RECORD OF PROCEEDINGS
         AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS

IN THE MATTER OF:	DOCKET NUMBER:  01-02553
		INDEX CODE:  110.00

	 	COUNSEL:  NONE

	 	HEARING DESIRED:  NO

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APPLICANT REQUESTS THAT:

His under other than honorable conditions discharge be upgraded to general, under honorable conditions.

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APPLICANT CONTENDS THAT:

The offense for which he was convicted, issuing a bad check, was nonviolent.  He does not deny that he committed the offense; however, had he been effectively represented by counsel, the charge would have been reduced to a misdemeanor status and he would have been allowed to remain in the service.  His record contains no other disciplinary actions during his period of service.  His sense of shame over being discharged as “undesirable” has prevented him from seeking veterans benefits.

Applicant’s complete submission is attached at Exhibit A.

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STATEMENT OF FACTS:

On 14 May 57, the applicant enlisted in the Regular Air Force (RegAF) for a period of four years in the grade of airman basic.

On 12 Nov 57, applicant was absent without leave (AWOL).  His AWOL was terminated by apprehension by civil authorities on 13 Nov 57.  He was confined from 13 Nov 57 to 13 Jan 58 (63 days) pending further investigation.

On 3 Feb 58, he was tried and convicted for issuing fictitious checks.  He was given five years probation.

On 6 Feb 58, the commander recommended the applicant be discharged from the Air Force under the provisions of AFR 39‑22 (Conviction by Civil Court) with an undesirable discharge.  The reasons for the commander’s actions were that the applicant was tried and convicted for violation of Section 476a of the Penal Code of California; issuing fictitious checks which was punishable by incarceration in the State Penitentiary for a period of 1 to 14 years.

On 21 Feb 58, the applicant was discharged under the provisions of AFR 39‑22 (Attrition, Conviction by Civil Court) with an under other than honorable conditions discharge in the grade of airman third class.  He was credited with seven months and five days of active service.

Pursuant to the Board’s request, the Federal Bureau of Investigation (FBI), Clarksburg, West Virginia, provided an investigative report which is attached at Exhibit C.

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AIR FORCE EVALUATION:

AFPC/DPPRS reviewed this application and recommends that if a check of the FBI files proves negative, his discharge should be upgraded to under honorable conditions (general).  They state that considering the discharge was over 43 years ago and the type of offenses, they would recommend clemency.

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

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APPLICANT'S REVIEW OF AIR FORCE EVALUATION:

A copy of the Air Force evaluation was forwarded to applicant on 2 Nov 01 for review and response within 30 days.  As of this date, no response has been received by this office.

On 31 Jan 02, a copy of the FBI report was forwarded to applicant for review and response (see Exhibit F).  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.  Insufficient relevant evidence has been presented to demonstrate the existence of probable error or injustice.  After thoroughly reviewing the evidence of record and noting the applicant’s complete submission, we find no evidence of error or injustice.  In this respect, we note that the applicant’s discharge appears to be in compliance with the governing Air Force Regulation in effect at the time of his separation and he was afforded all the rights to which entitled.  The applicant has provided no evidence to indicate that his separation from the Air Force was inappropriate.  Therefore, in view of the above, and in the absence of evidence to the contrary, we find no compelling basis to recommend granting the relief sought.

4.  We also find insufficient evidence to warrant a recommendation that the discharge be upgraded on the basis of clemency.  Considering that the discharge occurred over 43 years ago and the type of offense committed by the applicant, the appropriate office of the Air Force has indicated that they would recommend clemency if a check of the FBI files proves negative.  However, as indicated in the FBI investigate report, the applicant has numerous arrests from 1962 to 1999, to include convictions for writing bad checks - the basis for his discharge.  In view of this, and considering the applicant's overall quality of service, we do not believe that clemency is warranted.

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THE BOARD DETERMINES THAT:

The applicant be notified that the evidence presented did not demonstrate the existence of probable 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.

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The following members of the Board considered Docket Number? (DN) in Executive Session on 14 March 2002, under the provisions of AFI 36‑2603:

	Panel Chair
	Member
	Member

The following documentary evidence was considered:

    Exhibit A.  DD Form 149, dated 24 Sep 01, w/atchs.
    Exhibit B.  Applicant's Master Personnel Records.
    Exhibit C.  Investigative Report, FBI.

    Exhibit D.  Letter, AFPC/DPPRS, dated 18 Oct 01.
    Exhibit E.  Letter, SAF/MRBR, dated 2 Nov 01.
    Exhibit F.  Letter, AFBCMR, dated 31 Jan 02.