RECORD OF PROCEEDINGS
AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS

IN THE MATTER OF:	DOCKET NUMBER:  BC-2001-02110
		INDEX CODE:  110.00

		COUNSEL:  NONE

		HEARING DESIRED:  YES

MANDATORY CASE COMPLETION DATE:  28 AUG 07

_________________________________________________________________

APPLICANT REQUESTS THAT:

His undesirable discharge be upgraded.

_________________________________________________________________

APPLICANT CONTENDS THAT:

In July 1950, he was convicted of breaking and entering.  He indicates he is 76 years old and believes his discharge should be upgraded.

In support of his appeal, the applicant provided DD Form 293, Application for the Review of Discharge or Dismissal from the Armed Forces of the United States.

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

_________________________________________________________________

STATEMENT OF FACTS:

On 12 February 1948, the applicant enlisted in the Regular Air Force in the grade of private for a period of three years.

On 29 July 1950, the applicant was convicted by the State of Oklahoma, Garfield County, for breaking and entering.  He was sentenced to two years confinement in the State Penitentiary.

On 9 August 1950, the applicant’s commander initiated discharge action against him for the July 1950 civil conviction.

On 16 August 1950, the applicant was discharged with an undesirable discharge in the grade of corporal under the provisions of AFR 39-22 - Conviction by Civil Court.  He served two years, six months, and five days on active duty.

On 27 March 1957, the Air Force Discharge Review Board (AFDRB) considered and denied the applicant’s request that his undesirable discharge be upgraded to an honorable discharge.  They concluded the evidence submitted was insufficient to warrant a change in the type or nature of his discharge.  They further concluded the type of discharge received was equitable and proper (Exhibit B).

Pursuant to the Board's request, the Federal Bureau of Investigation (FBI) Report of Investigation, Clarksburg, West Virginia, provided an arrest record which is at Exhibit C.  The report was not forwarded to the applicant because the only entry was the civil conviction - breaking and entering while on active duty.

_________________________________________________________________

AIR FORCE EVALUATION:

AFPC/DPPRS recommends denial.  DPPRS states based on the documentation on file in the master personnel records, the discharge was consistent with the procedural and substantive requirements of the discharge regulation and was within the discretion of the discharge authority.

The applicant did not submit any evidence or identify any errors or injustices that occurred in the discharge processing.  Nor did he provide facts warranting a change to his character of service.

The DPPRS complete evaluation is at Exhibit D.

HQ AFPC/JA recommends denial.  JA states the application was not timely filed and should be denied on that basis alone.  The applicant possessed all the information necessary to pursue his claim long before the statute of limitations expired and he offers no meaningful explanation for why he waited 56 years for his discharge to be reviewed by the AFBCMR other than:  “Give me a break!! I’m 76 years old.”  In their opinion, the interests of justice would not be served by excusing the applicant’s failure to submit this issue within the required time period; such waivers should be limited to situations to preclude an actual injustice.

Timeliness aside, the applicant’s claim also fails on the merits.  To obtain relief, the applicant must show by a preponderance of the evidence there exists some error or injustice warranting corrective action by the Board.  The United States Claims Court has repeatedly defined an injustice in the context of BCMR cases as “treatment by military authorities that shocks the sense of justice.”  The applicant provides no persuasive evidence that his discharge characterization did not comply with the requirements contained in the version of AFR 39-22 in effect at the time he was administratively separated.  There is no error or injustice in this case.

The JA complete evaluation is at Exhibit E.

_________________________________________________________________

APPLICANT'S REVIEW OF AIR FORCE EVALUATION:

On 7 April 2006, copies of the Air Force evaluations were forwarded to the applicant for review and comment within 30 days (Exhibit F).  As of this date, this office has received no response.

_________________________________________________________________

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 warranting upgrade of the applicant’s discharge.  After a thorough review of the evidence provided, we are not persuaded that the applicant’s discharge and characterization of his service are erroneous or unjust.  Evidence has not been presented which would show that the appropriate standards were not applied or that the applicant was not afforded all the rights to which entitled at the time of his discharge.  Therefore, we agree with the opinions and recommendations of the Air Force offices of primary responsibility and adopt their rationale as the basis for our conclusion that the applicant has not been the victim of an error or injustice.  The only other basis upon which to upgrade his discharge would be based on clemency.  However, he has failed to provide documentation pertaining to his post-service activities.  Should he provide such documentary evidence we would be willing to reconsider his appeal.  Otherwise, we find no basis upon which to favorably consider his request.

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 involved.  Therefore, the request for a hearing is not favorably considered.

_________________________________________________________________

THE BOARD DETERMINES THAT:

The applicant be notified the evidence presented did not demonstrate the existence of an error or an injustice; the application was denied without a personal appearance; and 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 AFBCMR Docket Number BC-2001-02110 in Executive Session on 13 June 2006, under the provisions of AFI 36-2603:

			Panel Chair
			Member
			Member

The following documentary evidence was considered:

   Exhibit A.  DD Form 149, dated 25 Feb 06, w/atchs.
   Exhibit B.  Applicant's Master Personnel Records.
   Exhibit C.  FBI Report of Investigation.
   Exhibit D.  Letter, AFPC/DPPRS, dated 24 Mar 06.
   Exhibit E.  Letter, AFPC/JA, dated 31 Mar 06.
   Exhibit F.  Letter, SAF/MRBR, dated 7 Apr 06, w/atch.