RECORD OF PROCEEDINGS
AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS

IN THE MATTER OF:				DOCKET NUMBER:  BC-2003-02035
INDEX CODE:  110.02
	XXXXXXXXXXXXXXXXXXXXXXX		COUNSEL: XXXXXXXXX

	XXXXXXXXXXXXXXXXX				HEARING DESIRED:  YES

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APPLICANT REQUESTS THAT: 

His undesirable discharge be upgraded to honorable.

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APPLICANT CONTENDS THAT:

He was immature and ignorant of his rights and the effect that an undesirable discharge would have on his life.  The Air Force denied him basic due process when they discharged him.  He was not permitted to attend a hearing, or to present evidence to dispute or mitigate the allegations made against him.  He was not provided legal counsel to represent him, nor was he provided the opportunity to testify or call witnesses in his behalf.  His recruiter informed him that that his juvenile record of joyriding was not significant enough to prevent him from joining the Air Force.  It was never his intention to deceive the Air Force in regards to his past record.  His ability to serve in the Air Force was impaired by his deprived background.  His parents were divorced and he only had a tenth grade education.  The punitive discharge he received was excessively severe when compared to today’s standards. 

In support of his application, he provides copies of his military service records and an affidavit.  A copy of the applicant’s complete submission, with attachments, is at Exhibit A.

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STATEMENT OF FACTS:

The applicant enlisted in the Regular Air Force on 29 October 1954 at the age of 17 for a period of four years in the grade of Airman Basic (E-1).  Action was initiated on 11 January 1955 to separate the applicant when it was discovered he denied having a police record upon his enlistment.  On 1 February 1955, the applicant was tried by a Summary Court-Martial for being absent without leave (AWOL) from on or about 28 January 1955 until on or about 31 January 1955.  He was found guilty and sentenced to confinement at hard labor for 30 days and forfeiture of $50.  The remaining unserved portion of his confinement was remitted when the applicant was separated effective 17 February 1955 with an undesirable discharge under the provisions of AFR 39-21 (Fraudulent Entry).  The applicant had served 3 months and 16 days on active duty.  His time lost was three 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 G.

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AIR FORCE EVALUATION:

AFPC/DPPRS states that due to the lack of documentation to support the applicant’s discharge process, his young age at the time, and considering the incident occurred over 45 years ago, they would not be opposed to the Board granting an upgrade to a general (under honorable conditions) discharge if a search of the FBI files does not reveal and subsequent convictions.  The DPPRS evaluation is at Exhibit C.

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APPLICANT'S REVIEW OF AIR FORCE EVALUATION:

The applicant was given the opportunity to submit comments about his post service activities (see Exhibit E).  He replied through his attorney with numerous letter of recommendation and copies of his Private Investigator Licenses for the years 1982, 1983, and 1999.  His reply is at Exhibit F.

With respect to his FBI report, the applicant submitted a statement through his attorney objecting to its use for the Board’s consideration (Exhibit I).  The reason for his objection is that his juvenile records, which are contained in Items 1, 2 and 3 of the FBI report, have been sealed by the 14 March 1980 Order of the Superior Court of the State of California in and for the County of Alameda in Session as a Juvenile Court.  In addition, Items 4, 5, and 6 were sealed by an Order of the United States District Court for the District of Nevada, which was filed on 27 February 1985.  Under Nevada law, an individual is permitted to answer that he has not been convicted of a crime when the Court records are sealed by Court Order.  Items 1, 2, and 3 of the FBI report were for juvenile offenses, for which he was arrested at the age of 20 years. Of the three offenses, he was only charged with petty larceny and sentenced to ten days confinement on 2 April 1958.  With regard to Items 4, 5, and 6 of the FBI report, these charges were dismissed.  

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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.  Sufficient relevant evidence has been presented to demonstrate the existence of probable injustice.  After a thorough review of the evidence of record, we see no evidence to show that the applicant’s discharge was erroneous or unjust.  Nevertheless, after reviewing the applicant’s submission, we are of the opinion that the applicant has provided sufficient evidence to lead us to conclude that in the years following his separation, he has made a successful adjustment to civilian life.  This is evident by his involvement and service to his community by serving as a Private Investigator in the State of Nevada.  We note the recommendation from the Air Force in regard to upgrading the applicant’s discharge to general (under honorable conditions).  However, in view of the applicant’s post service record and consideration of his age and immaturity at the time of his discharge, we believe that a fully honorable discharge is warranted and the reason for separation should be changed to convenience of the government.  Therefore, we recommend that his records be corrected as indicated below.

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THE BOARD DETERMINES THAT:

The pertinent military records of the Department of the Air Force relating to APPLICANT be corrected to show that on 17 February 1955, he was honorably discharged under the provisions of AFR 39‑14 for the “Convenience of the Government,” rather than under the provisions of AFR 39-21, and was furnished an Honorable Discharge certificate.

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The following members of the Board considered this application in Executive Session on 6 November 2003, under the provisions of AFI 36‑2603:

The following documentary evidence for AFBCMR Docket Number BC-2003-02035 was considered:

     Exhibit A.  DD Form 149, dated 10 Jun,03 w/atchs.
     Exhibit B.  Applicant's Master Personnel Records.
     Exhibit C.  Letter, AFPC/DPPRS, dated 11 Jul 03.
     Exhibit D.  Letter, SAF/MRBR, dated 18 Jul 03.
     Exhibit E.  Letter, AFBCMR, dated 14 Aug 03.
     Exhibit F.  Applicant’s Rebuttal, dated 28 Aug 03
     Exhibit G.  FBI Report 979122A, dated 12 Sep 03.
     Exhibit H.  Letter, AFBCMR, dated 24 Sep 03.
     Exhibit I.  Applicant’s Rebuttal to FBI Rpt, dtd 8 Oct 03

AFBCMR BC-2003-02035

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 17 February 1955, he was honorably discharged under the provisions of AFR 39‑14 for the “Convenience of the Government,” rather than under the provisions of AFR 39-21, and was furnished an Honorable Discharge certificate.