RECORD OF PROCEEDINGS
AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS

IN THE MATTER OF:	DOCKET NUMBER:  BC-2004-00364
		INDEX CODE:  110.00
		COUNSEL:  NONE

		HEARING DESIRED:  NO

_________________________________________________________________

APPLICANT REQUESTS THAT:

His under other than honorable conditions (UOTHC) discharge be upgraded to honorable.

_________________________________________________________________

APPLICANT CONTENDS THAT:

At the time of his discharge, it was explained to him that if he voluntarily left the service his discharge could be changed and he could receive benefits.  He did not read the discharge.  He signed it based on the explanation he had received.  Had he known he would not have agreed to a dishonorable discharge.  He would have stayed in and fought the discharge action.

The applicant's complete submission, with attachments, is at Exhibit A.

_________________________________________________________________

STATEMENT OF FACTS:

On 16 February 1965, the applicant enlisted in the Regular Air Force (RegAF) as an airman basic (AB) for a period of four years.

On 1 February 1967, the applicant was notified of his commander's intent to recommend him for discharge for unfitness.  The specific reasons for the discharge action are:

	a. On or about 11 December 1965, the applicant committed assault and battery with a dangerous weapon on V. H.  He was tried and convicted on 8 April 1966 of Assault and Battery and Disorderly Conduct.  His punishment consisted of paying fines and 15 days in jail.  The court suspended the jail sentence for one year on the condition the applicant remained on good behavior.

	b. On 10 September 1966, the applicant was apprehended by the South Dakota Highway Patrol for speeding.  For this offense, the applicant appeared in civil court and was ordered to pay a fine.  In addition, the applicant received a Letter of Reprimand (LOR) and was scheduled to attend remedial driver’s training.

	c. On or about 1 November 1966, the applicant failed to report at the prescribed time to his place of duty.  For this misconduct, the applicant received an Article 15 and was ordered to correctional custody at the Base Confinement Facility.

	d. On or about 17 November 1966, the applicant, willfully, unlawfully and with force and violence, did corporal hurt another person.  On 30 November 1966, the applicant was tried and convicted by civil court.  His punishment consisted of 10 days of hard labor in the city jail.  The court suspended the jail sentence for one year on the condition the applicant remained on good behavior.

	e.  On or about 10 January 1967, the applicant was derelict in the performance in his duties in that he fell asleep during his normal duty hours.  For this misconduct, the applicant received an Article 15.

The commander advised the applicant of his right to consult legal counsel and that military legal counsel had been obtained for him; to an administrative discharge board and to submit statements in his own behalf; or waive the above rights after consulting with counsel.

On 1 February 1967, the applicant acknowledged receipt of the notification letter and that military counsel was made available to assist him; and after consulting with counsel, applicant waived his right to submit a statement.

A legal review was conducted on 9 March 1967 in which the staff judge advocate recommended the applicant be discharged with a general discharge with no probation and rehabilitation.

On 28 March 1967, the discharge authority approved the discharge and directed the applicant be discharged with an under other than honorable conditions (undesirable) discharge.

Applicant was discharged on 3 April 1967, in the grade of airman third class with an under other than honorable conditions (undesirable) discharge, in accordance with AFM 39-12, Separation for Unsuitability, Misconduct, Resignation, or Request for Discharge for the Good of the Service and Procedures for the Rehabilitation Program (frequent involvement of a discreditable nature with civil or military authorities).  He served 2 years, 1 month and 18 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.

_________________________________________________________________

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.  Based upon the documentation in the applicant's file, they believe his discharge was consistent with the procedural and substantive requirements of the discharge regulations of that time.  Also, the discharge was within the sound discretion of the discharge authority.  Also, he did not provide any facts to warrant an upgrade of his discharge.  Based on the information and evidence provided they recommend the applicant's request be denied (Exhibit D).  

_________________________________________________________________

APPLICANT'S REVIEW OF AIR FORCE EVALUATION:

The applicant reviewed the Air Force evaluation and states all charges against him were dropped.  He further states the reason he was in trouble was due to his being in a prejudiced environment.

The applicant provided character letters and documentation regarding his workers’ compensation and a copy of his criminal history from the state of South Dakota (Exhibit F).

On 5 May 2004, the Board staff forwarded a copy of the FBI report to the applicant for his review and response (Exhibit G).

_________________________________________________________________

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 an injustice.  We took notice of the applicant's complete submission in judging the merits of the case; however, we agree with the opinions and recommendations of the Air Force and adopt their rationale as the basis for our decision the applicant has failed to sustain his burden that he has suffered either an error or an injustice.  Based on the documentation in the applicant's records, it appears the processing and the characterization of the discharge were appropriate and accomplished in accordance with Air Force policy. 

4.  Although the applicant did not specifically request consideration based on clemency, we also find insufficient evidence to warrant a recommendation the discharge be upgraded on that basis.  The applicant has not provided information of his post-service activities and accomplishments.  Therefore, based on the evidence of record, we cannot conclude that clemency is warranted.

_________________________________________________________________

THE BOARD DETERMINES THAT:

The applicant be notified that the evidence presented did not demonstrate the existence of material 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.

_________________________________________________________________

The following members of the Board considered AFBCMR Docket Number BC-2004-00364 in Executive Session on 22 July 2004 under the provisions of AFI 36-2603:
The following documentary evidence was considered:

    Exhibit A.  DD Form 149, dated 30 Jan 04, w/atchs.
    Exhibit B.  Applicant's Master Personnel Records.
    Exhibit C.  FBI Report.
    Exhibit D.  Letter, HQ AFPC/DPPRS, dated 15 Mar 04.
    Exhibit E.  Letter, SAF/MRBR, dated 19 Mar 04.
    Exhibit F.  Applicant’s Response, dated 30 Apr 04, w/atchs.
    Exhibit G.  Letter, AFBCMR, dated 5 May 04, w/atch.

                                   Panel Chair