RECORD OF PROCEEDINGS
AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS

IN THE MATTER OF:	DOCKET NUMBER:  BC-2003-03753
		INDEX CODE:  110.00

		COUNSEL:  THE AMERICAN LEGION

		HEARING DESIRED:  NO

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APPLICANT REQUESTS THAT:

His under other than honorable conditions discharge be upgraded to general (under honorable conditions) at a minimum.

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APPLICANT CONTENDS THAT:

A review of his service records will show the punishment he received was not consistent with the alleged offense (possession, use and sale of marijuana).  Air Force legal personnel used fear to force him not to fight the charges.

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 4 August 1966 for a period of four years.

On 16 September 1969, after consulting with counsel, the applicant requested to be discharged from the Air Force for the good of the service and issued a general (under honorable conditions) discharge.  He indicated due to the allegation present in his case, he felt his commitment to the service was in jeopardy.  Although he had not yet been convicted of any crime, the statements made against him were intolerable.  The Staff Judge Advocate indicated the applicant’s request for discharge statement was his (applicant’s) decision, signed by him after he was fully counseled and advised of his rights and privileges.

On 18 September 1969, the squadron commander recommended the applicant’s request for discharge be approved for the following reasons:  possession, use and sale of marijuana, a violation of Article 134, Uniform Code of Military Justice and that he be furnished an undesirable discharge.

The commander indicated in his recommendation for discharge that the applicant was not considered a good rehabilitation risk, and it was deemed best the applicant be eliminated from the service.

On 30 September 1969, the discharge authority approved an undesirable discharge.

Applicant was discharged on 3 October 1969, in the grade of sergeant, under the provisions of AFM 39-12 (For the Good of the Service) with an under other than honorable conditions (UOTHC) discharge.  He served three years and two months total active service.

Pursuant to the Board’s request, the Federal Bureau of Investigation, Clarksburg, West Virginia, provided an Investigative Report, which is attached at Exhibit C.

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AIR FORCE EVALUATION:

AFPC/DPPRSP recommended clemency.  They 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 applicant did not submit any new evidence or identify any errors or injustices that occurred in the discharge processing.  Considering the discharge occurred over 34 years ago and the type of offense leading to his discharge, they would not be opposed to upgrading his discharge to general (under honorable conditions) if a search of the FBI files reveals no convictions.  He has not filed a timely request 

The evaluation is at Exhibit C.

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APPLICANT'S REVIEW OF AIR FORCE EVALUATION:

On 19 December 2003, a copy of the Air Force evaluation was forwarded to the applicant and counsel for review and response within 30 days.  As of this date, no response has been received by this office.

On 16 January 2004, the Board staff requested the applicant provide post-service documentation and provided him the opportunity to respond to the FBI report within 14 days.  As of this date, no response has been received by this office (Exhibit F).

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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 an error or injustice warranting an upgrade of the applicant’s discharge.  The applicant has failed to demonstrate that the commander exceeded his authority or that the reason for the discharge was inaccurate or unwarranted.  The Board believes that responsible officials applied appropriate standards in effecting the separation, and the Board does not find persuasive evidence that pertinent regulations were violated or that applicant was not afforded all the rights to which entitled at the time of discharge.  The Air Force, in their 26 November 2003, advisory indicates since the discharge occurred over 34 years and considering the type of offense leading to his discharge, they would not be opposed to upgrading the applicant’s discharge to under honorable conditions (general), based on clemency, if a search of the FBI files reveals no convictions.  However, we note that the FBI report indicates that the applicant has apparently committed further misconduct subsequent to his discharge.  In view of the foregoing, we are not persuaded that an upgrade of the applicant’s discharge on the basis of clemency is warranted in this case.  Therefore, favorable action on this appeal is not recommended.

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THE BOARD DETERMINES THAT:

The applicant be notified that the evidence presented did not demonstrate the existence of an 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 AFBCMR Docket Number BC-2003-03753 in Executive Session on 24 February 2004, under the provisions of AFI 36-2603:

The following documentary evidence was considered:

   Exhibit A.  DD Form 149, dated 31 October 2003, w/atchs.
   Exhibit B.  Applicant's Master Personnel Records.
   Exhibit C.  FBI Investigation.
   Exhibit D.  Letter, AFPC/DPPRSP, dated 26 November 2003.
   Exhibit E.  Letters, SAF/MRBR, dated 19 December 2003.
   Exhibit F.  Letter, AFBCMR, dated 16 January 2004, w/atch.