RECORD OF PROCEEDINGS
AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS
IN THE MATTER OF: DOCKET NUMBER: BC-2010-01039
COUNSEL: NONE
HEARING DESIRED: NO
_________________________________________________________________
APPLICANT REQUESTS THAT:
His court-martial conviction be expunged from his records.
_________________________________________________________________
APPLICANT CONTENDS THAT:
After the Air Force Discharge Review Board (AFDRB) upgraded his
discharge in 1969, all records pertaining to his court-martial
should have been expunged. The records should be expunged in
accordance with the AFDRB directive.
In support of his request, the applicant provides copies of his
DD Form 214, Certificate of Release or Discharge from Active
Duty, SF 180, Request Pertaining to Military Records, AF Form
1226, Record of Previous Convictions and Time Lost, and DD Form
553, Absentee wanted by the Armed Forces; letters from a lawyer,
the National Personnel Records Center and the Board of Review
Decision.
The applicants complete submission, with attachments, is at
Exhibit A.
_________________________________________________________________
STATEMENT OF FACTS:
The applicant entered the Air Force on 30 November 1960 and was
promoted to the grade of airman second class.
Beginning in August 1962, the applicant was absent without leave
(AWOL) on four separate occasions for a total of 27 days. On
20 November 1962, the applicant was tried by Special Court-
Martial and charged with three specifications of AWOL in
violation of Article 86, Uniform Code of Military Justice (UCMJ).
The applicant pled guilty to the offenses. The court sentenced
the applicant to a bad conduct discharge. On 9 January 1963, the
convening authority approved the findings and sentence as
adjudged. A judge advocate reviewed the applicants conviction
and found no legal or factual errors. On 26 December 1962, the
Air Force Board of Review affirmed the conviction and sentence.
On 12 May 1969, the applicant applied for an upgrade of his
discharge through the AFDRB. On 11 August 1969, the applicant
appeared before the AFDRB and explained under oath that he had
purposely gone AWOL to force the Air Force to separate him. He
informed the AFDRB that he was 18 years old during the time of
the misconduct, experienced marriage and financial problems and
no longer wanted to remain in service. He remarried in 1967 and
had a successful post-conviction work history as a private pilot.
On 15 August 1969, the AFDBR recommended the applicants
discharge be upgraded to an honorable. On 28 August 1969, the
Secretary of the Air Force directed the applicants discharge be
upgraded to honorable.
_________________________________________________________________
AIR FORCE EVALUATION:
AFLOA/JAJM recommends denial. JAJM states the applicant has not
provided any evidence the AFDRB ordered his records to be
expunge. He also does not deny having been AWOL in the fall of
1962 or claim any error related to the conviction itself.
Under 10 U.S.C, section 1552(f), which amended the basic
corrections board legislation, the Boards ability to correct
records related to court-martial, is limited. Specifically,
section 1552(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 courts-martial for
the purpose of clemency. Apart from these two limited exceptions,
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 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 28 May 2010, for review and comment within 30 days. As of
this date, this office has received no response (Exhibit D).
_________________________________________________________________
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 that would
warrant favorable consideration of the applicant's stated
request. As noted by AFLOA/JAJM, the Board is without authority
to reverse, set aside, or otherwise expunge a court-martial
conviction that occurred on or after 5 May 1950. Therefore, we
agree with AFLOA/JAJM and adopt its rationale as the basis for
our conclusion that the applicant has not been the victim of an
error or injustice regarding his court-martial. Based on the
above, we find no evidence of error or injustice; therefore, the
applicants 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 Docket Number BC-
2010-01039 in Executive Session on 15 July 2010, under the
provisions of AFI 36-2603:
The following documentary evidence was considered:
Exhibit A. DD Form 149, dated 7 Mar 10, w/atchs.
Exhibit B. Applicant's Master Personnel Records.
Exhibit C. Letter, AFLOA/JAJM, dated 28 Apr 10.
Exhibit D. Letter, SAF/MRBR, dated 28 May 10.
Panel Chair
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