RECORD OF PROCEEDINGS
         AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS

IN THE MATTER OF:      DOCKET NUMBER:  BC-2005-03378
            INDEX NUMBER:  110.00
      XXXXXXX    COUNSEL:  None

      XXXXXXX    HEARING DESIRED:  No


MANDATORY CASE COMPLETION DATE:  4 May 07


_________________________________________________________________

APPLICANT REQUESTS THAT:

His Bad Conduct discharge be upgraded to the highest level possible.
_________________________________________________________________

APPLICANT CONTENDS THAT:

He does not believe he should be penalized for one mistake.  His  life
as a whole has been a good one.  He believes the type of discharge  he
received was too severe for the action that occurred.

In support of his appeal, applicant provides a copy  of  his  DD  Form
214, a card showing  his  designation  as  a  minister,  and  numerous
character references.

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

_________________________________________________________________

STATEMENT OF FACTS:

The applicant, then an Airman Third Class, was tried before a  general
court-martial  on  5  and  6  Aug  53.   He  was  charged   with   one
specification of assault in violation of Article 128, UCMJ.   He  pled
not guilty, but was found guilty of assault on  an  airman  by  “means
likely to produce grievous bodily harm, to wit: a knife.”   The  facts
were the applicant had been drinking, apparently  excessively,  argued
with another airman and sliced the other airman’s arm and abdomen with
a knife.  The applicant claimed he was drunk and  knew  nothing  about
the fight.  Witnesses saw the fight, saw the bleeding airman, but  did
not see the knife.

The applicant was sentenced to a bad-conduct discharge, confinement at
hard labor for two years, and forfeiture of all  pay  and  allowances.
On 22 Sep 53, the convening authority approved so much of the sentence
that included a bad conduct discharge, confinement at hard  labor  for
one year, and forfeiture of all pay and allowances.

The Air Force Board of  Review  reviewed  the  applicant’s  conviction
pursuant to Article 66, UCMJ, and on 28 Oct 53 affirmed the conviction
and the approved sentence.  The applicant requested he be restored  on
active duty, but his request was denied.  He was discharged as  of  17
Dec 53 and served out his sentence without incident.  He was given  an
early release for good time served.  He was released from  confinement
on about 21 May 54.

_________________________________________________________________

AIR FORCE EVALUATION:

AFLSA/JAJM recommends denial of the applicant’s request.   They  state
the applicant’s punitive discharge accurately reflects  the  character
of his service.  The maximum punishment authorized  for  the  offenses
for which the applicant was convicted was  a  dishonorable  discharge,
forfeiture of all pay and allowances, and confinement  at  hard  labor
for three years.  Despite the applicant’s  contentions,  the  sentence
was not disproportionate to either the offenses or his prior  military
record.  Conversely, the requested relief,  an  upgrade  in  discharge
characterization,  even  to  general  (under  other   than   honorable
conditions), is inappropriate given the seriousness of the applicant’s
offense.

The complete evaluation is at Exhibit C.

_________________________________________________________________

APPLICANT'S REVIEW OF AIR FORCE EVALUATION:

A copy of the Air Force evaluation was forwarded to the  applicant  on
20 Jan 06 for review and comment within 30 days.  To date, a  response
has not been received.

_________________________________________________________________

FBI REPORT:

Pursuant to the Board’s request, the FBI  provided  a  report  on  the
applicant.  A copy was forwarded to him on 7 Mar  06  for  review  and
comment within 30 days.  To date, a response has not been received.

A copy of the report 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  error  or  injustice.   We  took  notice  of   the
applicant's complete submission in judging the  merits  of  the  case;
however, we agree with the opinion and recommendation of the Air Force
office of primary responsibility and adopt its rationale as the  basis
for our conclusion that the applicant has not been the  victim  of  an
error  or  injustice.   Additionally,  we   considered   whether   the
applicant’s request merited relief on the basis of clemency.  However,
given the seriousness of the misconduct which led to  the  applicant’s
bad conduct discharge and  the  fact  that  his  FBI  report  reflects
illegal activity more than 30 years after his discharge from  the  Air
Force,  we  conclude  that  clemency  is  not  appropriate.   Finally,
although the applicant submitted a number of letters attesting to  his
character, we note most were form letters  and  did  not  provide  any
detail regarding  his  post-service  activities.   Therefore,  in  the
absence of evidence to the contrary, we find no  compelling  basis  to
recommend granting the relief sought in this application.

_________________________________________________________________

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-
03378 in Executive Session on 4 April 2006, under  the  provisions  of
AFI 36-2603:

      Mr. Thomas S. Markiewicz, Chair
      Ms. Mary C. Puckett, Member
      Ms. Janet I. Hassan, Member

The following documentary evidence was considered:

    Exhibit A.  DD Form 149, dated 1 Oct 06, w/atchs.
    Exhibit B.  Applicant's Master Personnel Records.
    Exhibit C.  Memorandum, AFLSA/JAJM, dated 10 Jan 06.
    Exhibit D.  Letter, SAF/MRBR, dated 20 Jan 06.
    Exhibit E.  FBI Report.
    Exhibit F.  Letter, AFBCMR, dated 7 Mar 06.




                                   THOMAS S. MARKIEWICZ
                                   Chair