RECORD OF PROCEEDINGS
         AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS

IN THE MATTER OF:	DOCKET NUMBER:  BC-2004-00652
		INDEX CODE:  110.00

		COUNSEL:  
		HEARING DESIRED:  NO

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APPLICANT REQUESTS THAT:

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

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APPLICANT CONTENDS THAT:

He always felt that being discharged because of a petty theft charge was rather unjust.  Also, he did not have any other offenses against him.  He realizes that he waited a long time to request an upgrade on this discharge, but he felt there was nothing that interfered with him finding a good job.  He kept everything in perspective.  He has been living a good Christian life with his family and kept a good clean record through the years after the military.  He does not regret that he got the undesirable discharge.  He promised his dad that before he died he would try to get the matter changed.

Applicant did not submit any documents in support of the appeal.  Applicant's complete submission is at Exhibit A.

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STATEMENT OF FACTS:

Applicant enlisted in the Regular Air Force on 13 September 1956 in the grade of airman basic for a period of four years.  He was progressively promoted to the grade of airman third class (A/3C) on 5 December 1956.  He received two Airman Performance Reports (APRs) closing 16 October 1956 and 10 December 1956, in which the overall evaluations were “excellent.”

The applicant’s discharge case file has been lost or destroyed.  However, information extracted from the Air Force Discharge Review Board (AFDRB) Examiner’s Brief prepared on 13 June 1958, when the file was a part of his master personnel records, indicates that, on 7 October 1957, the applicant’s Squadron Commander recommended he be discharged from the Air Force under the provisions of AFR 39-22 for civil court conviction.  Specifically, the applicant was found guilty of misdemeanor theft and fined $25.00 and sentenced to five days’ imprisonment in the county jail.

On 16 August 1957, the applicant did unlawfully take one hub cap valued at $6.00 without the owner’s consent.  The case was called to trial on 18 September 1957.  Defendant waived trail by jury and submitted decision to court.  Defendant pleaded guilty to this accusation the court assessed his punishment at a $25.00 fine and imprisonment in the county jail for five days.

On 3 October 1957, the Criminal District Attorney advised that the maximum punishment for misdemeanor theft under the Penal Code of Texas was imprisonment in the county jail for a period not to exceed two years and a fine not to exceed $500.00.

On 18 October 1957, the applicant was discharged with an undesirable discharge.  He served one year and one month on active duty.  He had a total of 17 days’ lost time.

The Air Force Discharge Review Board (AFDRB) denied applicant’s request for an upgrade of discharge on 18 June 1958.  A copy of the AFDRB hearing record is attached at Exhibit B.

Pursuant to the Board’s request, the Federal Bureau of Investigation, Clarksburg, West Virginia, indicated on the basis of the data furnished they were unable to locate an arrest record (Exhibit C).

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AIR FORCE EVALUATION:

AFPC/DPPRS states 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 sound discretion of the discharge authority.  Therefore, they recommend denial of applicant’s request.

A complete copy of the evaluation is at Exhibit D.

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APPLICANT'S REVIEW OF AIR FORCE EVALUATION:

On 2 April 2004, a copy of the Air Force evaluation was forwarded to the applicant for review and response within 30 days.  As of this date, this office has received no response.

On 22 April 2004, the Board staff requested the applicant provide post-service documentation within 30 days (Exhibit E).  As of this date, this office has received no response.

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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.  Although no evidence has been provided which would lead us to believe the applicant’s discharge was improper at the time it was effected, we believe evidence supports a recommendation for partial relief based on clemency.  Prior to the incident that led to the applicant’s separation, he served honorably for a period of approximately 11 months.  While not condoning the applicant’s misconduct, we believe under current standards, an undesirable discharge is excessively harsh.  In addition, it has been more than 45 years since the applicant’s separation and it appears likely, based on the negative FBI report, that the applicant has made a good post-service adjustment.  We therefore believe his discharge should be characterized as “under honorable conditions.”  We are not inclined to recommend the discharge be upgraded to fully honorable based on the short period of time the applicant actually served and in the absence of any documentary evidence from him pertaining to his post-service activities.

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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 18 October 1957, 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 23 June 2004, under the provisions of AFI 36-2603:

All members voted to correct the records pertaining to BC-2004-00652, as recommended.  The following documentary evidence was considered:

   Exhibit A.  DD Form 149, dated 18 Feb 04, w/atch.
   Exhibit B.  Applicant's Master Personnel Records.

   Exhibit C.  FBI Report.
   Exhibit D.  Letter, AFPC/DPPRS, dated 31 Mar 04.
   Exhibit E.  Letter, AFBCMR, dated 22 Apr 04.
   Exhibit F.  Letter, SAF/MRBR, dated 2 Apr 04.

                                   

AFBCMR BC-2004-00652

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 1 October 1957, he was discharged with service characterized as general (under honorable conditions).

		

MEMORANDUM FOR THE EXECUTIVE DIRECTOR, AIR FORCE BOARD FOR 
				   CORRECTION OF MILITARY RECORDS (AFBCMR)

FROM:  SAF/MRB

SUBJECT:  , AFBCMR Docket Number BC-2004-00652

	I have carefully considered all aspects of this case and agree with the AFBCMR panel that the applicant’s discharge should be upgraded.  Because of the reasons set forth hereinafter, however, I believe his discharge should be upgraded to honorable.

	The applicant was discharged on 18 October 1957, under the provisions of AFR 39-22 for civil court conviction, with an under other than honorable conditions (UOTHC) discharge after serving one year and one month on active duty.  He had received two performance reports with overall evaluations of excellent, and except for the misdemeanor conviction, had no other derogatory information on file.  The applicant was 18 years old when he pled guilty in civil court for the theft of one hubcap valued at $6.00.  He received a $25.00 fine and was imprisoned for five days.  However, the Criminal District Attorney advised Air Force officials that the maximum punishment for this misdemeanor under the Penal Code of Texas was imprisonment in the county jail for a period not to exceed two years and a fine not to exceed $600.00.  Conviction of an offense that carried a penalty of more than one year automatically forced the commander to recommend discharge under AFR 39-22 with an undesirable discharge at the time.

	On 17 March 1959, AFR 39-22 was changed to permit commanders to recommend honorable discharges.  The AFR in question, stated, among other things, that where an airman has served faithfully and performed to the best of his ability, and has been cooperative and conscientious in doing his assigned tasks, he may be furnished an honorable discharge.

	Certainly, I do not condone the behavior that led to his under other than honorable conditions discharge.  Nevertheless, considering all the circumstances of this case (i.e., excellent duty performance, nature of offense committed (petty theft) change in policy regarding characterization of these discharges, no involvement with law enforcement officials since discharge and the length of time he has been stigmatized by his discharge), I believe it would be an injustice for him to continue to suffer the adverse effects of the under other than honorable conditions discharge he received over 45 years ago.  Therefore, it is my decision that his discharge be upgraded to fully honorable on the basis of clemency.

					

AFBCMR BC-2004-00938

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 18 October 1957, he was honorably discharged and furnished an Honorable Discharge certificate.