RECORD OF PROCEEDINGS
AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS

IN THE MATTER OF:	DOCKET NUMBER:  BC-2003-00874
				INDEX CODE:  110.00
				COUNSEL:  None

				HEARING DESIRED:  No

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APPLICANT REQUESTS THAT:

His under honorable conditions (general) discharge be upgraded to honorable.

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APPLICANT CONTENDS THAT:

He was told his discharge would automatically be upgraded after six months.

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

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STATEMENT OF FACTS:

Applicant enlisted in the Regular Air Force on 14 June 1967 in the grade of airman basic for a period of 4 years.

On 3 January 1968, the applicant received a Letter of Reprimand (LOR) for driving a motor vehicle without possession of a valid driver’s license and operating the vehicle in a manner that was not reasonable or proper for a family housing area.

On 14 February 1969, applicant was notified of his commander’s intent to recommend he be discharged from the Air Force in accordance with AFM 39-12, (misconduct - civil conviction.)

The commander stated the following reason for the proposed discharge:

	On 29 December 1968, the applicant was apprehended by civil authorities for Grand Larceny.  He was tried and found guilty by the District Court of Oklahoma.  He received a one year suspended sentence with probation.

The commander advised applicant of his right to consult legal counsel; present his case to an administrative discharge board; be 
represented by legal counsel at a board hearing; submit statements in his own behalf in addition to, or in lieu of, the board hearing; or waive the above rights after consulting with counsel.

On 17 February 1969, after consulting with counsel, the applicant invoked his right to submit statements in his own behalf.

A Board of Officers convened on 3-4 April 1969 at Clinton Sherman AFB, OK to review the applicant’s case.  The Board recommended the applicant be discharged with a general discharge.

A legal review was conducted on 15 May 1969 which found the findings were substantiated by the evidence of record.  It was recommended the applicant be discharged with a general discharge. 

A resume of applicant's performance reports follows:

		PERIOD ENDING		OVERALL EVALUATION

			 7 Feb 69			5
			 6 Mar 68		    Old System
						Highly recommended for an
						Air Force Career

The discharge authority approved the discharge on 23 May 1969.

Applicant was discharged on 26 May 1969, in the grade of airman first class with a general (under honorable conditions) discharge, in accordance with AFR 39-12 (misconduct - civil conviction.)  He served a total of 2 years, 1 month and 28 days of active service.

Pursuant to the Board’s request, the Federal Bureau of Investigation, Washington, D.C., provided an investigative report which is attached at Exhibit C.
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AIR FORCE EVALUATION:

AFPC/DPPRS states the applicant has not submitted any evidence nor identified any errors or injustices that occurred in the processing of his discharge.  Nor has he provided any facts warranting an upgrade of his discharge.  There are no regulations or directives that allow an automatic upgrade of a discharge within a six months or ever.  Based on the information and evidence provided they recommend the applicant's request be denied (Exhibit D).  

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APPLICANT'S REVIEW OF AIR FORCE EVALUATION:

Copies of the Air Force evaluation and FBI report were forwarded to the applicant on 2 May 2003 and 2 July 2003, for review and 
response.  On 6 June 2003, the Board staff advised the applicant of his right to submit character references.  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 of timely file.

3.	Sufficient relevant evidence has been presented to demonstrate the existence of an error or injustice.  After thoroughly reviewing the evidence of record, we are persuaded that the applicant’s discharge should be upgraded on the basis of clemency.  It appears that prior to any legal action being taken by civilian authorities, the applicant was advised by his section commander that if he received a suspended sentence for the civilian offense of grand larceny for allegedly stripping an automobile, the Air Force would not impose any further punishment.  The applicant’s civilian attorney advised him that he had plea bargained with the District Attorney that if the applicant pled guilty, he would receive a suspended sentence.  Based on that advice, the applicant pled guilty and received a suspended sentence.  However, subsequently, the applicant was advised that discharge action would be initiated against him because of the civilian offense.  While it is not unusual for discharge action to be taken on the basis of a civilian conviction, we believe that the applicant was miscounseled regarding what action the Air Force would take as a result of this action.  We cannot speculate at this late date what might have happened had he not accepted the plea bargain.  And, although we do not condone the applicant’s behavior which led up to the alleged offense, the applicant may have been duped into thinking no further action would be taken against him.  Further, it appears that the applicant had a satisfactory record prior to the incident in question.  We note the only offense on the applicant’s FBI report was in 1967, however, there is no indication of the disposition of that offense, but it does not appear to be related to the grand larceny offense.  It appears that he has had a clean record since that time.  The applicant has had to live with the effects of his discharge for more than 30 years and we believe that it would be an injustice for him to continue to suffer from it effects.  We therefore conclude that his discharge should be upgraded to 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 26 May 1969, he was honorably discharged and furnished an Honorable Discharge certificate.

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The following members of the Board considered AFBCMR Docket Number BC-2003-00874 in Executive Session on 3 September 2003, 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, 8 Apr 03, w/atchs.
   Exhibit B.  Available Master Personnel Records.
   Exhibit C.  FBI Report.
   Exhibit D.  Letter, AFPC/DPPRS, dated 23 Apr 03.
   Exhibit E.  Letter, SAF/MRBR, dated 2 May 03.
   Exhibit F.  Letter, AFBCMR, dated 6 Jun 03.
   Exhibit G.  Letter, AFBCMR, dated 2 Jul 03.

                                   
                                   Panel Chair

AFBCMR BC-2003-00874
INDEX CODE:  110.00

MEMORANDUM FOR THE CHIEF OF STAFF

	Having received and considered the recommendation of the Air Force Board for Correction for 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 XXXXX, be corrected to show that on 26 May 1969, he was honorably discharged and furnished an Honorable Discharge certificate.

					
					Director
					Air Force Review Boards Agency