RECORD OF PROCEEDINGS

         AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS


IN THE MATTER OF:      DOCKET NUMBER:  BC-2006-02851
            INDEX CODE:  110.02
            COUNSEL:  NONE

            HEARING DESIRED:  NO


MANDATORY CASE COMPLETION DATE:  17 MAR 2008


_________________________________________________________________

APPLICANT REQUESTS THAT:

His  bad  conduct  discharge  be  upgraded   to   a   more   favorable
characterization of discharge.

_________________________________________________________________

APPLICANT CONTENDS THAT:

His punishment was too harsh for the crime committed.

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

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
15 July 1957, for a term of 4 years.  On 26  September  1961,  Special
Court-Martial charges were preferred against the applicant.  The basis
for the commander’s recommendation was for on or about 25  July  1961,
absent himself from his organization, and did remain so  absent  until
on or about 14 August 1961; On or about 3 June 1961, steal  one  Sanyo
radio, of some value of a value of less than $20.00; On  or  about  21
July 1961, steal an Admiral Transistor radio, of some value of a value
of less than $20.00; On 9 June 1961, steal one Emerson  fan,  of  some
value of a value of less  than  $20.00.   He  pleaded  guilty  of  all
specification and was found guilty.  He was sentenced to be discharged
with a bad conduct discharge, forfeiture of $50.00 per month for three
months and confined at hard labor for three months, and reduced to the
grade of airman basic.  The convening authority approved the  sentence
as adjudged on 26 September 1961.  He served 4 years, 2 months and  23
days on active duty.

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

_________________________________________________________________

AIR FORCE EVALUATION:

AFLOA/JAJM recommends denial.  JAJM states the applicant’s contentions
are  untimely,  without  merit,  and  constitute  neither  error   nor
injustice.  Under 10 USC 1552(f), which amended the basic  corrections
board legislation, the Board’s ability to correct records  related  to
courts-martial, is limited.  Specifically, section 15552(f)(1) permits
the correction of a record to reflect actions  taken  by  a  reviewing
authority under the UCMJ.  Additionally,  section  1552(f)(2)  permits
the 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 Board 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 sentences, of a BCD, forfeiture of $50 per  month  for
three months, confinement for three months, and reduction to the grade
of airman  basic,  was  well  within  the  legal  limits  and  was  an
appropriate punishment for the offenses committed.  While clemency may
be granted under 10 USC 1552(f)(2), it is not warranted in this  case.
His assertion that a BCD “for hocking a government table  fan  from  a
room was a little harsh” is disingenuous.   He  was  convicted  of  an
extended period of unauthorized absence and  theft  of  property  from
fellow airmen in addition to  theft  of  government  property,  and  a
previous conviction was considered in sentencing.  A BCD was a  proper
sentence and properly characterizes his service.

The JAJM evaluation is at Exhibit D.

_________________________________________________________________

APPLICANT'S REVIEW OF AIR FORCE EVALUATION:

A copy of the Air Force evaluation was forwarded to the applicant on 1
March 2007, for review and comment within 30 days.  As of  this  date,
this office has received no response.

A copy of the FBI Report was provided for review and  response  within
14 days and to date no response has been received.

_________________________________________________________________

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.   We  note  that  this  Board  is
without authority to reverse, set aside, or otherwise expunge a court-
martial conviction.  Rather,  in  accordance  with  Title  10,  United
States Code, Section 1552(f), actions by this  Board  are  limited  to
corrections to the record to reflect actions taken  by  the  reviewing
officials and action on the sentence  of  the  court-martial  for  the
purpose of clemency.  We also find no evidence  which  indicates  that
the applicant’s service characterization, which had its basis  in  his
conviction by special court-martial and was a part of the sentence  of
the military court, was improper or that it exceeded  the  limitations
set forth in the Uniform Code of Military  Justice  (UCMJ).   We  have
considered applicant's overall quality of service, the special  court-
martial  conviction  which  precipitated  the   discharge,   and   the
seriousness of the offenses to which convicted, e.g.,  absent  without
authority and stealing.  Based on the evidence of  record,  we  cannot
conclude that clemency is warranted.  In view of the above, we  cannot
recommend approval based on the current evidence of record.

_________________________________________________________________

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-
02851 in Executive Session on 30 April 2007, under the  provisions  of
AFI 36-2603:

                 Mr. Wayne R. Gracie, Panel Chair
                 Ms. Janet I. Hassan, Member
                 Ms. Mary C. Puckett, Member

The following documentary evidence was considered:

      Exhibit A. DD Form 149, dated 8 Sep 06, w/atch.
      Exhibit B. Applicant's Master Personnel Records.
      Exhibit C. FBI Response, dated 27 Mar 07.
      Exhibit D. Letter, AFLOA/JAJM, dated 23 Feb 07.
      Exhibit E. Letter, SAF/MRBR, dated 1 Mar 07.
      Exhibit F. Letter, AFBCMR, dated 29 Mar 07, w/atch.




      WAYNE R. GRACIE
      Panel Chair