RECORD OF PROCEEDINGS
             AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS

IN THE MATTER OF:                       DOCKET NUMBER:  BC-2005-02805
                                             INDEX CODE:  100.00
      XXXXXXX                           COUNSEL:  NONE

      XXXXXXX                           HEARING DESIRED:  YES


MANDATORY CASE COMPLETION DATE:  14 MARCH 2007


________________________________________________________________

APPLICANT REQUESTS THAT:

He be reinstated to the rank of airman first class  (E-4),  and  he  receive
all back pay with interest.

________________________________________________________________

APPLICANT CONTENDS THAT:

He was struck by a colonel when he called him into his office. He was  given
a special court-martial on August 24, 1964. He was charged with  (1)  a  20-
minute AWOL; (2) a three-hour AWOL; (3) failing to obey a legal  and  lawful
order; and, (4) disrespect to a superior officer.  He  served  three  months
of hard labor at Amarillo retraining center in Amarillo, TX.

In support of his application, applicant provided a personal  letter  and  a
letter from his first sergeant.

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

________________________________________________________________

STATEMENT OF FACTS:

Applicant contracted his initial enlistment in the Regular Air Force  on  25
August 1960 for a period of 4 years. He was promoted to the grade of  airman
first class (E-4) with a date of rank of 1 February 1964.

A special count-martial convicted the applicant for failure  to  go  to  his
appointed place of duty, disobeying a lawful order  and  showing  disrespect
towards his squadron commander. He was sentenced  to  be  confined  at  hard
labor for four months and forfeiture of $73.00 per month  for  four  months.
The sentence was adjudged on 18 August 1964.



The applicant was separated from the Air Force 14 December  1964  under  the
provisions of Section 1552, Title 10, US Code (70A Stat 116) with  an  under
honorable conditions discharge. He had served on active duty  for  a  period
of 3 years, and 6 months.

On 30 October 1974, the Assistant Secretary of the Air  Force  Manpower  and
Reserve Affairs corrected the applicant’s record to show he  was  discharged
from the service on 14 December 1964  under  the  provisions  of  AFR  39-14
(Convenience  of  the  Government)  and  furnished  an  Honorable  Discharge
certificate.

On 15 November 2005, AFPC/DPPPWB administratively corrected the  applicant’s
DD Form 214, Certificate  of  Release  or  Discharge  from  Active  Duty  to
reflect he was discharged in the grade of airman first class.

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AIR FORCE EVALUATION:

DFAS-POCC/DE states, based on nonavailability of records to  verify  if  the
applicant did or did not receive pay and allowances, they  recommend  denial
of the request. The applicant’s pay records are  no  longer  available  from
1964 to verify whether or not the applicant was ever reduced in grade.  When
Government records are no longer available and the applicant  is  unable  to
provide sufficient evidence his request is  valid,  the  request  should  be
denied.

DFAS-POCC/DE’s complete evaluation is at Exhibit C.

________________________________________________________________

APPLICANT'S REVIEW OF AIR FORCE EVALUATION:

Applicant reviewed the Air Force evaluation and  stated  since  the  charges
against him were all lies, then he should be exonerated and made  whole  for
the effect it has had on his life, even to this day.

He was denied an opportunity to work as an aircraft  mechanic  for  whom  he
was highly qualified and as a police officer due to the same.

Due to his faith in God, he has made it despite the  wrongful  court-martial
and discharge.

He had a copy of his court-martial, dated August 24,  1964,  which  included
his discharge, grade and pay.  However, at this time  he  could  not  locate
the documentation.  Once he locates it, he will make a copy and  forward  to
the Board.

Applicant’s complete response is at 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 to timely file.

3.  Insufficient relevant evidence has been  presented  to  demonstrate  the
existence of an error or injustice warranting payment of pay and  allowances
at the grade of airman first class. In this respect, we note that  based  on
the rules in effect at that time of the applicant's 1964  court-martial,  if
a sentence included a punitive discharge,  confinement  at  hard  labor,  or
hard labor without confinement but did not expressly provide  for  reduction
in rank to the lowest enlisted  grade,  the  commander  had  the  option  to
retain the applicant in his present grade provided the  execution  of  those
portions of the sentence involving punitive discharge, confinement  at  hard
labor, and hard labor without confinement were suspended.  However,  if  the
commander did not suspend those particular portions  of  the  sentence,  the
reduction to the lowest enlisted grade was automatic  under  Article  58(a),
UCMJ. Meanwhile, on 18 February 1975, some ten years after  the  applicant's
court-martial, the Secretary of the Air Force signed  a  memorandum  to  the
Judge Advocate General that changed  the  automatic  reduction  in  rank  on
airmen tried on and after 1 May  1975.  The  Board  notes  that,  while  the
reinstatement of the applicant's grade to airman first class by  AFPC/DPPPWB
may be in error, we can not take an action that is detrimental to  him  even
if we were predisposed to do so. We are not inclined,  however,  to  further
compound this error by  acting  favorably  on  the  applicant's  request  to
reinstate the erroneous promotion with payment of back  pay  with  interest.
As a matter of information we lack the authority  to  pay  interest  on  any
claim.   In view of the foregoing and in the  absence  of  evidence  to  the
contrary, we find no compelling  basis  to  recommend  granting  the  relief
sought in this application.

4.  The applicant's case is adequately documented and it has not been  shown
that a personal appearance with or without counsel will  materially  add  to
our understanding of the issue  involved.   Therefore,  the  request  for  a
hearing is not favorably considered.

________________________________________________________________

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  Docket  Number  BC-2005-02805
in Executive Session on 4 May 2006, under the provisions of AFI 36-2603:

                       Mr. Wayne R. Gracie, Panel Chair
                       Ms. BJ White-Olson, Member
                       Mr. Alan A. Blomgrem, Member

The following documentary evidence was considered:

    Exhibit A.  DD Form 149, dated 3 Sep 05, w/atchs.
    Exhibit B.  Applicant's Master Personnel Records.
    Exhibit C.  Letter, DFAS-POCC/DE, dated 15 Feb 06.
    Exhibit D.  Letter, SAF/MRBR, dated 24 Feb 06.
    Exhibit E.  Applicant's Response, dated 28 Feb 06




                                   WAYNE R. GRACIE
                                   Panel Chair