RECORD OF PROCEEDINGS 

AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS 

 

IN THE MATTER OF: DOCKET NUMBER: BC-2009-00996 

 COUNSEL: NONE 

 HEARING DESIRED: NO 

 

_________________________________________________________________ 

 

APPLICANT REQUESTS THAT: 

 

His bad conduct discharge (BCD) be upgraded. 

 

_________________________________________________________________ 

 

APPLICANT CONTENDS THAT: 

 

He believes the charges that led to his discharge were a 
“miscarriage of justice.” He had no knowledge of the charge of 
misappropriating government property. The British law 
enforcement set him up by planting a stolen weapon at his 
residence as payback for the fact he had assaulted one of their 
officers. 

 

In support of his appeal, the applicant provides a package 
prepared by the National Association for Black Veterans, Inc., to 
include an Appointment of Veterans Service Organization as 
Claimant’s Representative; a DD Form 293, Application for the 
Review of Discharge from the Armed Forces of the United States; a Request Pertaining to Military Records; four character 
references; course completion certificates; publication articles; 
a personal statement; and a Personal Qualification Statement. 

 

A copy of the applicant’s complete submission, with attachments, 
is at Exhibit A. 

 

_________________________________________________________________ 

 

STATEMENT OF FACTS: 

 

On 15 May 1952, the applicant enlisted in the Regular Air Force 
at the age of 17 in the grade of airman basic (E-1). He was 
promoted to the grade of airman third class (E-2) with a date of 
rank of 20 August 1952. 

 

On 1 December 1955, the applicant was tried by a special court-
martial for one specification of larceny of three .45 caliber 
semi-automatic pistols and one .45 caliber sub-machinegun, in 
violation of Article 121, Uniform Code of Military Justice 
(UCMJ). The applicant pled not guilty to the charge and 
specification, but was found guilty of larceny of one .45 caliber 


semi automatic pistol. He was sentenced to a bad conduct 
discharge, confinement for one year, and forfeiture of $75 pay 
per month for one year. On 6 January 1956, the convening 
authority approved the findings and sentence as adjudged. The 
final action, executing the BCD, was taken on 4 June 1956. The 
Court-Martial Order also indicates that one previous summary 
court-martial conviction, for treating a senior noncommissioned 
officer with disrespect and contempt that resulted in confinement 
at hard labor for 30 days and forfeiture of $55 pay, was 
considered in coming to the appropriate sentence for the 
applicant’s offense. A DD Form 464, Admission Classification 
Summary, dated 25 May 1956, indicates the officials who filled 
out the form included a paragraph titled “Prisoner’s Version,” 
which states “The prisoner admitted taking the pistol. He states 
that he had originally sold it to a person whom he believes is 
the “informer” mentioned in his court-martial. He stated that 
the whole case was apparently fixed. He claims the pistol 
reportedly found under his pillow was planted there by the 
police.” 

 

The applicant was discharged effective 18 June 1956, with 
3 years, 5 months, and 21 days on active duty; and, 191 days of 
lost time due to confinement. 

 

_________________________________________________________________ 

 

AIR FORCE EVALUATION: 

 

AFLOA/JAJM recommends denying the applicant’s request. JAJM 
states that upgrading his BCD is not appropriate. JAJM indicates 
that under Title 10, United States Code (USC), Section 1552(f), 
which amended the basic corrections board legislation, the Air 
Force Board for Correction of Military Record’s (AFBCMR) ability 
to correct records related to courts-martial, is limited. 
Specifically, Section 1552(f)(1) permits the correction of a 
record to reflect actions taken by reviewing authorities under 
the UCMJ. Additionally, Section 1552(f)(2) permits the 
correction of records related to action on the sentence of 
courts-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). 

 

JAJM states they do not have access to the record of trial to 
examine the “script of the trial” as the applicant has requested; 
however, information about the trial is available in his military 
personnel records and does not support his request for action by 
the Board. 

 

It is JAJM’s opinion that while clemency may be granted under 
Title 10, USC, Section 1552 (f)(2), the facts taken together 


weigh against action by the Board on the applicant’s request. 
Furthermore, the character letters and the applicant’s personal 
memorandum do not outweigh the seriousness of the offense of 
which he was convicted. Under the Rules for Courts-Martial, a 
BCD is intended to be more than merely a service 
characterization, but is a punishment for the crimes the 
applicant committed while a member of the Armed Forces. His 
sentence to a BCD, confinement for one year, and forfeiture of 
$75 pay per month for one year was within the legal limits and 
was an appropriate punishment for the offense committed. 
Additionally, clemency in this case would be unfair to those 
individuals who honorably served their country while in uniform. 
Congress’ intent in setting up the Veterans’ Benefits Program was 
to express thanks for veterans’ personal sacrifices, separations 
from family, facing hostile enemy action, and suffering financial 
hardships. All rights of a veteran under the laws administered 
by the Secretary of Veterans Affairs are barred where the veteran 
was discharged or dismissed by reason of the sentence of a 
general court-martial. It would be offensive to all those who 
served honorably to extend the same benefits to someone who 
committed crimes such as the applicant’s while on active duty. 

 

The complete JAJM evaluation is at Exhibit C. 

 

_________________________________________________________________ 

 

APPLICANT'S REVIEW OF AIR FORCE EVALUATION: 

 

He never admitted to taking the pistol and selling it to another 
person as indicated in his records. He asserts the same 
contentions, in more detail, as was indicated in his initial 
appeal. 

 

Pursuant to the Board’s request, the Federal Bureau of 
Investigation (FBI), Clarksburg, WV, provided a copy of an 
Investigation Report pertaining to the applicant. On 6 October 
2009, a copy of the FBI report was forwarded to the applicant for 
review and comment within 30 days (Exhibit F). The applicant 
responded that he was used as a scapegoat for the crime that he 
was found guilty of. He is an honorable person and served 
honorably until he was framed. 

 

_________________________________________________________________ 

 

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. We 
note 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 1552F, our 
actions 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 
find no evidence which indicates the applicant’s service 
characterization, which had its basis in his court-martial 
conviction and was a part of the sentence of the military court, 
was improper or that it exceeded the limitations set forth in the 
UCMJ. We have considered the applicant’s overall quality of 
service, the court-martial conviction which precipitated the 
discharge, the seriousness of the offenses of which convicted, 
and the absence of any other documentation pertaining to post-
service activities. Furthermore, we do not find clemency is 
appropriate in this case since the applicant has not provided any 
evidence of a successful post-service adjustment and in view of 
the information contained in the FBI investigative report. 
Therefore, the applicant’s request 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 12 January 2010, under the provisions of AFI 
36-2603: 

 

 , Panel Chair 

 , Member 

 , Member 

 


The following documentary evidence was considered in connection 
with AFBCMR Docket Number BC-2009-00996: 

 

 Exhibit A. DD Form 149, dated 8 May 2008, w/atchs. 

 Exhibit B. Applicant's Master Personnel Records. 

 Exhibit C. Letter, AFLOA/JAJM, dated 20 Aug 09. 

 Exhibit D. Letter, SAF/MRBR, dated 11 Sep 09. 

 Exhibit E. Applicant’s Rebuttal, not dated. 

 Exhibit F. Letter, AFBCMR, dated 6 Oct 09, w/FBI Report. 

 Exhibit G. Applicant’s Rebuttal to FBI Report, not dated. 

 

 

 

 

 

 Panel Chair