RECORD OF PROCEEDINGS
AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS

IN THE MATTER OF:	DOCKET NUMBER:  01-00061
					INDEX CODE:  110.00

					COUNSEL:  THE AMERICAN LEGION

					HEARING DESIRED: NO

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APPLICANT REQUESTS THAT:

His undesirable discharge be upgraded to a discharge under honorable conditions.

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APPLICANT CONTENDS THAT:

He was intoxicated, passed out and awoke to find a man in bed with him trying to perform a homosexual act with him.  He was embarrassed and humiliated and did not report the incident at the time.  He did not receive an Article 15 or a court-marital and he did not receive due process of law according to Air Force regulations.  He was not informed of anything that was happening.  He was humiliated and disappointed in the unfair way he was treated.  He tried to forget that part of his life and struggled to make a new life for himself and his family.  Regardless of his unfortunate circumstances; i.e., a fifth grade education, an undesirable discharge, lack of work and financial burdens, he managed to raise five upstanding children, work steadily, provide a good home and education for his family and he is a respected member of his community.  He has maintained a flawless criminal record and has not received so much as a speeding ticket.  He has not consumed alcohol in over 30 years.

He is 68 years old and has had a five bypass heart operation.  His only sources of income are Social Security and Medicare.  He once again finds himself in financial stress.  A discharge upgrade would allow him to enroll in the Veterans Administration medical care system for health care and prescription assistance for heart medication which costs approximately $500 each month.

The applicant's complete submission is attached at Exhibit A.

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STATEMENT OF FACTS:

Applicant enlisted in the Regular Air Force on 23 May 1952, in the grade of airman basic for a period of 4 years.

On 2 August 1955, the applicant was notified of his commander's intent to initiate discharge action against him because there was reason to believe that the applicant was a class II homosexual.  The commander recommended an undesirable discharge.

The commander advised him that he had a right to consult legal counsel, the right to present his case before an administrative discharge board, to submit statements in his own behalf or to waive his rights to an administrative discharge board.  The applicant consulted counsel, waived his right to a Board hearing, and did not submit a statement in his own behalf.

The discharge authority approved an undesirable discharge.

The applicant was subsequently discharged on 7 October 1955, in the grade of A3C with an undesirable discharge, under the provisions of AFR 35-66 (Homosexuality).  He completed 3 years, 4 months and 6 days of total active military service.

Pursuant to the Board’s request, the Federal Bureau of Investigation, Clarksburg, WV, indicated on 6 June 2001, that, on the basis of the data furnished, they are unable to locate an arrest record.

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AIR FORCE EVALUATION:

The Separations Branch, HQ AFPC/DPPRS, reviewed this application and recommended clemency based on the following facts:  The discharge occurred over 44 years ago.  The applicant is a respected member of his community.  He was married at the time of the incident and is still married.  He has raised five children.  He had a low level of education and may not have been aware of his rights.  Under current Department of Defense and Air Force guidelines, the member would have received a discharge characterization of under honorable conditions (general) since his records do not indicate he attempted, solicited, or committed a homosexual act by using force, coercion, or intimidation.  Therefore, they recommended that his discharge be upgraded to a general (under honorable conditions) discharge. 

A complete copy of the evaluation is at Exhibit C.

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APPLICANT'S REVIEW OF AIR FORCE EVALUATION:

A copy of the evaluation was forwarded to the applicant and his counsel on 27 April 2001, for review and response within 30 days (Exhibits D-1 and D-2).  As of this date, no response has been received by this office.

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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.  Sufficient relevant evidence has been presented to demonstrate the existence of probable error or injustice.  Although the available record does not substantiate that the applicant's discharge was improper or contrary to the provisions of the governing regulation in effect at the time, and he provided no evidence regarding his activities since leaving the service, we are persuaded that corrective action is appropriate on the basis of clemency.  We noted that knowledgeable officials have indicated to our satisfaction that he has no arrest record and no derogatory information on file.  Therefore, we are in agreement with the opinion and recommendation of the appropriate Air Force office, HQ AFPC/DPPRS, that considering the applicant’s age and apparent immaturity at the time of the incident and his stated contributions to society over the past 44 years, his discharge should be upgraded to general.  Accordingly, we recommend that the records be corrected as indicated below. 

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THE BOARD RECOMMENDS THAT:

The pertinent military records of the Department of the Air Force relating to APPLICANT be corrected to show that, on 7 October 1955, he was discharged with service characterized as general (under honorable conditions).

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The following members of the Board considered this application in Executive Session on 27 June 2001, under the provisions of AFI 36-2603:

		Panel Chair
		Member
		Member

All members voted to correct the records, as recommended.  The following documentary evidence was considered:

     Exhibit A.  DD Form 149, dated 14 Mar 2001, w/atchs.
     Exhibit B.  Applicant's Available Master Personnel Records.
     Exhibit C.  Letter, AFPC/DPPRS, dated 9 Apr 2001.
     Exhibit D.  Letters, SAF/MIBR, dated 27 Apr 2001.
     Exhibit E.  FBI Report, dated 6 Jun 2001.

			
			Acting Panel Chair

AFBCMR 01-00061

MEMORANDUM FOR THE CHIEF OF STAFF

	Having received and considered the recommendation of the Air Force Board for Correction of Military Records and under the authority of Section 1552, Title 10, United States Code (70A Stat 116), it is directed that:

	The pertinent military records of the Department of the Air Force relating to, be corrected to show that on 7 October 1955, he was discharged with service characterized as general (under honorable conditions).