RECORD OF PROCEEDINGS
AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS
IN THE MATTER OF: DOCKET NUMBER: BC-2005-03067
INDEX CODE: 100.00
XXXXXXX COUNSEL: NONE
XXXXXXX HEARING DESIRED: YES
MANDATORY CASE COMPLETION DATE: 8 April 2007
________________________________________________________________
APPLICANT REQUESTS THAT:
His Bad Conduct Discharge (BCD) be upgraded to a general discharge.
________________________________________________________________
APPLICANT CONTENDS THAT:
As a young person, he made some very bad choices while in the military.
The incidents leading to his discharge were alcohol related and he has not
had any alcohol in over 40 to 45 years. Since his discharge, he has
married and raised a family. He and his wife are active members of their
church. After many years of living a good and moral life, his BCD remains
as a blemish and is an embarrassment to him.
In support of the appeal, applicant submits letters of
recommendation/support from members of his community and his own personal
statement.
Applicant’s complete submission, with attachments, is at Exhibit A.
________________________________________________________________
STATEMENT OF FACTS:
Applicant contracted his initial enlistment in the Regular Air Force on 9
September 1957. On 6 May 1959, the commander preferred one charge of
assault with intent to commit grievous bodily harm in violation of Article
128 of the Uniform Code of Military Justice (UCMJ). On 21 May 1959, the
general court-martial convening authority referred the charge and
specification for trial by court-martial. Applicant pled not guilty to the
charge, but was found guilty. He was sentenced to a Bad Conduct Discharge
(BCD), confinement at hard labor for six months, forfeiture of all pay and
allowances for six months and reduction to the grade of basic airman. The
adjudged sentence was approved. Upon Article 74 Review, the BCD was
suspended until 31 July 1960, at which time it would be remitted without
further action; however, due to a separate incident of driving while
intoxicated it was vacated and the BCD discharge executed on 14 July 1960.
He was discharged with service characterized as under other than honorable
conditions and issued a DD Form 259AF (BCD Certificate). He was credited
with 2 years, 4 months, and 1 day of active service (excludes 203 days of
lost time due to confinement).
________________________________________________________________
AIR FORCE EVALUATION:
AFLSA/JAJM recommends the application be denied, and states, in part that
applicant has provided no evidence of a clear error or injustice related to
the sentence of his court-martial conviction. Although his apparent
exemplary life after his conviction is commendable, there is no reason
required by law to grant the requested relief. Applicant was given a
second chance and the Air Force was willing to allow him to serve out his
enlistment to earn an honorable discharge; however, the applicant was
involved in another incident and his dishonorable discharge was duly
executed. Applicant may apply for a Presidential pardon which has no legal
effect other than to express forgiveness by the United States at the
highest level. It cannot affect the findings and sentence of a court-
martial, reinstate one’s former status, nor upgrade a discharge/dismissal.
However, it can be highly significant to prospective employers, as well as
state and local authorities.
The AFLSA/JAJM evaluation is at Exhibit C.
________________________________________________________________
APPLICANT'S REVIEW OF AIR FORCE EVALUATION:
A complete copy of the evaluation was forwarded to the applicant on 6
January 2006, for review and comment, within 30 days. However, as of this
date, no response has been received by this office.
________________________________________________________________
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. Evidence has not been provided to show that the applicant's discharge
was erroneous or unjust. The applicant's discharge was based on his trial
and conviction by a general court-martial. While we are precluded by law
from reversing a court-martial conviction, we are authorized to correct the
records to reflect actions taken by reviewing officials and to take action
on the sentence of a military court based on clemency. While the evidence
provided indicates that the applicant has made a successful post-service
adjustment, there is nothing in the available record which would cause us
to disturb the actions of the reviewing officials in this case.
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(s) 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-2005-03067
in Executive Session on 14 February 2006, under the provisions of AFI 36-
2603:
Mr. Richard A. Peterson, Panel Chair
Ms. LeLoy W. Cottrell, Member
Ms. Cheryl V. Jacobson, Member
The following documentary evidence was considered:
Exhibit A. DD Form 149, dated 27 Sep 05, w/atchs.
Exhibit B. Applicant's Master Personnel Records.
Exhibit C. Letter, AFLSA/JA, dated 21 Dec 05.
Exhibit D. Letter, SAF/MRBR, dated 6 Jan 06.
RICHARD A. PETERSON
Panel Chair
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