RECORD OF PROCEEDINGS
             AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS

IN THE MATTER OF:      DOCKET NUMBER:  BC-2009-02537
            INDEX CODE:  105.01; 110.02
            COUNSEL:  NONE
            HEARING DESIRED:  NO

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APPLICANT REQUESTS THAT:

1.  His Court-Martial (CM) be expunged.

2.  His rank at time of the CM be restored and he be provided back pay.

3.  He be medically discharged.

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APPLICANT CONTENDS THAT:

He was hit in the head by  the  door  of  an  aircraft  during  one  of  his
assignments and a car fell on him during another of his tours.   Because  of
these incidents, he feels he should not have been discharged due  to  a  CM,
but medically discharged for a mental disability.

In support of the application, the applicant submits copies of his  DD  Form
214, Armed Forces of the United States Report of Transfer or Discharge,  his
Air Force Reserves Discharge Certificate, a personal statement and a  letter
from his primary care doctor.

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

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STATEMENT OF FACTS:

The applicant enlisted in the Regular Air Force on 4 Mar 55 for a period  of
four years.  He was progressively promoted to the  grade  of  Airman  Second
Class.

On 19 Jan 58, he communicated a threat to a non-commissioned  officer.   For
this offense, he received an Article 15 and was  reduced  to  the  grade  of
airman third class.

In a summary court-martial held on 22 Sep 58, the applicant pled  guilty  to
stealing approximately seventy gallons of government aviation gasoline.   He
was sentenced to confinement at hard labor for  one  month  and  ordered  to
forfeit $14.00 for one month.

The specific facts surrounding the applicant’s  involuntary  separation  are
not contained in the available records.  He was discharged  with  a  general
(under honorable conditions) discharge on 5  Nov  58,  after  serving  three
years, seven months, and seven days of active service.   He  was  discharged
in the grade of airman basic.

The remaining relevant facts pertaining to this application, extracted  from
the applicant’s military records, are contained in the letters  prepared  by
the appropriate office of the Air Force at Exhibits C and D.

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AIR FORCE EVALUATION:

AFLOA/JAJM  recommends  denial.   JAJM  states  the  Board   may   deny   an
application because it is untimely.  Over 50 years  have  passed  since  the
applicant’s trial and he has  provided  no  basis  to  excuse  his  untimely
application.

JAJM opines that the applicant  received  due  process  during  the  summary
court-martial proceedings.  His records indicate he consented  to  trial  by
summary court-martial and pled guilty to the charged offense.   He  has  not
provided any evidence, nor is there any evidence in  his  records,  that  he
lacked the mental capacity or responsibility at the time of his offenses  or
at the time of the  summary  court-martial  proceedings.   In  addition,  he
provides no basis  for  the  Board  to  substitute  its  judgment  for  that
rendered by the court and the convening authority  over  50 years  ago  when
the facts and circumstances were fresh.

His sentence was within the discretionary summary courts-martial limits  and
he was  properly  punished  for  his  criminal  conduct.   Clemency  is  not
warranted in this case as the applicant  has  not  identified  an  error  or
injustice related to his prosecution or sentence.

The complete JAJM evaluation is at Exhibit C.

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BCMR MEDICAL CONSULTANT’S EVALUATION

The BCMR Medical  Consultant  recommends  denial.   The  Medical  Consultant
notes no medical documentation exists that reflects the applicant’s  alleged
“mental  disability”  or  any  residual   traumatic   mental   or   physical
impairment.  In addition, the applicant has not provided  material  evidence
upon which consideration for a change in or a re-analysis of the  basis  for
his discharge may be made.   His  reduction  in  rank  was  carried  out  in
conjunction with his disciplinary actions and was within  the  authority  of
his commander to impose.  The Medical Consultant  finds  the  applicant  has
not met the burden of proof of  an  error  or  injustice  that  justifies  a
change in the record.

The complete BCMR Medical Consultant’s evaluation is at Exhibit D.

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APPLICANT'S REVIEW OF AIR FORCE AND BCMR MEDICAL CONSULTANT EVALUATIONS:

The applicant reiterates much of his earlier contentions.   He  also  states
he is mentally disabled, lives alone and does not want to live.

The applicant’s complete submission is at Exhibit F.

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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  office  of  primary
responsibility and the BCMR Medical Consultant and adopt their rationale  as
the basis for ourconclusion 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 basis to recommend granting the relief sought  in  this
application.

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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.

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The following members of the Board  considered  BC-2009-02537  in  Executive
Session on 20 Apr 10, under the provisions of AFI 36-2603:

      Panel Chair
      Member
      Member

The following documentary evidence was considered:

    Exhibit A.  DD Form 149, dated 8 Jul 09, w/atchs.
    Exhibit B.  Applicant's Master Personnel Records.
    Exhibit C.  Letter, AFLOA/JAJM, dated 28 Aug 10.
    Exhibit D.  Letter, BCMR Medical Consultant, dated 19 Oct 10.
    Exhibit E.  Letter, SAF/MRBR, dated 22 Oct 09.
    Exhibit F.  Letter, Applicant, dated 26 Oct 09.





                                   Panel Chair