RECORD OF PROCEEDINGS 

AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS 

 

IN THE MATTER OF: DOCKET NUMBER: BC-2011-00145 

 

 COUNSEL: NONE 

 

 HEARING DESIRED: NO 

 

_________________________________________________________________ 

 

APPLICANT REQUESTS THAT: 

 

His bad conduct discharge (BCD) be upgraded. 

 

_________________________________________________________________ 

 

APPLICANT CONTENDS THAT: 

 

His court-martial was conducted without an Article 32 hearing as 
required by the Uniform Code of Military Justice (UCMJ). His 
rights were further denied because his court martial board was 
made up of only officers when he had the right to have enlisted 
men or women on the board. He only pled guilty to the charges on 
the advice of his lawyer. He was told that if he got a “bad 
discharge,” it would be taken care of and he would probably be 
out of confinement very quickly. If the Article 32 had been part 
of his court-martial, the case would have been thrown out due to 
lack of evidence. The Article 32 hearing suddenly surfaced at 
the retrial; however, the evidence favored him. The two major 
“victims” for the prosecution could not be found. He is an 
elderly sick veteran, who is seeking an upgrade in order to 
receive veterans benefits. 

 

In support of his appeal, the applicant provides a statement from 
a Veteran’s counselor, a copy of his DD Form 293, Application for 
the Review of Discharge from the Armed Forces of the United 
States, five character references, a letter of appreciation, and 
a Doctor’s Evaluation Aid & Attendance Quick Form. 

 

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

 

_________________________________________________________________ 

 

STATEMENT OF FACTS: 

 

On 7 Jan 58, the applicant was tried by general court-martial for 
assault with intent to produce grievous bodily harm and 
communicating a threat. He pled guilty to the charges and 
specifications and was sentenced to a dishonorable discharge, two 
years confinement, and forfeiture of all pay and allowances. 

 


On 13 Mar 58, the Air Force Board of Review affirmed the findings 
of guilty and the sentence. The applicant appealed to the United 
States Court of Military Appeals on 5 May 58. The Court affirmed 
the findings of guilty but reversed and set aside the decision. 

 

The convening authority ordered a rehearing on the sentence. On 
17 Sep 58, the rehearing was convened and the applicant was 
sentenced to a bad conduct discharge (BCD), confinement for seven 
months. He was credited with confinement for the period 7 Jan 58 
to 29 Aug 58, which he had already served. On 27 Oct 58, the Air 
Force Board of Review affirmed the sentence from the rehearing. 
The applicant’s BCD was ordered to be executed on 31 Oct 58. 

 

Pursuant to the Board’s request, the Federal Bureau of 
Investigation (FBI) provided a copy of an Investigative Report, 
which is at Exhibit C. 

 

On 14 Jun 11, a copy of the FBI Investigative Report and a 
request for post-service information was forwarded to the 
applicant for review and comment within 30 days. In response, 
the applicant’s advocate provides an expanded statement detailing 
the applicant’s post military life (Exhibit H). 

 

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AIR FORCE EVALUATION: 

 

AFLOA/JAJM recommends denial. Although they were not able to 
review the record of trial in this case, and due to the age of 
the case, there was no information regarding the court-martial or 
rehearing in the Air Force Automated Military Justice Analysis 
and Management System, the applicant’s personnel records included 
some information about the court-martial and rehearing, to 
include the Reviews of the Staff Judge Advocate. 

 

The Review of the Staff Judge Advocate reflects the applicant was 
advised to the meaning and effect of his guilty pleas; he 
maintained his guilty plea. After the findings the applicant 
made an unsworn statement through counsel regarding the incident. 
The applicant’s description of the incident raised questions of 
self defense and the applicant’s counsel was questioned on the 
issue of self defense. The defense counsel indicated he was 
aware of the situation and that was just a way of stating it as 
far as the applicant was concerned. Therefore, the Staff Judge 
Advocate determined the applicant’s defense counsel was a 
qualified and certified counsel and was well aware of and fully 
explored all possible defense strategies. Thus, the reviewer 
found the applicant’s guilty pleas to be prudent. 

 

The applicant, during presentencing of the rehearing, indicated 
he pled guilty at his original trial because his defense counsel 
advised him to. The defense counsel made an unsworn statement on 


behalf of the applicant at the rehearing alleging that a guilty 
plea could not have ever been proven, at least in the case of the 
woman the applicant allegedly threatened to kill because she was 
not there. 

 

In the Staff Judge Advocate review of the rehearing, the 
applicant and his counsel tried to show the applicant’s guilty 
plea at the original trial was inadvertent. The Review pointed 
out that an accused is not permitted to change his plea from 
guilty to not guilty during a rehearing on the sentence, nor can 
the law officer enter a plea of not guilty on his behalf. The 
final recommendation was that the sentence be approved and 
adjudged. 

 

The applicant and counsel alleged the applicant’s court-martial 
was unfounded or incorrect because an Article 32 hearing did not 
precede the court-martial. Since the Record of Trial was not 
accessible for this case it cannot be determined what happened 
with the Article 32 hearing. However, it is incorrect to state 
that every general court-martial must be preceded by an Article 
32 hearing. Just as an accused person has a right to an Article 
32 hearing, they also have a right to waive a hearing. The 
applicant’s case received several reviews from the Staff Judge 
Advocate, the Air Force Board of Review and Court. Although 
there was no mention of an Article 32 hearing or an issue with 
the Article 32 hearing of this case, there is strong 
circumstantial evidence that this case either had a hearing or a 
proper waiver of a hearing. 

 

The counselor further alleges the applicant’s rights were 
“further denied” due the court-martial being comprised of only 
officers. Enlisted members have a right to have up to one-third 
of the panel be made up of enlisted members. However, the 
enlisted member can also choose to have their case decided by a 
panel of officers or by a military judge. The applicant’s 
personnel records do not indicate his rights were denied in his 
request for panel members. Furthermore, no documentation has 
been provided to show the applicant was only given the choice of 
a panel consisting of only officer members. 

 

Based on the available records and the documentation provided; 
the applicant’s court-martial and rehearing appear to have been 
processed in accordance with the Air Force policy and the 
governing regulations. 

 

The complete AFLOA/JAJM evaluation is at Exhibit D. 

 

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APPLICANT'S REVIEW OF AIR FORCE EVALUATION: 

 

The applicant’s advocate notes the court-martial was filled with 
errors and did not provide adequate due process. The advisory 
opinion is misguided and it is apparent that no one has given the 


applicant the courtesy of reviewing his court-martial records. 
The excuse given was there were no court-martial records 
available, only his personnel files. The Veteran’s counsel notes 
the opinion stated he was critical of the retrial, when in fact 
he stated the retrial was fairer and almost corrected the wrong 
against the applicant by the Air Force. Someone should have read 
what he stated in his initial statement and addendum, rather than 
making another rush to judgment. It is difficult to believe that 
those who were responsible for reviewing the court-martial 
records and documents did not ask themselves why there was a need 
for a retrial and why the outcome of the retrial was in favor of 
the applicant. Ultimately, there was no Article 32 hearing, the 
board was comprised of only officers, and the applicant was not 
provided a bilingual defense counsel or interpreter 

 

The opinion writer stated they did not have access to the court-
martial records and cannot make a definitive decision regarding 
the Article 32, and they further claim that an Article 32 was not 
required prior to the court-martial or that the applicant could 
have waived the Article 32. These statements are incorrect. The 
opinion writer stated when the court-martial was reviewed the 
Article 32 was not mentioned, why then have a retrial and the 
sudden appearance of an Article 32 and the use of it. 

 

The applicant’s legal counsel was not qualified because he did 
not submit a self defense argument, or that the applicant could 
have requested an all officer panel, or fact the attorney did not 
see the need for an interpreter. Also, the alleged victim did 
not testify at the court-martial. 

 

The applicant’s complete response is at Exhibit F. 

 

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FINDINGS AND CONCLUSIONS OF THE BOARD 

 

We have carefully reviewed the applicant’s submission and the 
evidence of record and do not find a sufficient basis to excuse 
the untimely filing of this application. The applicant did not 
file within three years after the alleged error or injustice was 
discovered as required by Title 10, United States Code, Section 
1552 and Air Force Instruction 36-2603, Air Force Board for 
Correction of Military Records. The applicant has not shown a 
plausible reason for the delay in filing, and we are not 
persuaded that the record raises issues of error or injustice 
which require resolution on the merits. Thus, we cannot conclude 
it would be in the interest of justice to excuse the untimely 
filing of this application. 

 

_________________________________________________________________ 

 


DECISION OF THE BOARD: 

 

The application was not timely filed and it would not be in the 
interest of justice to waive the untimeliness. It is the decision 
of the Board, therefore, to reject the application as untimely. 

 

_________________________________________________________________ 

 

The following members of the Board considered AFBCMR Docket Number 
BC-2011-00145 in Executive Session on 6 Oct 11, under the 
provisions of AFI 36-2603: 

 

 , Panel Chair 

 , Member 

 , Member 

 

The following documentary evidence was considered: 

 

 Exhibit A. DD Form 149, dated 25 Mar 11, w/atchs. 

 Exhibit B. Applicant's Master Military Personnel Records. 

 Exhibit C. FBI Investigative Report. 

 Exhibit D. Letter, AFLOA/JAJM, dated 10 May 11. 

 Exhibit E. Letter, SAF/MRBR, dated 20 May 11. 

 Exhibit F. Letter, Applicant’s Advocate, dated 12 Jun 11. 

 Exhibit G. Letter, AFBCMR, dated 14 Jun 11. 

 Exhibit H. Letter, Applicant’s Advocate, undated. 

 

 

 

 

 

 Panel Chair