RECORD OF PROCEEDINGS
AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS

IN THE MATTER OF:	DOCKET NUMBER:  BC-2003-01700
		INDEX CODE:  110.00

		COUNSEL: 

		HEARING DESIRED:  NO

_________________________________________________________________

APPLICANT REQUESTS THAT:

His narrative reason for separation be changed.

_________________________________________________________________

APPLICANT CONTENDS THAT:

He desires his narrative reason for separation be corrected to show he was discharged for fraudulent entry into the military service and not for misconduct - homosexual actions.

In support of his appeal, the applicant provided an excerpt of his Air Force Discharge Review Board (AFDRB) Brief, undated.

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

_________________________________________________________________

STATEMENT OF FACTS:

On 11 November 1946, prior to the applicant’s enlistment he was convicted by the State of Michigan for unarmed robbery.  He was placed on probation for two years, probation to be terminated 7 November 1947.

The applicant enlisted in the United States Army on 23 July 1947 in the grade of private.

After an investigation by the Adjutant General, consisting of a report from the State of Michigan, his commander recommended he be discharged for fraudulent entry based on his felony conviction and subsequent probation.

On 9 January 1948 the Adjutant General indicated that the applicant’s enlistment record shows that at the time of enlistment he denied having been convicted by a civil court, of a felony or any offense and also denied having ever been imprisoned under sentence of a civil court.

On 20 January 1948 the applicant indicated in a written statement that prior to entering the Air Force he was arrested on or about 11 March 1946 in Detroit for robbery and in March 1947 for stealing a case of wine from a drug store.

In June 1948 the commander of the XXXX Air Force Base Unit, Mather Air Force Base, California, indicated that the applicant was adjudged guilty of robbery, unarmed, 11 November 1946, which is a felony under the laws of the State of Michigan; he was put on probation by the Circuit Court of Wayne County, Michigan, which probation terminated 7 November 1947.  The applicant enlisted 23 July 1947 at Dearborn, Michigan and, so far as the records, which were available, showed, without having disclosed his past record.  The commander further indicated that the juvenile authorities waived jurisdiction and the proceedings were in the Circuit Court, and under the laws of Michigan the applicant would be considered as having a criminal record.

On 9 June 1948 the applicant received an undesirable discharge in the grade of private, under the provisions of AR 615-366 (Conviction by a Civil Court).  He served a total of 10 months and 17 days total active service with 14 days lost time.

On 18 July 1979, the Air Force Discharge Review Board (AFDRB) considered and granted the applicant’s request to upgrade his undesirable discharge to general (under honorable conditions).  The AFDRB concluded that the discharge was consistent with the procedural and substantive requirements of the discharge regulation and was within the sound discretion of the discharge authority.  The Board further concluded that the applicant’s discharge should be changed to general under the provisions of AFR 39-12, chapter 2, section D and he was issued a new DD Form 214 - Report of Separation From Active Duty.

EXAMINER’S NOTE: The AFDRB Hearing Record indicates that the applicant should receive a general discharge.  They indicate on AFHQ Form 0-2077, page one, that the provisions of the discharge is AFR 39-12, Chapter Two, Section B which indicates discharge for misconduct, homosexual acts - waiver of Board Hearing and on page two of the same form they indicate the provisions of the discharge to be AFR 39-12, Chapter Two, Section D which indicates discharge for misconduct because of fraudulent enlistment.  The DD Form 214 indicates the reason for discharge to be “Involuntary Discharge, Misconduct, Homosexual Acts - Waiver of Board Hearing.”  It appears there was a typographical error between what the Board concluded and what the DD Form 214 indicates.

_________________________________________________________________

AIR FORCE EVALUATION:

AFPC/DPPRS indicated that based upon the documentation in the file, they believe the discharge was consistent with the procedural and substantive requirements of the discharge regulation.  Additionally, the discharge was within the discretion of the discharge authority.  The AFDRB upgraded the applicant’s discharge and he was issued a new DD Form 214.  However, they believe the authority and narrative reason used are incorrect.  It reads authority as “AFM 39-12” and narrative reason as “Involuntary Discharge, Misconduct, Homosexual Acts, Waiver of Board Hearing” with a separation program designator (SPD) code “HKC.”

If the AFBCMR grants relief, they recommend the applicant be issued a new DD Form 214 and change the authority to AFI 36-3208, Administrative Separation of Airmen, and narrative reason for discharge to “Fraudulent Entry into Military Service” with SPD code “JDA”.  Under current policy, if a member is separated for fraudulent entry, they are not credited with time served.  He has not filed a timely request.

The evaluation is at Exhibit C.

_________________________________________________________________

APPLICANT'S REVIEW OF AIR FORCE EVALUATION:

On 27 June 2003, a copy of the Air Force evaluation was forwarded to the applicant for review and response within 30 days.  As of this date, no response has been received by this office.

_________________________________________________________________

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.	Sufficient relevant evidence has been presented to demonstrate the existence of an error or injustice.  The applicant was discharged in 1948 with an undesirable discharge for fraudulent entry into the military for failing to disclose his civil court conviction prior to entry on active duty.  On 18 July 1979, the Air Force Discharge Review Board (AFDRB) upgraded his discharge to general (under honorable conditions) on the basis of his entire record and his testimony.  The AFDRB found the applicant was immature, inarticulate, uneducated, with very low aptitude scores and therefore, concluded that a general discharge was more appropriate.  However, apparently when the new DD Form 214 was issued, as a result of a typographical error on the AFDRB Hearing Record, the narrative reason for his discharge was listed as Misconduct for Homosexual Acts.  Clearly this was an unfortunate error that has only just now been discovered.  Therefore, equity dictates that his records be corrected; however, if the narrative reason for discharge indicates fraudulent reasons, it is very likely that he would not be credited for the time he served and this could be detrimental to the applicant.  Therefore, to remove any possibility of an injustice to the applicant, we believe that his records should be corrected to show that the narrative reason for his discharge was for convenience of the government and this we so recommend.

_________________________________________________________________

THE BOARD RECOMMENDS THAT:

The pertinent military records of the Department of the Air Force relating to APPLICANT, be corrected to show that on 9 June 1948, he was discharged under the provisions of AR 615-365 with a general discharge for convenience of the government.

_________________________________________________________________

The following members of the Board considered AFBCMR Docket Number BC-2003-01700 in Executive Session on 21 August 2003, under the provisions of AFI 36-2603:

All members voted to correct the records, as recommended.  The following documentary evidence was considered:

   Exhibit A.  DD Form 149, dated 5 February 2003, w/atchs.
   Exhibit B.  Applicant's Master Personnel Records.
   Exhibit C.  Letter, AFPC/DPPRS, dated 23 June 2003.
   Exhibit D.  Letter, SAF/MRBR, dated 27 June 2003.

				Panel Chair

AFBCMR BC-2003-01700

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    , be corrected to show that on 9 June 1948, he was discharged under the provisions of AR 615-365 with a general discharge for convenience of the government.

		Director
		Air Force Review Boards Agency