge processing.  He also provided  no  facts  warranting  an
upgrade in his discharge.

A complete copy of the AFPC/DPPRS evaluation is at Exhibit E.

_________________________________________________________________

APPLICANT'S REVIEW OF AIR FORCE EVALUATION:

Copies of the Air Force evaluations were forwarded to applicant on  14
May 04 for review and response.  As of this date, no response has been
received by this office (Exhibit F).

A copy of the FBI Report was forwarded to applicant on 9  Jun  04  for
review and response.  Applicant returned the AFBCMR letter, but, as of
this date, has not provided a response to the FBI report (Exhibit G).

_________________________________________________________________

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.  We note that this Board is not empowered to set aside, reverse, or
otherwise expunge the findings of guilty by a court-martial.   Rather,
in accordance with Title 10,  United  States  Code,  Section  1552(f),
actions by this Board are limited to  corrections  to  the  record  to
reflect actions taken by the reviewing officials  and  action  on  the
sentence of the court-martial for the purpose of clemency.  It is also
not within the purview of the Board to seal or expunge an FBI  record.
AFLSA/JAJM has indicated that the AFOSI may taken  action  to  correct
any discrepancies  in  the  FBI  record.   However,  no  discrepancies
between the court-martial and FBI records were noted.  In addition, we
find   no   evidence   which   indicates   the   applicant’s   service
characterization, which had its basis in  his  conviction  by  special
court-martial and was a part of the sentence of  the  military  court,
was improper or that it exceeded the  limitations  set  forth  in  the
Uniform Code of Military Justice (UCMJ).  Notwithstanding  the  above,
we note the applicant was discharged in 1964.  In view of the  passage
of time and the post-service documentation provided in support of  his
appeal, we believe the continued stigma of a bad conduct discharge  is
unduly harsh and no longer serves  any  useful  purpose.   We  do  not
believe an  honorable  discharge  is  warranted  due  to  the  limited
documentation provided by the applicant regarding his activities since
his discharge from the service.  However, we do believe upgrading  the
applicant’s  discharge  to  general,  based  on  clemency,  would   be
appropriate.  Accordingly, we recommend the  applicant’s  bad  conduct
discharge be upgraded to general.  We would also like  to  remind  the
applicant about the application process  for  a  Presidential  pardon,
which could  be  highly  significant  to  prospective  employers.   As
indicated in the AFLSA/JAJM advisory opinion which  he  was  provided,
the applicant may apply  for  a  Presidential  pardon  by  writing  to
AFLSA/JAJR, 112 Luke Avenue, Room 343, Bolling AFB, DC 20332-8000, for
the necessary forms and instructions.

_________________________________________________________________

THE BOARD RECOMMENDS THAT:

The pertinent military records of the  Department  of  the  Air  Force
relating to APPLICANT, be corrected to show that, on 8 May 64, he  was
discharged with service  characterized  as  general  (under  honorable
conditions).

_________________________________________________________________

The following members of the Board considered AFBCMR Docket Number BC-
2004-00673 in Executive Session on 14 Jul 04, under the provisions  of
AFI 36-2603:

      Ms. Olga M. Crerar, Panel Chair
      Mr. Michael J. Novel, Member
      Mr. Robert S. Boyd, Member

All members  voted  to  correct  the  records,  as  recommended.   The
following documentary evidence was considered:

     Exhibit A.  DD Form 149, dated 21 Feb 04, w/atchs.
     Exhibit B.  Applicant's Master Personnel Records.
     Exhibit C.  FBI Report.
     Exhibit D.  Letter, AFLSA/JAJM, dated 27 Apr 04.
     Exhibit E.  Letter, AFPC/DPPRS, dated 12 May 04.
     Exhibit F.  Letter, SAF/MRBR, dated 14 May 04.
     Exhibit G.  Letter, AFBCMR, dated 9 Jun 04.





                                   OLGA M. CRERAR
                                   Panel Chair



AFBCMR BC-2004-00673




MEMORANDUM FOR THE CHIEF OF STAFF

      Having received and considered the recommendation of the Air
Force Board for Correction of Military Records and under the authority
of Section 1552, Title 10, United States Code (70A Stat 116), it is
directed that:

      The pertinent military records of  the  Department  of  the  Air
Force relating to , be corrected to show that, on 8  May  64,  he  was
discharged with service  characterized  as  general  (under  honorable
conditions).








    JOE G. LINEBERGER

    Director

    Air Force Review Boards Agency