RECORD OF PROCEEDINGS
             AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS


IN THE MATTER OF:      DOCKET NUMBER:  BC-2006-00337
            INDEX CODE:  105.00

            COUNSEL:  NONE

            HEARING DESIRED:  NO

MANDATORY CASE COMPLETION DATE:  6 AUG 07

_________________________________________________________________

APPLICANT REQUESTS THAT:

All documents  referencing  his  1965  court-martial  be  removed  from  his
records.

_________________________________________________________________

APPLICANT CONTENDS THAT:

All charges pertaining to his 1965 court-martial were dismissed on 19  April
1966 in accordance with  General  Court-Martial  Order  Number  10  and  all
records concerning the court-martial were to be removed.

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

_________________________________________________________________

STATEMENT OF FACTS:

On 3 September 1963, the applicant enlisted in the Regular Air Force in  the
grade of airman basic for a period of four years.

On 26 May 1965 the  applicant  was  convicted  by  a  general  court-martial
(General Court-Martial Order No. 32)  for  violating  Article  123,  Uniform
Code of Military Justice  (UCMJ).   He  did,  at  Langley  Air  Force  Base,
Virginia, on or about 16 December 1964,  with  intent  to  defraud,  falsely
alter a check by changing the amount of the payment from $38.19  to  $88.19.
He was sentenced to a reduction in grade from airman third class  to  airman
basic, confinement at hard labor for one year, and a bad conduct  discharge.
 The sentence was adjudged on 2 April 1965.

The General Court-Martial Post Trial Clemency Report  indicates  the  Acting
and Staff Judge Advocate found the applicant  was  a  proper  candidate  for
rehabilitation, and strongly recommended the applicant be  assigned  to  the
3320th Retraining Group, Amarillo Air  Force  Base,  Texas,  and  thereafter
retained in the Air Force.

The rebuttal to the  Post  Trial  Clemency  Report,  dated  14  April  1965,
indicates the applicant desired rehabilitation and wanted  to  complete  his
tour in the Air Force in an honorable manner.

General Court Martial Order Number 110, dated 30 September  1965,  indicates
so much of the sentence to confinement as was in excess  of  confinement  at
hard labor for 5 months and  28  days,  and  so  much  of  the  sentence  to
forfeitures as was in excess of forfeiture of all  pay  and  allowances  for
four months and four days, promulgated in General  Court-Martial  Order  No.
32,  dated  26 May  1965,  are  remitted.   Execution  of  the  bad  conduct
discharge was suspended until 30 March  1966,  at  which  time,  unless  the
suspension was sooner vacated, the unexecuted portion of the sentence  would
have been remitted without further action.

General Court-Martial Order Number 10, dated 19 April  1966,  indicates  the
charges were  dismissed  and  the  sentence  was  set  aside.   All  rights,
privileges, and property of which the accused had been  deprived  by  virtue
of the findings of guilty and the sentence so set aside was restored.

On 1 September 1967, the applicant was honorably discharged in the grade  of
airman first class under the provisions of AFM 39-10 -  Convenience  of  the
Government.  He served 3 years, 11 months, and 29 days of total active  duty
service and 2 months and 21 days of foreign and/or sea service.

_________________________________________________________________

AIR FORCE EVALUATION:

AFPC/DPF indicates a review of the applicant’s service record reflects  that
all charges associated with the  referenced  court-martial  were,  in  fact,
dismissed.  AFI 36-2608, Military Personnel  Records  System,  requires  all
court-martial orders be filed in the Unit Personnel Record Group as well  as
the Master Personnel Record Group, including  those  setting  aside  a  case
entirely.  Based  on  this  requirement  and  the  attached  input  from  HQ
AFPC/JA, they recommend denial of the applicant’s request.

The evaluation, with attachment from AFPC/JA, is at Exhibit C.

AFPC/JA’s  memorandum  dated  20  March   2006,   indicates   AFI   51-2101,
Administration of Military Justice, paragraph  10.1.9,  is  in  the  current
directive governing the distribution of general  and  special  court-martial
orders to Military Personnel Flights (MPFs) maintaining Field Record  Groups
(FRGp) and to the Air Force Personnel Center  (AFPC)  for  Master  Personnel
Record Groups (MPeRGp).  This regulation is, however, silent  on  the  issue
of whether transmitting these documents also requires  filing  them  in  the
FRGp or MPeRGp.  Instead, AFI 36-2608, Military  Personnel  Records  System,
discusses the requirements for filing court-martial orders  in  the  various
records groups.  AFI 36-2608, Table A2.1, Item 347 expressly mandates court-
martial orders “setting aside a case entirely” be placed in  both  the  FRGp
and MPeRGp.  This rule clearly differentiates between “court-martial  orders
containing  or  reflecting  approved  findings  of   guilt”--such   as   the
applicant’s--and cases involving a complete acquittal at a  trial.   As  the
latter does not fit within Item 347’s various categories--or any other  rule
within AFI 36-3208 for that matter--it  is  not  placed  in  either  of  the
record groups.

When the applicant separated from the Air Force upon completion of his  term
of service, his MPeRGp and other permanent personnel records  were  combined
at AFPC and then forwarded to the National Personnel Records Center  (NPRC).
 See AFI 36-3208, paragraph  2.12.2  and  Table  A2.1,  Item  347.   In  his
request, he  asked  if  the  numerous  court-martial  orders  and  appellate
decisions documenting the applicant’s case between May 1965 and  April  1967
be removed from these records now maintained at NPRC.  After  reviewing  the
applicable regulations, these  court-martial  records  must  remain  in  his
MPerRGp to provide a complete history of this case.

_________________________________________________________________

APPLICANT'S REVIEW OF AIR FORCE EVALUATION:

The applicant reviewed the evaluation and indicated when  the  court-martial
charge was dismissed - he was informed by his lawyer  and  the  staff  judge
that all records of his court-martial would be removed from his record.   He
never checked on removal of records before he was discharged and assumed  it
was done.  He recently found out about it when  he  purchased  new  firearms
for collection and hunting.  Approximately two weeks  after  purchasing  the
guns - the ATF informed him that a review of his military records reflect  a
felony conviction.  Although the charge was dismissed - it remained  in  his
record leaving him unable to own firearms.  All firearms in  his  possession
had to be turned in to a gun dealer until  this  matter  was  resolved.   He
further indicates that he has been hunting and collecting guns since he  was
16 years old and always held a valid gun permit.  This incident happened  41
years ago - he is now 61 years old, loves to  hunt  and  target  shoot  with
family and friends as he has done all of his adult life.

The applicant’s response, with attachments, 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.    Sufficient relevant evidence has been  presented  to  demonstrate  the
existence of an  error  or  injustice.   The  applicant  contends  that  all
charges pertaining to his 1965 court-martial  were  dismissed  on  19  April
1966 in accordance with  General  Court-Martial  Order  Number  10  and  all
records concerning the court-martial were to be removed.  In  this  respect,
we  note  the  applicant  was  convicted  by  a  general  court-martial  for
violating Article 123, UCMJ by falsely altering a check.  He  was  sentenced
to a reduction in grade to airman basic, confinement at hard labor  for  one
year, and a bad conduct discharge.  On 19 April 1966, General  Court-Martial
Order No. 10 was signed by HQ 12 AF/CC dismissing the  charges  and  setting
aside the adjudged sentence.  In view of the above finding, the Board is  of
the opinion that since  the  charges  brought  against  the  applicant  were
dismissed and the sentence was set aside, it would be an  injustice  to  the
applicant to continue to suffer the effects of  the  negative  documentation
in his records pertaining solely to this  issue.   Therefore,  we  recommend
the applicant’s 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  show  that  any  and  all  documents  and
references thereto pertaining to his misconduct under General  Court-Martial
Order Number 32, Article 123 Uniform Code of Military Justice, dated 26  May
1965, be declared void and removed from his records.

_________________________________________________________________












The following members of the Board considered AFBCMR Docket Number  BC-2006-
00337 in Executive Session on 23 May 2006, under the provisions of  AFI  36-
2603:

                 Ms. Cathlynn B. Sparks, Panel Chair
                 Mr. Jay H. Jordan , Member
                 Ms. Josephine L. Davis, Member

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

   Exhibit A.  DD Form 149, dated 30 January 2006, w/atchs.
   Exhibit B.  Applicant's Master Personnel Records.
   Exhibit C.  Letter, AFPC/DPF, dated 27 March 2006, w/atch.
   Exhibit D.  Letter, SAF/MRBR, dated 31 March 2006, w/atch.
   Exhibit E.  Letter, Applicant, dated 22 April 2006.




                       CATHLYNN B. SPARKS
                       Panel Chair



AFBCMR BC-2006-00337





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 XXXXXX, be corrected to show that any and all documents and
references thereto pertaining to his misconduct under General Court-Martial
Order Number 32, Article 123 Uniform Code of Military Justice, dated 26 May
1965, be and hereby are, declared void and removed from his records.





            JOE G. LINEBERGER
            Director
            Air Force Review Boards Agency