RECORD OF PROCEEDINGS
AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS

IN THE MATTER OF:				DOCKET NUMBER:  BC-2012-03950
      COUNSEL:                          
	                        		HEARING DESIRED:  YES

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APPLICANT REQUESTS THAT: 

His dishonorable discharge be upgraded to an honorable discharge.  

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APPLICANT CONTENDS THAT:

The incident that led to his discharge was a one-time mistake of a 
19-year old kid.  He has spent the last half-century serving as a 
role model and aiding society as a nurse.  

In a footnote from the applicant’s legal counsel’s request to the 
Board, the applicant alleges ineffective assistance of counsel and 
challenges the qualifications of the law officer which presided over 
the applicant’s case.   

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

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STATEMENT OF FACTS:

On 13 April 1960, the applicant, then an airman third class, was 
tried at a general court-martial at Lackland Air Force Base, Texas.  
He was charged with one charge and one specification of possession 
of marijuana in violation of Article 134, Uniform Code of Military 
Justice (UCMJ), and one charge and one specification of selling 
another airman marijuana cigarettes in violation of Article 134, 
UCMJ.  The applicant pled guilty to the charges and specifications 
and was found guilty of all charges and specifications.  He was 
sentenced to a dishonorable discharge, confinement for one year, 
forfeiture of all pay and allowances, and reduction to the grade of 
airman basic.  On 23 May 1960, the convening authority approved the 
sentence of dishonorable discharge, forfeiture of all pay and 
allowances, reduction to airman basic, and confinement for one year.  
The applicant’s dishonorable discharge was ordered to be executed in 
11 August 1960 after service of confinement.  

The applicant was discharged effective 13 September 1960 with a 
dishonorable discharge, with a reason for discharge of “Sentence of 
Court-Martial.”  He served one year and four days on active duty 
with 205 days lost time from 22 February 1960 through 13 September 
1960. 

The Air Force Board for Correction of Military Records (AFBCMR) 
considered and denied the applicant’s request to upgrade his 
discharge on 11 October 1963 and 28 November 1969.  

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AIR FORCE EVALUATION:

AFLOA/JAJM recommends denial.  JAJM states an applicant must file an 
application within three years after an error or injustice is 
discovered or, with due diligence, should have been discovered.  The 
applicant’s court-martial took place in 1960 and his discharge was 
finalized in 1960.  The application is untimely.  

The applicant has alleged no error in his court-martial.  The only 
potential errors alleged are ineffective assistance of counsel and 
the qualifications of the legal officer who presided over the case, 
which is evidenced in a footnote of the counsel’s memorandum to the 
Board.  Their office is unable to examine the official record of 
trial in this case; however, they have reviewed the documents 
provided by the applicant which includes a copy of the verbatim 
transcript from the trial.  The applicant, who was represented by 
military counsel, had the opportunity to demand the government prove 
the offenses against him.  Prior to accepting his guilty plea, the 
military judge (then known as the legal officer) ensured the 
applicant understood the meaning and effect of his plea and the 
maximum punishment that could be imposed if his guilty plea was 
accepted by the court.  Ineffective assistance of counsel has a high 
burden of proof and there is no evidence in the record of trial, as 
provided by the applicant, that the individual defense counsel, the 
applicant chose to represent him in trial, provided ineffective 
assistance.  The court received evidence in aggravation, as well as 
in extenuation and mitigation, prior to crafting an appropriate 
sentence for the crimes committed. The court-martial took all of 
these factors into consideration when imposing the applicant’s 
sentence.  There is no evidence the legal officer who presided over 
the case was unqualified to do so in this case.  

It is JAJM’s opinion that clemency in this case would be unfair to 
those individuals who honorably served their country while in 
uniform.  It addition, it would be offensive to 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.

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COUNSEL'S REVIEW OF AIR FORCE EVALUATION:

The advisory opinion recommends the Board deny the applicant’s 
request as untimely; however, his client was a teenager at the time 
and needed more than three years to properly demonstrate that he is 
deserving of the requested upgrade.  The applicant has been a model 
citizen since this one blemish in his life.  Justice would be best 
served by upgrading his discharge.  

The advisory opinion also comments that “It would be offensive to 
all those who served honorably to extend the same benefits to 
someone who committed a crime such as the applicant’s while on 
active duty, especially since he was court-martialed three times.”  
His client was court-martialed only one time and one time only.  He 
has no other court-martial convictions and was certainly never 
court-martialed three times.  This offensive mischaracterization of 
the applicant’s service record appears to be a very sloppy attempt 
to “cut and paste” from another advisory opinion regarding another 
applicant pending before this honorable Board.  It is particularly 
disturbing that such a grievous error could occur in a matter of 
such great importance.  

His client humbly requests that he be allowed to personally appear 
before the Board to further demonstrate that favorable action is 
warranted on his application.

The counsel’s complete rebuttal is at Exhibit E.  

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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 an 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 1552(f), 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 Uniform Code of Military Justice (UCMJ).  We have 
considered the applicant's overall quality of service, the court-
martial conviction which precipitated the discharge, the seriousness 
of the offenses to which convicted, and the absence of any 
documentation pertaining to his post-service activities.  Based on 
the evidence of record, we cannot conclude that it is in the 
interest of justice to recommend clemency in this case.  As such, 
the applicant’s request is denied.


4.  The applicant's case is adequately documented and it has not 
been shown that a personal appearance with or without counsel will 
materially add to our understanding of the issues involved.  
Therefore, the request for a hearing is not favorably considered.

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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 AFBCMR Docket Number 
BC-2012-03950 in Executive Session on 29 May 2013, under the 
provisions of AFI 36-2603:

	                      , Panel Chair
	                      , Member
	                      , Member

The following documentary evidence pertaining to AFBCMR Docket 
Number BC-2012-03950 was considered:

Exhibit A.  DD Form 149, dated 8 Aug 12, w/atchs.
Exhibit B.  Applicant's Master Personnel Records.
Exhibit C.  Letter, AFLOA/JAJM, dated 27 Nov 12.
Exhibit D.  Letter, SAF/MRBR, dated 11 Dec 12. 
Exhibit E.  Letter, Counsel, dated 3 Jan 13. 




								                          
								Panel Chair
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