RECORD OF PROCEEDINGS
             AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS

IN THE MATTER OF:      DOCKET NUMBER:  BC-2006-01943
            INDEX CODE:  110.02
      XXXXXXX    COUNSEL:  NONE

            HEARING DESIRED:  NO



MANDATORY COMPLETION DATE 27 OCT 2007
_________________________________________________________________

APPLICANT REQUESTS THAT:

The character of his discharge (Dishonorable) be changed and his  pay  grade
be restored to enable him to retire.

_________________________________________________________________

APPLICANT CONTENDS THAT:

He is now 71 years old and had open heart surgery in 1995.  He  states  that
he committed the act for which he  was  convicted  in  self-defense  and  in
defense of another person.

In support of his application, he submits a several copies of his  DD  Form
214s, Certificate of Release  or  Discharge  from  Active  Duty  and  other
documents.


His complete submission, with attachments, is at Exhibit A.

_________________________________________________________________

STATEMENT OF FACTS:

The applicant enlisted in the regular Air Force on  26  June  1956  and  was
progressively promoted to the rank of staff sergeant with a date of rank  of
1 June 1966. The applicant was tried by  General  Court  Martial  (GCM)  and
found guilty on  7  September  1973  of  unpremeditated  murder  of  another
military member by means of stabbing with a knife. He  was  sentenced  to  a
dishonorable discharge, forfeiture of all pay and allowances,  reduction  in
grade to E-1, and confinement at hard labor  for  15  years.  The  convening
authority approved so much of the  sentence  as  provided  for  dishonorable
discharge, forfeiture of all pay  and  allowances,  reduction  to  E-1,  and
confinement at hard labor for 10 years.

He was discharged on 7 January 1976 with a dishonorable discharged.  He  was
credited with 19 years, 7 months and 17 days of active duty service.

Pursuant to the  Board's  request,  the  Federal  Bureau  of  Investigation,
Clarksburg, WV, provided a copy of an  Investigation  Report  pertaining  to
the applicant, which is at Exhibit C.

_________________________________________________________________

AIR FORCE EVALUATION:

AFLOA/JAJM recommends  denial.  The  AFBCMR’s  ability  to  correct  records
related to  courts-martial  is  limited.  Specifically,  section  1552(f)(1)
permits correction of  a  record  to  reflect  actions  taken  by  reviewing
authorities  under  the  UCMJ.  Additionally,  section  1552(f)(2)   permits
correction of records related to action on the sentence of  a  court-martial
for the purpose of clemency. Apart from these two  limited  exceptions,  the
effect of section 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).

The applicant’s discharge accurately reflects the character of his  service.
The sentence was well  within  legal  limits  and  the  convening  authority
determines it to be a fitting punishment  for  the  offense  committed.  The
sentence was found appropriate for the offenses and the requested relief,  a
restoration of the applicant’s previous pay grade,  is  inappropriate  given
the seriousness of the applicant’s crime and discharge.

JAJM states the applicant has failed to identify the existence of any  error
or injustice related  to  his  court-martial  and  resulting  sentence.   He
provides no evidence to warrant upgrading his  discharge.   Therefore,  JAJM
recommends the Board deny relief because the applicant does not  demonstrate
an equitable basis for relief.

AFLOA/JAJM’s complete evaluation is at Exhibit E.

AFPC/DPPRRP recommends denial. DPPRRP states the applicant had  an  approved
retirement date of 1 December 1973 at which time he would have had 20  years
and 28 days of active service for  retirement.  Retirement  orders  (SO  AC-
4652) were issued on 16 February 1973 but were rescinded on  20  April  1973
by (SO AC-12521). Both orders were rescinded  by  SO  AC-34085  due  to  the
member being placed on administrative hold.

The AF Form 1226, Record of Court-Martial Convictions and Time  Lost,  shows
the applicant was in confinement from 4 July 1973  to  17  January  1974  at
Ramstein, transferred to  Fort  Leavenworth  confinement  facility  from  18
January 1974 to 6  January  1976,  and  was  dishonorably  discharged  on  7
January 1976.

The law that governs retirement of an enlisted member,  in  1973,  1976  and
today is 10 USC, section 8914 which requires an enlisted member of  the  Air
Force to have at least  20  years  Total  Active  Federal  Military  Service
(TAFMS) in order to qualify for retirement. The applicant  did  not  fulfill
the required 20 years TAFMS because all time from 4 July 1973 to  7  January
1976 was lost time.  Under  10  USC,  section  8925(b),  lost  time  is  not
computed for the voluntary retirement of an enlisted member.

AFPC/DPPRRP’s complete evaluation, with attachments, is at Exhibit E.

_________________________________________________________________

APPLICANT'S REVIEW OF AIR FORCE EVALUATION:

Copies of the Air Force evaluations were forwarded to the  applicant  on  28
July 2006 for review and comment within  30  days.   As  of  this  date,  no
response has been received by this office.

On 22 August 2004 a copy of the Federal Bureau of Investigation  report  was
forwarded to the applicant.  As of this date, this office  has  received  no
response.

_________________________________________________________________

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.  After thoroughly  reviewing  the  evidence
of record and  noting  the  applicant’s  complete  submission,  we  find  no
evidence of  error  or  injustice.   In  this  respect,  we  note  that  the
applicant’s discharge appears to be in compliance  with  the  governing  Air
Force Instruction in effect at the time of his  separation.   The  applicant
was afforded all the rights to which entitled and the general  court-martial
findings were affirmed by the United States  Air  Force  Court  of  Criminal
Appeals.  The applicant's contentions are duly noted;  however,  we  do  not
find these assertions, in and  by  themselves,  sufficiently  persuasive  to
override the rationale provided by the Air Force Military Justice  Division.
 The Military Justice Division has adequately addressed the issues  of  this
case and we agree with their opinions and adopt the rationale  expressed  as
the basis for our decision that the applicant  has  failed  to  sustain  his
burden that his separation  was  inappropriate.   There  being  insufficient
evidence to the



contrary, we find no compelling  basis  to  recommend  granting  the  relief
sought.

_________________________________________________________________

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-2006-01943
Executive Session on 26 September 2006 under the provisions of AFI 36-2603:


                       Mr. James W. Russell III, Panel Chair
                       Mr. Patrick C. Daugherty, Member
                       Ms. Janet I. Hassan, Member

The following documentary evidence  pertaining  to  Docket  Number  BC-2006-
01943 was considered:

    Exhibit A.  DD Form 149, dated 20 Jun 06, w/atchs.
    Exhibit B.  Applicant's Master Personnel Records.
    Exhibit C.  FBI Investigation Report.
    Exhibit D.  Letter, AFLOA/JAJM, dated 11 July 06.
    Exhibit E.  Letter, AFPC/DPPRRP, dated 18 Jul 06.
      Exhibit F.  Letter, SAF/MRBR, dated 28 Jul 06.
      Exhibit G.  Letter, AFBCMR, dated 22 Aug 06




                                   JAMES W. RUSSELL III
                                   Panel Chair