RECORD OF PROCEEDINGS
AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS


IN THE MATTER OF:	DOCKET NUMBER:  BC-2013-05819
		COUNSEL:  NONE
		HEARING DESIRED:  NO 


APPLICANT REQUESTS THAT:

His Under Other Than Honorable Conditions (UOTHC) discharge be 
upgraded to general (under honorable conditions).


APPLICANT CONTENDS THAT:

His General Court-Martial Orders (Numbers 1, 4 or 13); do not 
reflect he was discharged with service characterized as UOTHC.  

He has served his time.  However, except for one-third of pay, his 
military pay was reinstated; to include all rights, privileges and 
property for which he was deprived. 

In support of his request, the applicant provides a personal 
statement and various other documents associated with his request. 

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


STATEMENT OF FACTS:

On 7 Jan 74, the applicant enlisted in the Regular Air Force.

On 8 Nov 74, the applicant received non-judicial punishment under 
Article 15, Uniform Code of Military Justice (UCMJ), for failure 
to obey a lawful order and assault in violation of Articles 92 and 
128 of the UCMJ.  For this misconduct, he was reduced to the grade 
of airman basic and ordered into correctional custody for a period 
of 30 days. 

On 22 Jul 75, the applicant received a Letter of Reprimand for 
unlawfully disposing of United States (US) Government property in 
violation of Article 108, UCMJ.  

On or about 3 Feb 76, the applicant Absent himself Without Leave 
(AWOL) and remained absent until on or about 13 Feb 76, in 
violation of Article 86, UCMJ.  

On or about 31 Mar 76, the applicant unlawfully entered a 
building, with intent to commit larceny and stole property valued 
at $1,831.46, the property of the US Government all in violation 
of Articles 130 and 121, UCMJ. 

The applicant was placed in pre-trial confinement from 1 thru 
30 Apr 76.

On 4 Jun 76, the applicant was tried by a General Court-Martial.  
He pled guilty and was found guilty of all the charges and 
specifications of unauthorized absence, housebreaking with intent 
to commit larceny and larceny in violation of Articles 86, 130 and 
121, UCMJ.  On 7 Jun 76, he was sentenced to be dishonorably 
discharged, to forfeit all pay and allowances, to be confined at 
hard labor for two years, and reduced in grade from airman first 
class to airman basic.  The convening authority approved the 
sentence as adjudged.  

According to AFLOA/JAJM letter dated 16 Apr 14, on 9 Sep 76, the 
Air Force Court of Military Review determined the applicant’s plea 
of guilty with respect to the housebreaking charge was 
improvident.  On 10 Jan 77, the United States Court of Military 
Appeals denied the applicant’s petition for grant of review.  On 
10 May 77, the convening authority remitted the unexecuted portion 
of the sentence to confinement at hard labor for one year and 
three months and forfeiture of $240.00 per month for one year and 
three months.  Also, the convening authority ordered the 
applicant’s Bad Conduct Discharge (BCD) be executed.  

On 11 May 77, the applicant’s DD Form 214 was issued.  However, 
the DD Form 214 reflects he received an Under Other Than Honorable 
Conditions discharge rather than a BCD as ordered by the convening 
authority.  He is credited with 2 years, 3 months and 21 days of 
total active service.  


AIR FORCE EVALUATION:

AFLOA/JAJM recommends denial.  Based on a review of the record, 
JAJM finds no error or injustice with the military justice process 
which would warrant upgrading the applicant’s discharge to a 
general (under honorable conditions) discharge.  

The application was submitted more than three years since the 
alleged error.  The application is untimely.  The applicant argues 
that he was in a New York State federal detention facility until 
2011, and has been trying to pursue this with no resolution.  
However, he has not provided enough evidence establishing how his 
incarceration prohibited him from submitting his request within 
three years of his discharge.  

The applicant argues that his discharge characterization should be 
upgraded because he received ineffective assistance of counsel.  
He also claims that the UOTHC is not stated on his court-martial 
orders.  
On 10 May 77, the convening authority ordered the applicant's BCD 
executed. On 11 May 77, the applicant's DD Form 214 was issued.  
The form showed that the applicant received an Under Other Than 
Honorable Conditions (UOTHC) discharge, not a BCD as had been 
ordered by the convening authority.  This appears to be an error.  
Pursuant to 10 United States Code, Section 1552(f), the Board has 
the authority to take action on the sentence of a court-martial 
for purposes of clemency.  Changing the applicant’s DD Form 214 to 
show that he received a BCD at this point would not be an act of 
clemency because it would arguably be a worse discharge 
characterization than the administrative discharge currently 
recorded.  

The complete JAJM evaluation is at Exhibit C.


APPLICANT'S REVIEW OF AIR FORCE EVALUATION:

The Board continues to violate his constitutional rights by 
refusing to review his court-martial transcript.  In the court-
martial transcripts, the two government witnesses state the Air 
Force Office of Special Investigations (OSI) paid them each 
$125.00 to enable and convince him to commit a crime.  This is 
considered entrapment.  To date, the Air Force has made no mention 
of reviewing the court-martial minutes regarding the government 
witness statements.  Without reviewing these statements the Board 
cannot make a competent, honest and constitutionally correct 
review of his records and this makes the process a legal injustice 
and a violation of his constitutional rights.  

Since his discharge, he has obtained quality employment in the 
construction field.  He was married for 26 years and has two 
children who he supports.  He pays taxes and has never been a 
burden to this country.  He put his life on the line to defend 
this country as a non-citizen.  Justice and the United States 
Constitution dictate he receive the benefits he is due.  

He never stated that being in a detention facility delayed his 
appeals process for an UOTHC discharge.  

The original charge of housebreaking with the intent to commit 
larceny and larceny was considered improvident by the Air Force 
Court of Military Review.  Meaning he should have not submitted a 
plea of guilty with respect to the housebreaking charge.  
Therefore, the only charge remaining would have been the 
unauthorized absence which did not warrant a General Court-
Martial, dishonorable discharge, forfeiture of all pay and 
allowances, confinement at hard labor for two years and reduction 
to the grade of airman basic.  He pled guilty under duress from 
his assigned lawyer. 

The applicant’s complete submission is at Exhibit E.  


FINDINGS AND CONCLUSIONS OF THE BOARD:
After careful consideration of applicant’s request and the 
evidence of record, we find the application untimely.  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.  The 
applicant has not shown a sufficient 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. 


THE BOARD DETERMINES THAT:

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-2013-05819 in Executive Session on 18 Sep 14, under the 
provisions of AFI 36-2603:

	Panel Chair
	Member
		Member

The following documentary evidence was considered:

	Exhibit A.  DD Form 149, dated 17 Dec 13, w/atchs.
	Exhibit B.  Applicant's Master Personnel Records.
	Exhibit C.  Letter, AFLOA/JAJM, dated 16 Apr 14.
Exhibit D.  Letter, SAF/MRBR, dated 25 Apr 14.
Exhibit E.  Letter, Applicant, dated 13 May 14.



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