RECORD OF PROCEEDINGS
         AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS


IN THE MATTER OF:      DOCKET NUMBER:  BC-2005-00303
            INDEX CODE:  A68.00

            COUNSEL:  NONE

            HEARING DESIRED:  NO

MANDATORY CASE COMPLETION DATE:  29 Jul 06

_________________________________________________________________

APPLICANT REQUESTS THAT:

The applicant, the son of the former servicemember who appears  to  be
acting on behalf of his mother, requests that his father’s bad conduct
discharge (BCD) be upgraded to honorable;  the  narrative  reason  for
separation be changed to alcohol dependent; and, that  he  be  awarded
the  back  pay  and  benefits  the  former  servicemember  lost  as  a
consequence of the BCD.

_________________________________________________________________

APPLICANT CONTENDS THAT:

The discharge was inequitable because it  was  based  on  an  isolated
incident in 12 years of service.   The  former  servicemember’s  prior
service records were not considered  during  his  court-martial.   His
confinement records were exceptional.  His career was destroyed by his
commanding officer, with extreme  prejudice.   He  was  disgraced  and
dishonored, and his family has suffered tremendous  anguish  and  pain
for 46 years.

Most veterans that were given BCDs  and  dishonorable  discharges  had
service-connected  disabilities.   In  1959  the  term  post-traumatic
stress disorder (PTSD) was not used.  Tremendous progress and  strides
have been made by the Air  Force  regarding  rehabilitative  programs,
including professional counseling involving  PTSD,  alcohol  and  drug
abuse, marriage  counseling,  financial  management,  and  retraining.
These are all now treatable and manageable in  2005.   If  the  former
servicemember had been given clemency and rehabilitative  cooperation,
he would have retired from the Air Force.

In support of his appeal, the applicant provided personal  statements,
supportive  statements,  extracts  from  the  former   servicemember’s
records, and other documents associated with the matter under review.

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

_________________________________________________________________

STATEMENT OF FACTS:

The former servicemember’s records were destroyed  by  fire  in  1973.
The available records indicate that on 17 Jun 59, he was convicted  by
general court-martial of making and uttering  four  worthless  checks,
absence without leave (AWOL) for twenty-four days, and two charges  of
larceny by check.  On 21 Dec 59, he was  discharged  and  furnished  a
BCD.

The remaining  relevant  facts  pertaining  to  this  application  are
contained in the letter prepared by the appropriate office of the  Air
Force.

The  Federal  Bureau  of  Investigation,  Clarksburg,  West  Virginia,
indicated that, on the basis of data furnished,  they  are  unable  to
locate an arrest record (Exhibit C).

_________________________________________________________________

AIR FORCE EVALUATION:

AFLSA/JAJM recommended denial noting that at a  general  court-martial
on 17 Jun 59, the applicant's father was tried and convicted of making
and uttering four worthless checks in violation of Article 134,  UCMJ;
absence without leave for twenty-four days in violation of Article 86,
UCMJ; and two charges of larceny by check in violation of Article 121,
UCMJ.  He was sentenced to a BCD, total forfeitures,  and  confinement
at hard labor for  one  year  and  reduction  to  airman  basic.   The
convening authority approved the sentence as adjudged.  On 6  Nov  59,
the Board of Review  (the  predecessor  to  the  Air  Force  Court  of
Criminal Appeals) affirmed the findings and  sentence.   However,  the
Board recommended clemency consideration.  The Board stated, "In  view
of almost seven months pretrial confinement and  half  of  confinement
imposed  having   been   served,   the   Board   recommends   clemency
consideration to full restoration of duty with provision for automatic
remission  of  bad  conduct   discharge."    The   Board   made   this
recommendation despite the interviewing judge  advocate,  staff  judge
advocate (SJA) and his immediate  commander's  recommendation  against
clemency.  On 12 Nov 59, The Judge Advocate General (TJAG)  concurred,
but indicated his concern  as  to  what  disposition  should  be  made
regarding the applicant's father's case.   The  Director  of  Military
Justice noted TJAG's concern in the transmittal letter and stated  the
applicant's father had done outstanding  work  in  the  past  and  the
consensus of  opinion  of  the  corrections  personnel  was  that  the
applicant's father should  be  restored  to  duty  in  a  probationary
status.  TJAG indicated  the  applicant's  father's  commander  should
consider TJAG's concern and the Board of Review's recommendation  when
conducting the commander's clemency review of Pacific area  returnees.
On 17 Nov  59,  having  been  served  notice  of  that  decision,  the
applicant's father stated he did  not  wish  to  petition  the  United
States Court of Military Appeals for a grant of  review.   Though  the
commander indicated his intent  to  grant  clemency,  the  applicant's
father's concern about his family's situation preempted his desire  to
continue service.  The  application  package  highlights  a  "Clemency
Report Re: TSgt J--- M. Mc---," dated 29  June  1959,  from  the  Base
Confinement Facility of the 601st  Air Police squadron  to  the  Staff
Judge Advocate, which advocates for the applicant's father's return to
service for good behavior.  The report notes  the  applicant's  father
was interviewed and expressed that his  sentence  was  just  and  fair
under the circumstances.  In  another  document,  a  rebuttal  to  his
immediate commander's negative clemency  evaluation,  the  applicant's
father acknowledged his wrongdoing, and limited his  rebuttal  to  the
commander's  description  of  his  character  and  qualifications  for
further honorable service in  the  Air  Force.   In  a  letter,  dated
22 Dec 59, from the 4th Air Force,  the  SJA  stated  the  applicant's
father had arrived to the confinement facility at Hamilton  Air  Force
Base California, in Nov 59, and was specifically being considered  for
restoration and clemency.  However, the applicant's father's financial
and personal affairs were not in order, and his wife  was  excessively
stressed  and  seeking  assistance  from  various  congressional   and
government officials.  Based on his personal circumstances, though  he
stated a desire to continue to serve, the applicant's father requested
an expedited BCD and a remitting of his confinement.  His request  was
granted when the  Commander,  4th  Air  Force,  approved  his  BCD  on
16 Dec 59, remitting all unexecuted confinement past 21 Dec 59.

AFLSA/JAJM indicated that under 10 U.S.C. §1552(f), which amended  the
basic corrections 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 UCMJ).

The applicant is not contending that a specific error has occurred [in
his father’s records] which requires  the  correction  of  the  court-
martial record and there is no indication in the  record  of  such  an
error. Thus, any decision  by  the  Board  regarding  the  applicant's
father’s discharge status would be done as a matter of clemency.

The applicant is contending that the mitigating circumstances were not
properly taken into consideration by the court in 1959, and that since
that time, the law and the military's approach to  mental  health  and
substance abuse issues have changed.  As a consequence,  his  father's
case should be reviewed based on today's standards.

However, the Air Force did consider the applicant's  father’  personal
and mitigating circumstances and were poised  to  remit  the  BCD  and
return the applicant’s  father  to  duty.   The  former  servicemember
declined to return to duty based on the health of  his  wife  and  her
ability to take care of their three children.

AFLSA/JAJM stated they found no error or injustice in this  case.  But
for the  former  servicemember’s  desire  to  separate,  the  evidence
indicated he would likely have returned to active duty and likely have
completed his career.  Under these circumstances they do not recommend
granting the application for error or injustice.  Clemency  is  within
the  Board's  discretion  and  based  on  the  extensive   information
contained in the file of the intent to remit the BCD and return him to
duty, upgrade of the applicant's  discharge  to  a  general  discharge
under honorable conditions may be  warranted.  However,  there  is  no
legal justification for awarding pay and benefits as  the  applicant’s
father chose not to continue to serve.

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

_________________________________________________________________

APPLICANT'S REVIEW OF AIR FORCE EVALUATION:

The former servicemember’s spouse provided a response indicating  that
her husband led a  productive  life  after  his  discharge,  and  that
clemency is warranted based  on  his  post-service  citizenship.   Her
husband wanted to serve but was not given the  opportunity  to  serve.
Therefore, it is legally  and  morally  justified  to  award  pay  and
benefits to her (Exhibit F).

The  applicant  provided  a   subsequent   response   and   additional
documentary evidence for the Board’s consideration, which is  attached
at Exhibit H.

The former servicemember’s spouse provided another response, which  is
attached at Exhibit I.

_________________________________________________________________

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.   We  note  that  this  Board  is
without authority to reverse, set aside, or otherwise expunge a court-
martial conviction occurring on or after 5 May 1950.  Rather,  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.  There  is  nothing  in
the evidence provided,  other  than  the  applicant’s  unsubstantiated
allegations, which would lead us to  believe  that  a  change  to  the
actions of any of the reviewing officials is warranted.  We also  find
no  evidence  which  indicates  the  former  servicemember’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 or that it exceeded the  limitations  set  forth  in  the
UCMJ.  In view of the foregoing, we agree with the opinion prepared by
AFLSA/JAJM and adopt its rationale as the basis for our decision  that
the applicant has failed to sustain his  burden  of  establishing  the
former  servicemember  suffered  either  an  error  or  an  injustice.
Accordingly, we  find  no  compelling  basis  to  recommend  favorable
consideration on the applicant’s request  the  former  servicemember’s
narrative reason for separation be changed, and he  receive  back  pay
and benefits lost as a consequence of the BCD.

4.  Notwithstanding the above, we did note  the  former  servicemember
was discharged in 1959, and that prior to his discharge, there was  an
apparent intent to remit his BCD and return him to duty.  Furthermore,
it  appears  he  made  a  successful  transition  to  civilian   life.
Therefore, we believe the continued stigmatization of the BCD would be
unduly harsh and serves no purpose.  We do not  believe  an  honorable
discharge is warranted due to the limited  documentation  provided  by
the applicant regarding the former  servicemember’s  activities  since
his discharge from the service.  However, in view of the foregoing, we
are of the opinion that upgrading the former servicemember’s discharge
to general, based on clemency, would be appropriate.  Accordingly,  we
recommend the former servicemember’s BCD be upgraded to general.

_________________________________________________________________

THE BOARD RECOMMENDS THAT:

The pertinent military records of the  Department  of  the  Air  Force
relating to the FORMER SERVICEMEMBER, be corrected to show  that  that
on 21 Dec 59, he was discharged with service characterized as  general
(under honorable conditions).

_________________________________________________________________

The following members of the Board considered AFBCMR Docket Number BC-
2005-00303 in Executive Session on 26 Jul 05, under the provisions  of
AFI 36-2603:

      Mr. Michael J. Novel, Panel Chair
      Ms. Janet I. Hassan, Member
      Ms. Marcia Jane Bachman, Member

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

     Exhibit A.  DD Form 149, dated 1 Feb 05, w/atchs.
     Exhibit B.  Applicant's Master Personnel Records.
     Exhibit C.  Negative FBI Report.
     Exhibit D.  Letter, AFLSA/JAJM, dated 13 Apr 05.
     Exhibit E.  Letter, SAF/MRBR, dated 15 Apr 05.
     Exhibit F.  Letter from former servicemember’s spouse,
                 dated 3 May 05.
     Exhibit G.  Letter, AFBCMR, dated 10 May 05.
     Exhibit H.  Letter, applicant, dated 16 May 05, w/atchs.
     Exhibit I.  Letter from former servicemember’s spouse,
                 dated 17 May 05.




                                   MICHAEL J. NOVEL
                                   Panel Chair





AFBCMR BC-2005-00303




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 21 Dec 59, he was
discharged with service characterized as general (under honorable
conditions).





    JOE G. LINEBERGER

    Director

    Air Force Review Boards Agency