RECORD OF PROCEEDINGS
             AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS


IN THE MATTER OF:      DOCKET NUMBER:  BC-1987-03586
            INDEX CODE:  110.00 & 126.00

            COUNSEL:  NONE

            HEARING DESIRED:  NO

MANDATORY CASE COMPLETION DATE:  18 JUL 08

_________________________________________________________________

APPLICANT REQUESTS THAT:

1.    His bad conduct discharge be set aside.

2.    The punishment imposed upon him under  Article  15,  Uniform  Code  of
Military Justice (UCMJ), dated October 1982 be set aside.

_________________________________________________________________

APPLICANT CONTENDS THAT:

The UCMJ punishment administered against  him  was  racially  motivated  and
based on perjured testimony.

In support of his request, the applicant provided a  copy  of  his  DD  Form
214, Certificate or Release or Discharge from Active Duty.

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

_________________________________________________________________

STATEMENT OF FACTS:

Applicant enlisted in the Regular Air Force on 9 November 1972 in the  grade
of airman basic.  He was  progressively  promoted  to  the  grade  of  staff
sergeant having assumed that grade effective and with a date of  rank  of  1
February 1981.

On 16 March 1983, applicant was notified by his commander of his  intent  to
recommend that he be discharged from the Air Force under the  provisions  of
AFR 39-10, paragraph 5-26.  The specific reason  for  this  action  were  as
follows:

On 23 March 1981, he received a record of counseling (ROC) for speeding.
On 24 March 1981, he caused damage to a government  vehicle  and  failed  to
report it until questioned about.  He walked on the top of the cab.

On 11 June 1981, he received an ROC for reporting 50 minutes late for duty.

On 18 September 1981, he received an ROC for reporting to duty unshaven.

On 2 November 1981, he  received  an  ROC  for  being  away  from  his  duty
location on 3 October 1981 and for coming in 30 minutes late to  duty  on  5
October 1981.

On 12 November 1981, he received a Letter of Reprimand (LOR) for failing  to
go to his place of duty after being notified  of  a  recall.   He  was  also
counseled on this matter.  This information was  placed  in  an  unfavorable
information file (UIF).

On 18 December 1981, he was counseled by his commander  on  his  duties  and
responsibilities as a non-commissioned  officer  (NCO)  and  desk  clerk  at
billeting.

On 11 February 1982, he was placed on the control roster  for  a  period  of
120 days due to a referral airman performance report (APR).  He received  an
overall six on his APR.  The rater’s comments indicate he  rebelled  against
authority and set a poor example for others.

On 19 February 1982, he received an ROC for  not  completing  paperwork  and
forms correctly.

On 14 May 1982, he received an ROC for missing a dental appointment.

He received an overall six on  his  APR  for  the  period  17  October  1981
through 14 June 1982.  The first indorser indicated he  had  been  counseled
on  many  errors,  reporting  late  for  duty,  and  being  discourteous  to
customers.

On 15 August 1982, a request was made to have an air conditioner fixed.   He
did not take any action to honor the request.

On 21 August 1982, a billeting questionnaire indicated  he  was  rude  to  a
guest.

On 23 August 1982, he received  an  LOR  for  being  rude  and  discourteous
toward a superior commissioned officer on 24 July 1982.  The  reprimand  was
placed in his UIF.  He was counseled on this matter on 13 August 1982.




On 23 August 1982, a billeting questionnaire indicated  he  was  rude  to  a
guest.

On 31 August 1982, he received an LOR for reporting to duty late on  19  and
20 August 1982.  This reprimand was placed in his UIF.

On 6 September 1982, a billeting questionnaire indicated  he  performed  his
duties poorly.

On 9 September 1982, he was counseled for performing his duties poorly.   He
failed to place a guest in officers’ quarters.

On 12 October 1982, he  received  an  ROC  for  neglecting  his  duties  and
responsibilities as a billeting desk clerk on 7 October 1982.

A statement by an airman indicating the problems she had  working  with  the
applicant.

On 13 October 1982, he received an ROC for reporting late for duty.

On 26 October 1982, he was counseled by his commander  concerning  his  duty
section having difficulty in contacting him during non duty hours.

On 29 October 1982, he received an Article 15 for reporting late to duty  on
7 and  14  September  1982  and  for  disobeying  an  order  of  a  superior
noncommissioned officer.  He received a suspended reduction to the grade  of
sergeant and was ordered to forfeit $200.00.

He received an overall six on his APR for the period 15 June 1982 through  1
November 1982, which was a referral report.  The ratee’s comments  indicated
the applicant had a poor attitude,  undependable,  neglected  responsibility
and noted unacceptable duty  performance.   The  first  indorser’s  comments
indicated he was irresponsible and inattentive.

On 2 November 1982, he received an LOR for reporting  late  to  duty  on  10
October 1982.

On 7 February 1983,  he  had  a  suspended  nonjudicial  punishment  vacated
because he willfully disobeyed his commander when he asked him to  trim  his
mustache.   His  punishment  consisted  of  a  reduction  to  the  grade  of
sergeant.

He was advised of his rights in this matter and acknowledged receipt of  the
notification on that same date.  After consulting  with  counsel,  applicant
elected an administrative discharge board hearing and indicated  he  desired
to submit statements on his own behalf.  In  a  legal  review  of  the  case
file, the chief administrative law found the  case  legally  sufficient  and
recommended he be discharged.


On 29 June 1983, applicant was tried by a  Special  Court-Martial.   He  was
charged with being absent without leave (AWOL) from 9 June through  19  June
1983, in violation of Article 86, UCMJ; with two specifications  of  failure
to obey a lawful order on 23 June 1983, in violation of  Article  91,  UCMJ;
and with an additional charge with two specifications of failure  to  go  to
his appointed place of duty on 23 June 1983  and  again  27  June  1983,  in
violation of Article 86, UCMJ.  He was found guilty of the  absence  without
leave; not guilty of violating Article 91,  but  guilty  by  exceptions  and
substitutions of the lesser included offenses in violation  of  Article  92;
and guilty of the additional charge alleging a violation of Article 86.   He
was sentenced to a bad conduct discharge,  confinement  at  hard  labor  for
three months, forfeitures of $382.00 pay per month for three months,  and  a
reduction in  grade  from  sergeant  to  airman  basic.   The  sentence  was
adjudged on 3 August 1983.  On 24 August  1984,  applicant  was  discharged.
He served 11 years, 8 months, and 22 days on active duty.

In June 1987, the Air Force Discharge Review Board  (AFDRB)  considered  and
denied  the  applicant’s  request  to  upgrade  his  bad  conduct  discharge
(Exhibit B).

_________________________________________________________________

AIR FORCE EVALUATION:

AFLOA/JAJM recommends denial.  JAJM states the applicant  does  not  contend
that a specific error occurred which requires the correction of  his  court-
martial record.  Thus, any  decision  regarding  the  applicant’s  discharge
status would be done as a matter of clemency.  The applicant  has  stated  a
generalized  complaint  that  his  court-martial  was  unjust  as   racially
motivated, but he provides no  supporting  documentation  to  justify  those
conclusory statements.  However, in response to  the  allegations,  we  note
applicant’s records include the record of his AFR 39-10 Discharge Board  for
unsatisfactory performance, which took place on 18-19  May  1983,  prior  to
his  court-martial.   According  to  the  record,  the   discharge   board’s
recommendation for discharge was made following a  proceeding  during  which
applicant was represented by counsel  and  his  substantive  and  procedural
rights were satisfied.  Testimony in the  record  indicates  that  applicant
had previously made an Inspector General complaint which was  determined  to
be unsubstantiated, and that he had filed no  discrimination  complaints  at
the equal opportunity office.  In other words, the  discharge  board  record
makes it clear that applicant’s racial discrimination  allegations  relating
to his unsatisfactory performance were  aired  in  this  hearing,  and  were
found to be unjustified.




Applicant  has  provided  no  evidence  upon  which  to   substantiate   his
allegation of  racial  inequities  during  his  court-martial.   Applicant’s
court-martial record was reviewed by two appellate courts,  and  both  times
the proceedings were affirmed as being legally sufficient and free of  error
prejudicial to the substantial  rights  of  the  accused.   Ultimately,  the
court-martial appears to be the conclusion of applicant’s  general  downward
spiral of unsatisfactory performance, culminated  by  his  misconduct  after
the discharge board while he was pending administrative discharge.

The applicant should not prevail  here  absent  clear  error  or  injustice.
Commanders considering nonjudicial punishment are to consider the nature  of
the offense, the record of the service member, the needs for good order  and
discipline, and the effect of good  order  and  discipline  on  the  service
member and the service member’s record.  MCM, part V, paragraph 1d(1).   The
applicant’s commander,  having  applied  that  standard  to  the  individual
circumstances of the applicant’s case, determined  that  Article  15  action
was warranted in response to applicant’s  offenses.   The  applicant  waived
his right to be tried by court-martial  and  chose  instead  to  accept  NJP
proceedings, placing the determination of guilt or  innocence,  as  well  as
punishment in his commander’s hands.  The commander had  to  weigh  all  the
evidence before  him  to  make  that  decision.   The  commander  ultimately
resolved  the  issue  of  the  alleged  misconduct  against  the  applicant.
Applicant provides no evidence of legal or procedural error, and the  record
indicates the commander’s actions were well within his discretion and to  an
abuse of his authority.

Procedural and substantive requirements having been  met  in  both  actions,
the application is  untimely  and  the  applicant’s  request  for  equitable
relief is without legal or factual justification.

The AFLOA/JAJM complete evaluation is at Exhibit C.

_________________________________________________________________

APPLICANT'S REVIEW OF AIR FORCE EVALUATION:

On 30 March 2007, the evaluation was forwarded to the applicant  for  review
and comment within 30 days.  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.    Insufficient relevant evidence has been presented to  demonstrate  the
existence of an error or injustice.  The applicant’s  contentions  are  duly
noted; however, after thoroughly reviewing the evidence of record,  we  find
no evidence to show the applicant’s discharge as a result of his  conviction
by court-martial or the Article 15 action taken against  the  applicant  was
erroneous  or  unjust.   Considering  the  multiplicity  of   the   offenses
committed,  we  are  not  persuaded  that  a  punitive  discharge   was   an
inappropriate punishment.  In regard to the Article 15,  the  applicant  was
offered and accepted nonjudicial punishment for disobeying  an  order  of  a
superior noncommissioned officer.  We believe his commander was in the  best
position to weigh the evidence of the case and to render a decision.   There
is no indication the  commander  abused  his  discretionary  authority  when
assessing the merits of the case.  Therefore, in the absence of evidence  to
the contrary, we find no compelling basis to recommend granting  the  relief
sought.

_________________________________________________________________

THE BOARD DETERMINES THAT:

The applicant be notified the evidence presented  did  not  demonstrate  the
existence of an error or an injustice; the application was denied without  a
personal appearance; and 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 AFBCMR Docket Number  BC-1987-
03586 in Executive Session on 22 May 2007, under the provisions of  AFI  36-
2603:

                 Mr. Laurence M. Groner, Panel Chair
                 Mr. James A. Wolffe, Member
                 Ms. Teri G. Spoutz, Member

The following documentary evidence was considered:

   Exhibit A.  DD Form 149, dated 15 Jan 07, w/atch.
   Exhibit B.  Applicant's Master Personnel Records.
   Exhibit C.  Letter, AFLOA/JAJM, dated 10 Mar 07.
   Exhibit D.  Letter, SAF/MRBR, dated 30 Mar 07.





                 LAURENCE M. GRONER
                 Panel Chair