RECORD OF PROCEEDINGS
             AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS

IN THE MATTER OF:                 DOCKET NUMBER:  BC-2006-02768
                                  INDEX CODE:  111.02
  XXXXXXXXXXXXXXXX                COUNSEL:  NONE

                                  HEARING DESIRED:  YES


MANDATORY CASE COMPLETION DATE:  17 May 2008


_________________________________________________________________

APPLICANT REQUESTS THAT:

His 1947 record of general court-martial conviction be set-aside so  he  can
apply for a gun permit.

_________________________________________________________________

APPLICANT CONTENDS THAT:

He was denied the right to own a firearm due  to  an  FBI  background  check
indicating his record of court-martial.  On  25  May  1995,  the  Air  Force
Board for Correction  of  Military  Records  (AFBCMR)  determined  that  the
circumstances of his undesirable discharge  constituted  an  injustice;  and
thereby, upgraded  his  characterization  of  discharge  to  honorable.   To
ensure his record is fully corrected, and to allow him to apply  for  a  gun
permit, he feels the record of court-martial should be set-aside.

In support of his request, the applicant submits  copies  of  his  discharge
documents and documentation from his previous AFBCMR case.

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

_________________________________________________________________

STATEMENT OF FACTS:

On 24 April 1946, the applicant enlisted in the Army Air Corps in the  grade
of private for a period of 18 months.  He was subsequently promoted  to  the
grade  of  private  first  class.   On  13 March  1947,  the  applicant  was
apprehended by military police in a movie theater for placing  his  hand  on
the thigh of a 10-year-old female child and holding her hand.  On  23  April
1947, he was arraigned for an alleged violation of the 96th Article of  War.
 The applicant pled not guilty; however, was found guilty as  charged.   His
punishment consisted of confinement at hard labor for one  year,  forfeiture
of all pay and allowances, and a dishonorable discharge.  The  sentence  was
approved as adjudged, but execution of the  discharge  was  suspended  until
the applicant’s release from confinement.

On  13  August  1947,  while  the  applicant  was  serving  confinement,   a
classification board determined he  should  be  restored  to  duty  for  the
purpose  of  reenlistment  in  the  Regular  Army  and  that  the   adjudged
confinement in excess of six months be remitted.  The  applicant  served  in
confinement from 23 April 1947 through 22 December 1947 for a total  of  240
days lost time.  The  applicant’s  DD  Form  214  shows  he  was  discharged
effective  22 December  1947,   issued   an   undesirable   discharge,   and
immediately reenlisted in the Regular Army in the grade  of  private  on  23
December 1947.  The  applicant  was  subsequently  transferred  to  the  Air
Force,  where  he  served  for  two  years  and  was  thereafter   honorably
discharged in the grade of private first class on  22  December  1949.   His
discharge document indicates he was credited with a total of three years  of
active duty service.

On 20 January 1955, the applicant enlisted in the Air Force  Reserve  as  an
airman first class for  a  period  of  five  years.   He  was  progressively
promoted to the grade  of  staff  sergeant.   On  19 January  1963,  he  was
honorably discharged and credited with a total of eight years,  six  months,
and nine days of satisfactory Federal service.

On 25 May 1995, the AFBCMR upgraded his 1947 discharge to honorable  service
as a matter of clemency.
_________________________________________________________________

AIR FORCE EVALUATION:

AFLOA/JAJM recommends the applicant’s request be denied.   JAJM  states  the
Board’s recommendation to upgrade the applicant’s  administrative  discharge
to honorable was made as  a  matter  of  clemency  based  upon  events  that
occurred subsequent to his conviction, including the recommendation  of  the
1947 classification board  and  subsequent  periods  of  honorable  military
service  and  civilian  life.    The   Board’s   action   focused   on   the
characterization of the applicant’s discharge, not the merits of his  court-
martial conviction.  The applicant does not provide  any  justification  for
reassessing the evidence that formed the basis of his conviction.  Nor  does
he provide any other factual or legal reason to overturn or  set  aside  his
court-martial conviction.  The applicant has failed to  identify  any  error
or injustice related to the court-martial proceedings or his conviction.

The AFLOA/JAJM evaluation is at Exhibit C.

_________________________________________________________________

APPLICANT'S REVIEW OF AIR FORCE EVALUATION:

He appreciates the  Board’s  1995  decision  to  upgrade  his  discharge  to
honorable.  During his service, he was entrusted with a weapon and  he  only
asks that he be given that privilege again now.   He  would  be  willing  to
testify before the Board in person in order to make his case.

A copy of the applicant’s rebuttal is at Exhibit D.

_________________________________________________________________

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 probable error or injustice warranting favorable  consideration
of the applicant’s request that his general court-martial conviction be  set
aside.  We note the Board’s earlier  decision  to  upgrade  the  applicant’s
discharge to honorable was based on clemency;  however,  the  applicant  has
provided no basis  in  this  appeal  for  setting  aside  his  court-martial
conviction other than his desire for a gun permit.  In  view  of  the  above
and in the absence of evidence showing an error or injustice in  the  court-
martial proceedings, we agree with the opinion  and  recommendation  of  the
Air Force office of primary responsibility.   Accordingly,  the  applicant’s
request to set aside his court-martial is not favorably considered.

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 issues 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 this application in  Executive
Session on 14 November 2006, under the provisions of AFI 36-2603:

                 Mr. Laurence M. Groner, Panel Chair
                 Ms. Mary C. Puckett, Member
                 Ms. Kathleen F. Graham, Member


The following documentary evidence for AFBCMR  Docket  Number  BC-2006-02768
was considered:

      Exhibit A.  DD Form 149, dated 11 Sep 06, w/atchs.
      Exhibit B.  Letter, AFLOA/JAJM, dated 24 Sep 06.
      Exhibit C.  Letter, SAF/MRBR, dated 29 Sep 06.
      Exhibit D.  Applicant’s Rebuttal, dated 17 Oct 06.




                                  LAURENCE M. GRONER
                                                   Panel Chair