RECORD OF PROCEEDINGS
         AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS


IN THE MATTER OF:      DOCKET NUMBER:  BC-2006-00324
            INDEX CODE:  110.02
      XXXXXXX    COUNSEL:  NONE

      XXXXXXX    HEARING DESIRED:  YES


MANDATORY CASE COMPLETION DATE:  6 SEP 2007


_________________________________________________________________

APPLICANT REQUESTS THAT:

His Special Court  Martial  (SPCM)  conviction  be  corrected  to  not
guilty, loss of rank and pay restored and  he  be  paid  $205,000  for
false imprisonment, mental anguish and undue stress.

_________________________________________________________________

APPLICANT CONTENDS THAT:

He was denied due process, a  fair  trial,  the  representation  of  a
lawyer of his own choosing, and that the Air Force persuaded a witness
to testify against him.

In support of his request, the applicant provided a  copy  of  his  DD
Form 214, Armed Forces of the Unites  States  Report  of  Transfer  or
Discharge.

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

_________________________________________________________________

STATEMENT OF FACTS:

The applicant enlisted in the Regular Air Force as an airman basic  on
2 April 1964 for a term of 4 years.

He applicant was charged with two  specifications  under  Article  91,
UCMJ, for willfully disobeying the lawful orders of  a  superior  non-
commissioned officer regarding searching an area and  apprehending  an
individual; one specification of dereliction of duty under Article  92
for negligently failing to search an area and apprehend an individual,
and one specification under Article 92 for failing to obey an order to
turn in a pass by  curfew.   At  a  SPCM  on  25  February  1968,  the
applicant pled guilty to all specifications and was  sentenced  to  be
confined at hard labor for three months and forfeiture of  $96.00  per
month for three months.  He was reduced in  grade  from  airman  first
class to airman basic on 25 February 1968, per SPCM Order #2, dated  2
March 1968.

His enlistment was extended from 1 April 1968 to 23 June 1968, due  to
his confinement, but his date of separation from  active  duty  on  16
June 1968.  He received an honorable  discharge  classification.   The
applicant was transferred to the Reserve and served  two  years.   His
obligation expired on 1  April  1970  and  he  received  an  honorable
discharge.

He served 3 years, 11 months and 11 days on active duty.

_________________________________________________________________

AIR FORCE EVALUATION:

AFLSA/JAJM recommends denial and  states  the  applicant  provided  no
support for his request.  JAJM further states he did not  provide  any
facts to explain his tardiness in seeking relief almost 38 years after
his discharge, and no facts to support his claim that  his  conviction
or punishment was unjust.

According to JAJM, ordinarily  applicants  must  file  an  application
within three years after the error or injustice  was  discovered,  or,
with due diligence, should have been discovered.  This application was
received almost 38 years after his discharge without  explanation  for
the delay.  It is, therefore, untimely and should be  denied  on  that
basis.

JAJM states the application may also be denied as meritless.  Under 10
U.S.C. 1552(f), which amended the basic corrections board legislation,
the Air Force  Board  for  Correction  of  Military  Records  (AFBCMR)
ability to correct records  related  to  court-martials,  is  limited.
Specifically, 1552(f)(1) permits the correction of a record to reflect
actions taken by reviewing authorities under the UCMJ.   Additionally,
1552 permits the correction  of  records  related  to  action  on  the
sentence of court-martials for the purpose of  clemency.   Apart  from
these two limited exceptions, however, the effect of 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).

JAJM states the applicant is not contending that any specific  actions
have been taken by reviewing authorities that  require  correction  of
his record.  Thus, any decision regarding his discharge status must be
done as a matter of clemency.  The applicant, however, sets  forth  no
basis for clemency other than  allegations  that  he  was  denied  the
attorney of his choice.  The allegations are entirely  unsupported  by
any evidence.

JAJM concludes by stating disobedience of lawful orders  in  times  of
war is a serious crime.  As such, a  SPMC  is  an  appropriate  forum.
There is no evidence of impropriety in the manner in which the  court-
martial was conducted, and no evidence the applicant was not  afforded
all the rights accorded by law.  He chose  to  plead  guilty  to  each
speciation.  Given the sentence he received and that his discharge was
nevertheless characterized as Honorable, there is no evidence of clear
error or injustice related to the sentence.  There is,  therefore,  no
reason required by law to grant the relief requested.

The JAJM evaluation is at Exhibit C.

AFPC/DPPPWB recommends denial and states the application was not filed
within the three year  limitation  imposed  by  AFI  36-2603,  AFBCMR,
paragraph 3.5, 1 March 1996.  In addition to being untimely under  the
statute of limitations, the applicant’s request may also be  dismissed
under the equitable doctrine of laches, which denies relief to one who
has unreasonable and inexcusably delayed asserting  a  claim.   Laches
consists of two elements: Inexcusable delay and prejudice to  the  Air
force resulting there from.  In the applicant’s case, he  waited  over
37 years after discharge to petition to the AFBCMR.

DPPPWB also states AFLSA/JAJM reviewed this case and found no evidence
of impropriety in the manner in which the court-martial was conducted,
and no evidence the applicant was not afforded all rights accorded  by
law.  They also found no evidence of clear error or injustice  related
to the sentence.  Consequently, a change to the applicant’s  grade  is
neither warranted nor authorized.

The DPPPWB evaluation is at Exhibit D.

_________________________________________________________________

APPLICANT'S REVIEW OF AIR FORCE EVALUATION:

The applicant states that he appealed the court-martial decision twice
within two years of his conviction.  He received a letter  stating  he
received a fair trial and that his records would not be  changed.   He
did not wait 38 years to appeal his bogus  and  unfair  court-martial.
If the Air Force would produce his complete records  from  his  trial,
the record would show he made  two  appeals  of  the  decision.    The
reason he waited 36 additional years to re-apply for the correction of
his records is because he believes times have changed and he may  have
the support to successfully appeal.  He requested a specific  attorney
and the Air Force chose an officer from their own ranks  to  represent
him.   He states he did not plead guilty to each specification and  if
he had there would not have been a need for a court-martial.

Applicant’s complete response is at Exhibit F.



By letter  dated  6  April  2006,  the  applicant’s  Senator  provided
additional documentation from the applicant.

The complete submission, with attachments, is at Exhibit G.

_________________________________________________________________

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.  After  careful  consideration
of the available evidence, we found no evidence of impropriety in  the
manner in which the  court-martial  was  conducted,  no  evidence  the
applicant was not afforded all rights accorded by law in effect at the
time, or that the actions taken against the applicant  were  based  on
factors other than  his  own  misconduct.   Therefore,  based  on  the
available evidence of record, we find no basis upon which to favorably
consider 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(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-2006-
00324 in Executive Session on 9 May 2006, under the provisions of  AFI
36-2603:

                 Mr. James W. Russell III, Panel Chair
                 Mr. Steven A. Cantrell, Member
                 Ms. Mary C. Puckett, Member

The Board recommended denial of the application.  (Mr. Russell recused
himself.)  The following documentary evidence was considered:

      Exhibit A. DD Form 149, dated 25 Jan 06.
      Exhibit B. Applicant's Master Personnel Records.
      Exhibit C. Letter, AFLSA/JAJM, dated 16 Feb 06.
      Exhibit D. Letter, AFPC/DPPPWB, dated 28 Feb 06.
      Exhibit E. Letter, SAF/MRBR, dated 10 Mar 06.
      Exhibit F. Letter, Applicant, dated 27 Mar 06, w/atchs.
      Exhibit G. Letter, Senator Durbin, dated 6 Apr 06, w/atchs.






      JAMES W. RUSSELL III
      Panel Chair