RECORD OF PROCEEDINGS
AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS
IN THE MATTER OF: DOCKET NUMBER: BC-2008-00253
INDEX CODE: 110.00
COUNSEL: NONE
HEARING DESIRED: NO
________________________________________________________________
APPLICANT REQUESTS THAT:
His Bad Conduct Discharge (BCD) be upgraded.
________________________________________________________________
APPLICANT CONTENDS THAT:
He has not been in trouble since his discharge (clemency).
In support of his application, he submits a Request Pertaining to Military
Records form.
His complete submission, with attachments, is at Exhibit A.
________________________________________________________________
STATEMENT OF FACTS:
In a general court-martial held on 4 Nov 52, the applicant was arraigned
and tried for the charge of committing assault upon an individual by
cutting him on the arm, back and abdomen with a knife, and intentionally
inflicting grievous bodily harm. He was found guilty and sentenced to a
bad conduct discharge, forfeiture of all pay and allowances, and
confinement at hard labor for one year.
He was dishonorably discharged and released from military service on 10 May
53. He had served 5 months and 18 days on active duty with 210 days of
lost time due to confinement.
The Federal Bureau of Investigation (FBI) provided a copy of an
Investigative Report; however, there was no new activity listed since the
applicant’s prior discharge from service.
The remaining relevant facts pertaining to this application, extracted from
the applicant’s military records, are contained in the letter prepared by
the appropriate office of the Air Force at Exhibit C.
________________________________________________________________
AIR FORCE EVALUATION:
AFLOA/JAJM recommends denial. JAJM states the applicant submitted a
request for clemency to the convening authority. He requested a six-month
reduced sentence and return to active duty; however, the convening
authority approved the findings and sentence as adjudged. The Air Force
Board of Review found the findings and sentencing to be correct in law and
fact.
JAJM notes the applicant has not submitted any post-service documentation
pertaining to his behavior over the past 50 years. JAJM states at trial,
the jury weighed all the information presented in findings and sentencing
to craft a punishment uniquely suited to address his criminal conduct.
JAJM opines to overturn this punishment now would require the Board to
substitute its judgment for that rendered by the court and the convening
authority when the facts and circumstances were fresh.
Although the applicant asserted self-defense, this was rejected by the jury
because there was no indication that the force used by the victim was of
such a degree that the applicant was justified in using a dangerous weapon.
JAJM notes the adjudged sentence is within the legal limits and well below
the maximum permissible punishment of a dishonorable discharge, total
forfeiture of all pay and allowances, and three years confinement to hard
labor. A bad conduct discharge is more than a service characterization,
but as defined under the Rules it is a punishment for the crime committed
while a member of the armed forces.
The complete JAJM evaluation is at Exhibit C.
________________________________________________________________
APPLICANT'S REVIEW OF AIR FORCE EVALUATION:
A copy of the Air Force evaluation was forwarded to the applicant on 14 Mar
08 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. 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 took notice of the applicant's
complete submission in judging the merits of the case; however, we agree
with the opinion and recommendation of the Air Force offices of primary
responsibility and adopt its rationale as the basis for the conclusion that
the applicant has not been the victim of an error or injustice. Therefore,
in the absence of evidence to the contrary, we find no compelling basis to
recommend granting the relief sought in this application.
________________________________________________________________
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 7 August 2008, under the provisions of AFI 36-2603:
Mr. Michael J. Novel, Panel Chair
Ms. Judith B. Olvia, Member
Mr. John E. Petitt, Member
The following documentary evidence was considered for AFBCMR Docket Number
BC-2008-00253:
Exhibit A. DD Form 149, dated 18 Jan 08, w/atch.
Exhibit B. Applicant's Master Personnel Records.
Exhibit C. Letter, AFLOA/JAJM, dated 5 Mar 08.
Exhibit D. Letter, SAF/MRBR, dated 14 Mar 08
MICHAEL J. NOVEL
Panel Chair
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