RECORD OF PROCEEDINGS
AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS

IN THE MATTER OF:				DOCKET NUMBER:  BC-2004-00064
								INDEX CODE:  110.02
								COUNSEL:  NONE

								HEARING DESIRED:  NO

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APPLICANT REQUESTS THAT:

His undesirable discharge (under other than honorable conditions) be changed to honorable.
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APPLICANT CONTENDS THAT:

He joined the Air Force in October 1961.  He initially entered Basic Training at Lackland, TX, and was later transferred to Amarillo Air Force Base, TX, to complete Basic Training.  He then entered Jet Aircraft Fighter School, and completed fighter school training with a final grade of 87 percent.  He was then transferred to Hill AFB, UT, completed training, obtained his five-level, and received an 80 percent on his Specialty Knowledge Test.

In April 1964, he received Civil Papers to appear in court on the charge of Carnal Knowledge.  His Commanding Officer and First Sergeant tried to arrange a marriage, but he told them he had no intentions on this matter.  He spoke to his lawyer, who advised him “it would be his word against hers in court, and that her word would be accepted first.”  He was informed that Carnal Knowledge carried a sentence of one to five years in prison, and was advised that pleading guilty might result in a lighter sentence, such as probation.  On 5 October 1964, he was sentenced to serve five months in the County Jail, and was given one and one-half years probation.

After he was incarcerated, he hired a new lawyer who was able to obtain information that refuted the accusations against him.  On 1 March 1965, he was released from jail.  He reappeared in court, on 8 March 1965, for imposition of his probation sentence; however, in light of the new information, the judge dropped his probation, and stated that the plea of guilty or conviction as previously entered was thereby set aside and the action was dismissed.

In support of his request, the applicant submits a personal statement, four (4) affidavits, and excerpts from his military personnel records.  The applicant’s submission, with attachments, is at Exhibit A.
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STATEMENT OF FACTS:

The applicant’s military personnel records are incomplete.  The following information was extracted from the remaining documentation, and the Airman Military Record, AF Form 7.

On 9 October 1961, the applicant enlisted in the Regular Air Force at the age of 20 in the grade of airman basic for a period of four years.  He was progressively promoted to the grade of airman second class (E-3), effective and with a date of rank of 1 February 1963.

On 12 June 1963, he received an Article 15, Uniform Code of Military Justice (UCMJ), for being absent from his organization without proper authority.  He was reduced to the grade of airman basic and ordered into correctional custody for 30 days.  The Wing Commander restored his grade to airman second class on 17 September 1963.  On 23 May 1964, he received an Article 15, UCMJ, for failing to go at the time prescribed to his appointed place of duty, and was again reduced to the grade of airman basic.

On 23 September 1964, the applicant’s commander notified the applicant that he was recommending he be discharged from the Air Force under the provisions of Air Force Regulation 39-22 (conviction by a civil court) because of Moral Turpitude involving indecent assault upon a 16-year old female.  The applicant was further advised an undesirable discharge would be recommended.

The applicant acknowledged receipt of the notification and waived his rights to consult counsel, but did submit statements in his own behalf.  The discharge case file was reviewed by the staff judge advocate, and was found legally sufficient.  The discharge authority approved the recommended separation on 16 October 1964, and directed that the applicant be separated with an under other than honorable conditions discharge.  The applicant was separated from the Air Force on 16 October 1964.  He had served on active duty for a period of 2 years, 11 months, and 13 days.

In 1965, applicant applied to the Air Force Board for Correction of Military Records (AFBCMR) for upgrade of his discharge to honorable; and restoration of all his previous rights, grades, skill ratings, and reenlistment privileges.  His application was denied by the Board on 28 April 1965.  A copy of the case file (Docket Number 65-711) is at Exhibit C.

Pursuant to the Board’s request, the Federal Bureau of Investigation (FBI) provided a copy of an investigative report pertaining to the applicant (Identification Record No. 244400S8), which is at Exhibit G.
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AIR FORCE EVALUATION:

HQ AFPC/DPPRS recommends denial.  DPPRS states that the discharge was consistent with the procedural and substantive requirements of the discharge regulation, and that the discharge was within the discretion of the discharge authority.  They conclude that the applicant did not submit any evidence or identify any errors or injustices that occurred in the discharge processing, and that he provided no facts warranting an upgrade of the discharge received (Exhibit D).
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APPLICANT'S REVIEW OF AIR FORCE EVALUATION:

On 13 February 2004, a copy of the Air Force evaluation was forwarded to the applicant for review and comment.  On 17 February 2004, a copy of the Federal Bureau of Investigations (FBI) report was forwarded to the applicant.

On 24 February 2004, the applicant was invited to submit information pertaining to his post-service accomplishments.  As of this date, no response has been received.

In response to the advisory opinion, he submits a statement that reiterates his earlier comments, and a supportive letter from his current supervisor (Exhibit F).

In response to the FBI report, the applicant submits a personal statement, a copy of a Final Discharge order issued by the State of Utah, and an additional personal statement that restates his request, which are at Exhibit H.
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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.  After a thorough review of the evidence of record, we see no evidence to show that the applicant’s discharge was erroneous or unjust.  It appears likely that he has led a stable and productive life and there is no evidence that he has had any subsequent serious involvement of a derogatory nature since his separation from the Air Force.  In light of the above, we believe that it would be an injustice for him to continue to suffer the adverse effects of an undesirable discharge.  Therefore, on the basis of clemency, we believe an upgrade of his discharge to general (under honorable conditions) is warranted.  His request for upgrade to honorable was considered.  As noted in the 1965 legal opinion provided for the Board’s review, there is no indication that the expunging of the record by the State of Utah was intended as a reversal of the conviction or that it shows the applicant would not have been convicted in the first place.  In the absence of documentary evidence by the applicant showing the contrary, in view of the seriousness of the offense that led to his separation and because the available evidence shows that the applicant’s service was not wholly meritorious, it is our opinion that an upgrade to a fully honorable discharge is not warranted.  Accordingly, we recommend that his records be corrected as indicated below.
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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 16 October 1964, he was discharged with service characterized as general (under honorable conditions).
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The following members of the Board considered this application in Executive Session on 11 May 2004, under the provisions of AFI 36-2603:
The following documentary evidence was considered in connection with AFBCMR Docket Number BC-2004-00064.

	Exhibit A.  DD Form 149, with attachments, dated 2 Jan 04.
	Exhibit B.  Applicant’s Master Personnel Records.
	Exhibit C.  SAFCB 65-711, with attachments.
	Exhibit D.  Letter, HQ AFPC/DPPRS, 9 Feb 04.
	Exhibit E.  Letter, SAF/MRBR, dated 13 Feb 04; and, 
Letters, AFBCMR, dated 24 Feb and 17 Mar 2004.
	Exhibit F.  Applicant’s Rebuttal, undated, with attachments.
	Exhibit G.  FBI Identification Record No. 244400S8.
	Exhibit H.  Applicant’s Letter, undated, with attachments.

	Panel Chair

AFBCMR BC-2004-00064

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 APPLICANT be corrected to show that on 16 October 1964, he was discharged with service characterized as general (under honorable conditions).

                                                                            
                                                                            Director
                                                                            Air Force Review Boards Agency