RECORD OF PROCEEDINGS
AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS

IN THE MATTER OF:	DOCKET NUMBER: 01-01141
		INDEX CODE 110.00 110.02
	 	COUNSEL:  AMERICAN LEGION

	 	HEARING DESIRED:  YES

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APPLICANT REQUESTS THAT:

His discharge be upgraded to honorable and the narrative reason for his discharge be changed.

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THE APPLICANT CONTENDS THAT:

In essence, that his discharge be upgraded based on clemency.

The applicant states that he is 65 years of age and has been a good citizen since his service.  He has suffered from the stigma of a bad discharge for over 45 years.  He feels that if God can forgive him so can the Air Force.

In support of the appeal, applicant submits his personal statement and statements from friends and a co-worker.

Applicant’s complete submission is attached at Exhibit A.

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STATEMENT OF FACTS:

On 21 April 1954, the applicant enlisted in the Regular Air Force for a period of four years at the age of 17.

On 5 November 1954, the applicant was tried by a Special Court-Martial (SCM) for violation of Article 108 (i.e., damage of military property) of the Uniform Code of Military Justice (UCMJ) and pled guilty to the charge that he cut the reservation fence at Keesler AFB on 8 October 1954. He was found guilty and sentenced to three months confinement at hard labor and forfeiture of $55 per month for a period of three months.

On 2 February 1955, the applicant was tried by a SCM for violation of Article 86 (i.e., Absent Without Authority (AWOL)), UCMJ, and pled guilty to the charge that on 4 December 1954, he absented himself from his organization, without authority, and did not return until 19 December 1954.  However, he pled not guilty to the charge that on 2 December 1954, he failed to go to at the time prescribed to his appointed place of duty (i.e., Hard Labor Roll Call).  He was found guilty of both charges and was sentenced to six months confinement at hard labor and forfeiture of $55 per month for six months.

On 21 March 1955, the applicant was tried by a General Court-Martial for violation of Article 95 (i.e., resistance, breach of arrest and escape), UCMJ, and pled guilty to the charge that on 14 February 1955, he escaped from lawful confinement in the Base Stockade.  He was found guilty and sentenced to a dishonorable discharge, forfeiture of all pay and allowances, and confinement at hard labor for one year.

The applicant was discharged on 18 June 1955, under the provisions of AFR 39-18 and GCM Order 34, with service characterized as dishonorable.  He completed 8 months and 11 days of active service, with 168 days lost time.

Pursuant to the Board's request, the Federal Bureau of Investigation (FBI), Clarksburg, WV, has provided an Investigative Report that is at Exhibit G.

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AIR FORCE EVALUATION:

The Separations Branch, AFPC/DPPRS, reviewed the application and states that the discharge was consistent with the procedural and substantive requirements of the discharge regulation.  In addition, the discharge was within the sound discretion of the discharge authority.  The applicant has stated that he has been a good citizen since his discharge, but the facts regarding his discharge remain the same.  The applicant did not submit any new evidence or identify any errors or injustices that occurred in the discharge processing, nor has he provided facts warranting an upgrade of his discharge.  Therefore, they recommend denial of his request.

A complete copy of the Air Force evaluation is attached at Exhibit C.

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APPLICANT’S REVIEW OF AIR FORCE EVALUATION:

The applicant reviewed the Air Force evaluation and states that he was only 17 years of age at the time of the alleged misconduct.  He was confined and was never told or advised that he could appeal or request an upgrade of his discharge within three years of release.  He feels that clemency is warranted because it is an injustice for him to continue to suffer the adverse consequences of his discharge.

The applicant’s complete response is attached at Exhibit E.

The applicant’s counsel has reviewed the evaluation and states that the applicant’s submission, in conjunction with his military records, amply advance his contentions and substantially reflect the probative facts needed for equitable review.

Counsel’s complete response is attached at Exhibit F.

Complete copies of the FBI Investigation Report and the Information Bulletin - Upgrade of Discharge - Clemency were forwarded to the applicant on 7 August 2001 for review and response with 30 days.  However, 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.  We find no impropriety in the characterization of applicant’s discharge.  It appears that responsible officials applied appropriate standards in effecting the separation, and we do not find persuasive evidence that pertinent regulations were violated or that applicant was not afforded all the rights to which entitled at the time of discharge.  Considered alone, we conclude that the discharge proceedings were proper and that the characterization and reason for the discharge were appropriate to the existing circumstances.

4.  Consideration of this Board, however, is not limited to the events which precipitated the discharge.  We have a Congressional mandate which permits consideration of other factors; e.g., applicant’s background, the overall quality of service, and post-service activities and accomplishments.  Further, we may base our decision on matters of equity and clemency rather than simply on whether rules and regulations which existed at the time were followed.  This is a much broader consideration than officials involved in the discharge were permitted, and our decision in no way discredits the validity of theirs.

5.  Under our broader mandate and after careful consideration of all the facts and circumstances of applicant’s case, we are persuaded that applicant has overcome the behavioral traits which led to the contested discharge and has been a productive member of society.  We recognize the adverse impact of the discharge applicant received; and, while it may have been appropriate at the time, we believe it would be an injustice for applicant to continue to suffer its effects.  Although, we find that upgrading the applicant’s dishonorable discharge to general (under honorable conditions) is appropriate as a matter of equity and on the basis of clemency, we find insufficient evidence of a probable error or injustice to warrant changing the narrative reason for his discharge and upgrading his discharge to fully honorable.

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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 18 June 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 2 October 2001, under the provisions of AFI 36‑2603:

The following documentary evidence was considered:

    Exhibit A.  DD Form 149, dated 19 Apr 01, w/atchs.
    Exhibit B.  Applicant's Master Personnel Records.
    Exhibit C.  Letter, AFPC/DPPRS, dated 10 May 01.
    Exhibit D.  Letters, SAF/MIBR, dated 15 Jun 01.
    Exhibit E.  DVA Form 21-4138, dated 14 Jun 01.
	Exhibit F.  Letter, Counsel, dated 28 Jun 01, w/atch.
	Exhibit G.  Letter, AFBCMR, dated 7 Aug 01, w/atchs.

AFBCMR 01-01141

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 APPLICANT, be corrected to show that on 18 June 1955, he was discharged with service characterized as general (under honorable conditions).

                                                                            
                                                                            Director
                                                                            Air Force Review Boards Agency