RECORD OF PROCEEDINGS
AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS

IN THE MATTER OF:				DOCKET NUMBER:  BC-2003-00588
INDEX CODE:  110.02
	XXXXXXXXXXXXXXXXXX				COUNSEL: NONE

	XXX-XX-XXXX					HEARING DESIRED:  NO

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APPLICANT REQUESTS THAT: 

His undesirable discharge be upgraded to honorable.

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APPLICANT CONTENDS THAT:

Legal counsel did not represent him because he couldn’t afford one; therefore, he represented himself.  In 1962, Attorney General XXXXXXXXX ruled that anyone sentenced without an attorney was sentenced illegally.  Since he had no valid attorney, his discharge was illegal.

In support of his application, he provided a personal statement and copies of his DD Forms 214, Report of Separation from the Armed Forces of the United States.  A copy of the applicant’s complete submission with attachments is at Exhibit A.

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STATEMENT OF FACTS:

The majority of the applicant’s records were lost or destroyed and efforts at reconstruction have been unsuccessful.  The following information was extracted from the applicant’s separation document.

The applicant entered active military service on 15 July 1953.  While serving in the grade of staff sergeant, he was separated from the Air Force on 9 March 1956 under the provisions of AFR 39-22 (conviction by civil court).  Facts and circumstances of his discharge are not in his records.  He was separated with an undesirable discharge.  The applicant had served two years, three months, and thirteen days on active duty.  His time lost was 132 days.

Pursuant to the Board’s request, the Federal Bureau of Investigation, Clarksburg, WV, provided a copy of an Investigation Report pertaining to the applicant, which is at Exhibit F.

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AIR FORCE EVALUATION:

AFPC/DPPRS recommends denial.  DPPRS states that based on the DD Form 214, they believe the discharge was consistent with the procedural and substantive requirements of the discharge regulation at the time and was within the discretion of the discharge authority.  The applicant did not submit any evidence to support any errors or injustices that occurred in the discharge processing.  Additionally, the applicant provided no facts warranting an upgrade of the discharge he received.  The DPPRS evaluation is at Exhibit C.

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APPLICANT'S REVIEW OF AIR FORCE EVALUATION:

Copies of the Air Force evaluation and the FBI report were forwarded to the applicant on 21 March 2003 and 21 April 2003 for review and comment (Exhibits D and G).  

In response to the Air Force evaluation, the applicant states that he regrets his actions and would like an opportunity to prove himself to his Country.  He reiterated his assertion that Robert Kennedy ruled anyone sentenced without an attorney had to be turned loose.  The applicant’s rebuttal is at Exhibit H.

With respect to his FBI report, the applicant submitted two statements requesting a 30-day extension to find the guilty parties (Exhibit J).  His request was approved on 22 May 2003 (Exhibit K).  As of this date, this office has received no response.

The applicant was given the opportunity to submit comments about his post service activities (see Exhibit E).  His reply is at Exhibit I.

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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.  The applicant did not provide persuasive evidence showing the information in the discharge case was erroneous, his substantial rights were violated, or that his commanders abused their discretionary authority.  The characterization of discharge which was issued at the time of the applicant’s separation accurately reflects the circumstances of his separation and we do not find the characterization of discharge to be in error or unjust.  In view of the foregoing and in the absence of evidence by the applicant attesting to a successful post-service adjustment in the years since his separation, we are not inclined to extend clemency in this case.  Therefore, we conclude that no basis exists upon which to recommend favorable action on his request that it be changed.

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

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THE BOARD DETERMINES THAT:

The applicant be notified that the evidence presented did not demonstrate the existence of 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 this application in Executive Session on 9 July 2003, under the provisions of AFI 36‑2603:

	Panel Chair
	Member
	Member

The following documentary evidence for Docket No. BC-2003-00588 was considered:

	Exhibit A.  DD Form 149, dated 12 Feb 03, with attachments.
	Exhibit B.  Applicant's Master Personnel Records.
	Exhibit C.  Letter, AFPC/DPPRS, dated 11 Mar 03.
	Exhibit D.  Letter, SAF/MRBR, dated 21 Mar 03.
	Exhibit E.  Letter, AFBCMR, dated 10 Apr 03.
	Exhibit F.  FBI Record MD0SI0100, dated 8 Apr 03.
	Exhibit G.  Applicant’s Rebuttal, dated 7 May 03.
	Exhibit I.  Applicant’s Rebuttal, dated 20 Apr 03.
	Exhibit J.  Applicant’s Extension Request, dated 27 Apr 03.
	Exhibit K.  Letter, AFBCMR, dated 22 May 03.

						
									Panel Chair