RECORD OF PROCEEDINGS
         AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS

IN THE MATTER OF:	DOCKET NUMBER:  BC-2013-00735

			COUNSEL:  NONE

			HEARING DESIRED: YES

________________________________________________________________

APPLICANT REQUESTS THAT:

His under other than honorable conditions (UOTHC) character of 
service be upgraded.  

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APPLICANT CONTENDS THAT:

At the time of his trial he was 19 years old and acting on the 
advice of the attorney assigned to handle his case.  He was told 
he had two options to go through a retraining program or take 
the discharge.  His attorney advised him to take the discharge.  
In looking back he takes the blame for his part in everything 
that happened.  As the years have gone by he has been able to 
stay out of trouble and move on with his life.  The results of 
undocumented injuries he received while in the military is 
causing him great difficulties and he is seeking help.  

In support of his request the applicant submitted a handwritten 
statement, his court martial special order dated 28 March 1975, 
and documents pertaining to his trial.  

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

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STATEMENT OF FACTS:

According to copies of documents extracted from his military 
personnel record (MPR) the applicant enlisted in the Regular Air 
Force on 18 January 1974 and was released on 23 September 1975.  
He was credited with serving 1 year, 8 months and 4 days of 
active duty service.  

The remaining relevant facts pertaining to this application are 
contained in the letter prepared by the appropriate office of 
the Air Force at Exhibit C.  

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AIR FORCE EVALUATION:

1.  AFLOA/JAJM recommends denial.  JAJM states the applicant's 
sentence to a bad conduct discharge was well within legal 
limits.  This discharge was and continues to be part of a proper 
sentence and properly characterizes his service.

2.  On or about 30 December 1974, the applicant stole a portable 
television from another airman of a value in excess of $50.00 
but less than $100.00.  On 28 January 1975, the applicant, then 
an airman basic, pled not guilty but was found guilty of one 
charge and one specification of larceny, in violation of Article 
121, Uniform Code of Military Justice (UCMJ).  The applicant was 
sentenced to a bad conduct discharge.  On 28 March 1975, the 
convening authority approved the finding and sentence.  The 
applicant appealed to the Air Force Court of Criminal Appeals 
who affirmed the approved findings and sentence on 24 July 1975.  
The applicant did not petition the United States Court of 
Appeals for the Armed Forces for review.  The applicant's bad 
conduct discharge was ordered to be executed on 
15 September 1975.  

3.  Under 10 U.S.C. § 1552 (f), which amended the basic 
corrections board legislation, the Board's 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 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 effect of section 1552 (f) is that 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 effective date of the UCMJ).

4.  Clemency in this case would be unfair to those 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 in accordance with 38 USC §5303 (a).  This makes 
sense if the benefit program is to have any real value.  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 AFLOA/JAJM evaluation is at Exhibit C. 

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APPLICANT'S REVIEW OF AIR FORCE EVALUATION:

A copy of the Air Force evaluation was forwarded to the 
applicant on 14 April 2013, for review and comment within 30 
days (Exhibit D).  To date, a response has not been received.  

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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 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 that the applicant’s service characterization, which 
had its basis in his conviction by special court-martial 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 offense to 
which convicted, and the absence of any documentation pertaining 
to post-service activities.  Based on the evidence of record, we 
cannot conclude that clemency is warranted.  In view of the 
above, we cannot recommend approval based on the current 
evidence of record.

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 issue(s) 
involved.  Therefore, the request for a hearing 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 5 November 2013, under the provisions of 
AFI 36-2603:

			, Panel Chair
			, Member
			, Member


The following documentary evidence was considered in AFBCMR 
Docket Number BC-2013-00735:

    Exhibit A.  DD Form 149 dated 17 January 2013, w/atchs.
    Exhibit B.  Applicant’s Master Personnel Records.
    Exhibit C.  Letter, AFLOA/JAJM, dated 4 April 2013.
    Exhibit D.  Letter, SAF/MRBR, dated 14 April 2013.




                                   
                                   Panel Chair