RECORD OF PROCEEDINGS
             AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS

IN THE MATTER OF:      DOCKET NUMBER:  BC-2004-00810
                             INDEX CODE:  110.00

                             COUNSEL: AMERICAN LEGION

                             HEARING DESIRED: No

_________________________________________________________________

APPLICANT REQUESTS THAT:

His bad conduct discharge (BCD) be upgraded to an honorable or general
discharge.
_________________________________________________________________

APPLICANT CONTENDS THAT:

The applicant did not provide any statements regarding his discharge.

Applicant's complete submission is attached at Exhibit A.

_________________________________________________________________

STATEMENT OF FACTS:

Applicant enlisted in the Regular Air Force on 30 September 1954 for a
period of four years.

On 23 May 1957,  the  applicant  received  an  Article  15  for  being
disrespectful in his language to a non-commissioned officer.   He  was
reduced to the grade airman third class.

On 30 August 1957, the applicant was tried  by  Special  Court-Martial
for assaulting four Okinawans and resisting  apprehension.   For  this
misconduct, his punishment consisted of confinement at hard labor  for
30 days and forfeiture of $35.00 a month for three months.

The applicant was arraigned and tried by general court-martial  on  27
December 1957 for the following:

      Charge I, in violation of Article 128, Uniform Code of  Military
Justice (UCMJ), the applicant, on or about 1 December 1957,  assaulted
a taxi driver by pointing a carbine (short barreled  firearm)  at  his
stomach, ordered him to drive off base and if  he  stopped,  he  would
shoot him.

      Charge II, Specification I, the  applicant,  on  or  1  December
1957, stole 60 Class B Yen, of a value of $.50.

       Charge  II,  Specification  II,  the  applicant,  on  or  about
1 December 1957, did wrongfully appropriate a automobile, of  a  value
of more than $50.00.

He was found guilty on all charges and specifications and sentenced to
a dishonorable discharge, forfeiture of  all  pay  and  allowance  and
confinement at hard labor for one year.  The sentenced was adjudged on
30 January 1958.

On 6 March 1958, the convening authority approved only so much of  the
sentence as provided for the  dishonorable  discharge,  forfeiture  of
$63.00 per month for one year and confinement at hard  labor  for  one
year, with suspended execution of the dishonorable discharge until the
applicant’s release from confinement or until the  completion  of  the
appellate review whichever was the later date.

On 25 April 1958, the Board of Review affirmed only  so  much  of  the
approved sentence as provided for a BCD  (suspended),  confinement  at
hard labor for one year and forfeiture $39.00 per month for one year.

On 4 October 1958, the applicant, while serving in the grade of airman
third class, was discharged with a BCD.  He served 4 years,  9  months
and 20 days of active duty service.

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

_________________________________________________________________

AIR FORCE EVALUATION:

AFLSA/JAJM states an application must  be  filed  within  three  years
after the error or injustice was discovered, or, with  due  diligence,
should have been discovered.  An application  may  be  denied  on  the
basis of being untimely, however, an untimely filing may be excused in
the interest of justice.

Under 10 USC Section 1552(f), which amended the basic correction board
legislation, the AFBCMR’s ability to correct records related to courts-
martial is limited.   Specifically,  Section  1552(f)(1)  permits  the
correction  of  a  record  to  reflect  actions  taken  by   reviewing
authorities  under  the  Uniform  Code  of  Military  Justice  (UCMJ).
Additionally, Section 1552(f)(2) 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
Section 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 UMCJ).

They  further  state  there  is  no  legal  basis  for  upgrading  the
applicant’s discharge.  His sentence was within the prescribed  limits
and was a matter within the discretion of the court-martial and  could
have been mitigated by the convening authority or during the course of
the  appellate  review.   The  applicant  was  afforded   all   rights
guaranteed by statute and regulation.  He has provided  no  compelling
basis based on the circumstances of his  case  that  would  warrant  a
change in his discharge.

AFLSA/JAJM further states that while clemency is an option,  there  is
no reason for the Board to exercise clemency in the applicant’s  case.
The applicant did not serve honorably  during  this  enlistment.   The
military judge, convening authority and the appellate court believed a
BCD appropriately characterized the applicant’s military  service  and
crimes.   Although  the  applicant’s  adjudged  sentence  included   a
dishonorable discharge  and  total  forfeitures,  his  punishment  was
mitigated with an upgraded discharged--a BCD and forfeiture of  $39.00
pay per month for 12 months.   So,  the  applicant  was  granted  some
clemency.  The applicant has  not  presented  sufficient  evidence  to
warrant upgrading his  discharge  and  they  recommend  the  requested
relief be denied.

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

AFPC/DPPRS states the applicant did not provide any  new  evidence  or
identify any errors or injustices that occurred in the  processing  of
his discharge.  They believe the applicant's discharge was  consistent
with the procedural and  substantive  requirements  of  the  discharge
regulation; and the discharge was within the sound discretion  of  the
discharge authority.  DPPRS recommends denying the requested relief.

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

_________________________________________________________________

APPLICANT'S REVIEW OF AIR FORCE EVALUATION:

The applicant reviewed the Air Force  evaluation  and  states  he  was
young and experiencing personal problems.  He felt he had  no  one  to
talk to about his problems and turned to drinking, thinking  it  would
help his situation.

The applicant’s complete response, with attachments,  is  attached  at
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 of timely file.

3.    Insufficient relevant evidence has been presented to demonstrate
the existence of probable error or injustice.  No  evidence  has  been
presented to indicate the applicant’s service characterization,  which
had its basis in his conviction by general  court-martial  and  was  a
part of the sentence of the military court, was improper.  We note the
Board of Review afforded the applicant some  measure  of  clemency  by
approving a BCD rather than a dishonorable discharge  and  forfeitures
of $39.00 monthly for one year rather than forfeitures of all pay  and
allowances for one year.  Furthermore, because of the  short  duration
of the applicant’s service and the  serious  nature  of  the  offenses
committed, we do not find  upgrading  the  applicant’s  BCD  based  on
clemency is appropriate in this case at this time.   In  view  of  the
foregoing, we agree with the opinion prepared by AFLSA/JAJM and  adopt
their rationale as the basis for our decision the applicant has failed
to sustain his burden of establishing he has suffered either an  error
or an injustice.  We reviewed the post-service documentation  provided
by the applicant in support  of  his  appeal.   However,  due  to  its
limited nature, we do not find the documentation sufficient to warrant
favorable action based on clemency at  this  time.   In  view  of  the
above, we conclude no basis exists to recommend  favorable  action  on
the applicant’s request that his bad conduct discharge be upgraded.

_________________________________________________________________

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  in
Executive Session on 4 August 2004, under the provisions  of  AFI  36-
2603:


                       Mr. Joseph A. Roj, Panel Chair


      Mr. Michael J. Novel, Member

                       Mr. Clarence D. Long III, Member
The following documentary evidence relating to AFBCMR Docket Number BC-
2004-00810 was considered:

   Exhibit A.  DD Form 149, dated 5 Mar 04.
   Exhibit B.  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 26 May 04, w/atch.
   Exhibit H.  Letter, Applicant’s Response, undated, w/atchs.
   Exhibit I.  Letter, Applicant, dated 21 Jun 04.
   Exhibit J.  Letter, AFBCMR, dated 23 Jun 04, w/atchs.
   Exhibit K.  Letter, AFBCMR, dated 23 Jun 04, w/atch.




                                        JOSEPH A. ROJ
                                        Panel Chair