RECORD OF PROCEEDINGS
             AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS

IN THE MATTER OF:      DOCKET NUMBER:  BC-2005-00906
            INDEX CODE:  123.07

            COUNSEL:  NONE

            HEARING DESIRED:  NO


MANDATORY CASE COMPLETION DATE:  16 SEP 06


_________________________________________________________________

APPLICANT REQUESTS THAT:

The 24 days of confinement he served as the result of an Article 15 be
removed from his records.

_________________________________________________________________

APPLICANT CONTENDS THAT:

He received an Article 15 for being late for duty.  The E-6 in  charge
of the duty section told him he was a  problem  airman  and  he  (E-6)
would see that an example  was  made  of  him.   He  would  like  this
corrected before he goes to his grave knowing that he had an honorable
career.

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

EXAMINER’S NOTE:  The applicant received the confinement as the result
of a summary court-martial, not a prior Article 15.

________________________________________________________________

STATEMENT OF FACTS:

The  applicant  enlisted  in  the  Regular  Air   Force   (RegAF)   on
16 September 1954 for a period of four years as an airman second class
(A/2C).  He served on continuous active  duty  and  was  progressively
promoted to the grade of senior master sergeant (SMSgt).

On 8 October 1956, the applicant received  an  Article  15  for  being
derelict in his duties for drinking alcoholic  beverages,  failing  to
report the presence of females and being disorderly  in  the  squadron
living area.  For this misconduct, the applicant received a  reduction
in rank.

On 22 October 1956, the  applicant  was  tried  and  found  guilty  by
summary court-martial for failing to report to duty at the  prescribed
time to his  appointed  place  of  duty.   For  this  misconduct,  the
applicant received 30 days confinement and forfeiture  of  $45.00  pay
for one month.

The applicant retired on 1 August 1979 with service  characterized  as
honorable.  He served 24 years, 9 months and 15 days  of  active  duty
service.

_________________________________________________________________

AIR FORCE EVALUATION:

AFLSA/JAJM states at the time of the applicant’s court-martial  (which
he is confusing with a prior nonjudicial punishment under Article 15),
he pled guilty to and was  found  guilty  of  failure  to  go  to  his
appointed place of duty. He was sentenced to confinement at hard labor
for 30 days and forfeiture of  $45.00  of  pay  for  one  month.   The
applicant served 24 days of the confinement.

AFLSA/JAJM further 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.   The  applicant’s  request  comes
almost 50 years  after  his  court-martial.   The  applicant  has  not
provided any facts that would allow his lateness to be executed 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 that there is  no  legal  basis  for  granting  the
requested relief.  His sentence was within the prescribed  limits  and
was a matter within the discretion of the court-martial.  Although the
applicant was sentenced to 30 days of confinement, he only  served  24
days.  He had the opportunity to present  extenuating  and  mitigating
matters in their most favorable light
to the court and convening authority.  The applicant was afforded  all
rights granted by statute and regulation.

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

_________________________________________________________________

APPLICANT'S REVIEW OF AIR FORCE EVALUATION:

The applicant reviewed the Air Force evaluation and states although he
may have confused the Article 15 and summary  court-martial  he  still
believes the punishment was too harsh.  The evaluation states he  only
served 24 days of the confinement, but it does not  state  the  reason
was due to his impeccable behavior.

He was not involved at all with the females and there was  no  alcohol
involved. He told his hut-mates to get rid of the women.  He  accepted
the punishment because he was the  Charge  of  Quarters  and  did  not
report his friends, as he should have in accordance  to  the  squadron
operating procedures.

His outstanding military records speak for  themselves,  and  requests
the Board takes a look at the “big picture” and  grant  the  requested
relief (Exhibit E).

_________________________________________________________________

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.    Sufficient relevant evidence has been presented  to  demonstrate
the existence of an error or an injustice to warrant  partial  relief.
The evidence reflects the applicant was  found  guilty  by  a  Summary
court-martial for failing to report to duty and was  sentenced  to  30
days of  confinement  and  forfeiture  of  pay.   The  punishment  the
applicant is contesting was as a result of his conviction  by  summary
court-martial.  While the punishment may have been  justified  at  the
time, the Board believes it would be an injustice for the applicant to
continue to live with the stigma of the  punishment  in  view  of  his
apparent youth at the  time  of  the  misconduct,  and  his  continued
outstanding career in the  Air  Force.   Therefore,  we  believe  that
corrective  action  is  appropriate  on   the   basis   of   clemency.
Accordingly, we recommend that his records be corrected to the  extent
indicated below.

_________________________________________________________________

THE BOARD RECOMMENDS THAT:

The pertinent military records of the  Department  of  the  Air  Force
relating to APPLICANT, be corrected  to  set  aside  so  much  of  the
sentence of the Summary Court-Martial Order #13, Headquarters Northern
Air Materiel Area, Europe,  APO  124,  USAF,  dated  22 October  1956,
relating to confinement at hard labor for 30 days,  and  that  the  24
days of time lost were considered creditable service for all purposes,
and all references to the time lost be deleted from his records.

_________________________________________________________________

The following members of the Board considered AFBCMR Docket Number BC-
2005-00906 in Executive Session on 8 June 2005, under  the  provisions
of AFI 36-2603:

                             Mr. Michael K. Gallogly, Panel Chair
                             Ms. Dorothy P. Loeb, Member
                             Mr. Clarence D. Long III, Member

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

      Exhibit A. DD Form 149, dated 8 Mar 05, w/atchs.
      Exhibit B. Master Personnel Records.
      Exhibit C. Letter, AFLSA/JAJM, dated 14 Apr 05.
      Exhibit D. Letter SAF/MRBR, dated 29 Apr 05.
      Exhibit E. Letter, Applicant’s Response, dated 3 May 05.




                             MICHAEL K. GALLOGLY
                             Panel Chair






AFBCMR BC-2005-00906





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 set aside so much of the
sentence of the Summary Court-Martial Order #13, Headquarters Northern
Air Materiel Area, Europe, APO 124, USAF, dated 22 October 1956,
relating to confinement at hard labor for 30 days, and that the 24
days of time lost were considered creditable service for all purposes,
and all references to the time lost be deleted from his records.




                             JOE G. LINEBERGER
                             Director
                             Air Force Review Boards Agency