RECORD OF PROCEEDINGS
AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS

IN THE MATTER OF:	DOCKET NUMBER:  BC-2004-00718
		INDEX CODE:  110.00

		COUNSEL:  NONE

		HEARING DESIRED:  NO

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APPLICANT REQUESTS THAT:

His under other than honorable conditions (UOTHC) discharge be upgraded to a general (under honorable conditions) or an honorable discharge.

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APPLICANT CONTENDS THAT:

He completed a full term of service in the Air Force.  He was convicted of a crime he did not commit and subsequently served 17 years in prison.  Medical records from Keesler AFB indicate he was treated for stress and depression, which culminated as a stroke in April 2003, four months prior to his release from prison.  Since his release in August 2003, he has received no treatment or assistance from the Veterans Hospital due to the type of discharge he received.  He indicates he completed his term in the Air Force prior to being incarcerated for 17 years; therefore, receiving no veteran benefits, especially medical assistance with his stroke, is an injustice.

Applicant’s complete submission is at Exhibit A.

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STATEMENT OF FACTS:

The applicant enlisted in the Regular Air Force on 20 January 1983 in the grade of airman basic for a period of four (4) years.

On 4 April 1986, the applicant was notified of his commander's intent to initiate discharge action against him for a civil conviction.  Specifically, on 18 March 1986, the applicant was convicted in the First Judicial District of the Circuit Court of Harrison County, Mississippi, for burglary of an occupied dwelling in the nighttime while armed with a deadly weapon.  As a result of his conviction, he was sentenced by the court to serve a term of 20 years in the custody of the Mississippi Department of Corrections.

The commander indicated in her recommendation for discharge action that before recommending the discharge the applicant was arrested by the Gulfport, Mississippi Police Department on 3 July 1985, for alleged burglary, attempted rape, and burglary with a deadly weapon (.22 cal derringer).  On 18 March 1986, the applicant was found guilty of the offense of burglary of an occupied dwelling in the nighttime armed with a deadly weapon.  The commander further indicated she did not recommend probation and rehabilitation according to AFR 39-10, Chapter 7.  The applicant through his actions had brought discredit upon himself and the service.

The commander advised the applicant of his right to consult legal counsel, to present his case before an administrative discharge board, and submit statements in his own behalf; or waive the above rights after consulting with counsel.

On 15 May 1986, after consulting with counsel, the applicant requested an Administrative Discharge Board (ADB) hearing and submitted statements in his own behalf.

On 20 May 1986, the applicant was notified of the convening of an Administrative Discharge Board hearing.

On 29 May 1986, an ADB convened and determined the applicant should be discharged for a civilian conviction pursuant to AFR 39-10, Chapter 5, Section H, paragraph 5-48, with an under other than honorable conditions (UOTHC) discharge without probation and rehabilitation.

On 10 June 1986, the Staff Judge Advocate indicated he concurred with the board’s recommendation and recommended to the discharge authority that the findings of the ADB be approved as well as the applicant’s discharge with an under other than honorable conditions characterization, without probation and rehabilitation, but that the discharge authority withhold execution of the discharge until the outcome of the civil conviction appeal was certain.

On 17 June 1986, the discharge authority approved the applicant’s under other than honorable conditions discharge without probation and rehabilitation; however, execution of the discharge was suspended pending final outcome of the applicant’s appeal of the civil conviction.

Applicant was discharged on 29 April 1987, in the grade of airman first class with an under other than honorable conditions (UOTHC) discharge, under the provisions of AFR 39-10 (Misconduct - Civil Conviction).  He served four years and six days of total active military service.

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AIR FORCE EVALUATION:

AFPC/DPPRS recommended denial.  They indicated based on the documentation on file, the discharge was consistent with the procedural and substantive requirements of the discharge regulation.  The discharge was within the discretion of the discharge authority.  The applicant did not submit any evidence or identify any errors of injustices, which occurred in the discharge processing.  He provided no facts warranting an upgrade of the discharge received.

The evaluation is at Exhibit C.

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APPLICANT'S REVIEW OF AIR FORCE EVALUATION:

On 9 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, no response has been received by this office.

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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.  After thoroughly reviewing the evidence of record, we find no evidence to show the applicant’s discharge as a result of his civil conviction was erroneous or unjust.  While the applicant believes his UOTHC discharge should be upgraded, we note the commander determined the UOTHC discharge was an appropriate consequence that accurately described the applicant’s military service and the actions for which he was found guilty and the convening authority approved the UOTHC discharge.  The Board notes the applicant has provided no evidence to support his request to upgrade the discharge.  In view of the foregoing we agree with the opinion and recommendation of the Air Force and adopt their rationale expressed as the basis for our decision that the applicant has failed to sustain his burden that he has suffered either an error or an injustice.  Therefore, based on the evidence of record, we find no compelling basis to recommend granting the relief sought.

4.	Although the applicant did not specifically request consideration based on clemency, we also find insufficient evidence to warrant a recommendation that the discharge be upgraded on that basis.

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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 an 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-2004-00718 in Executive Session on 2 June 2004, under the provisions of AFI 36-2603:

The following documentary evidence was considered:

   Exhibit A.  DD Form 149, dated 21 March 2004.
   Exhibit B.  Applicant's Master Personnel Records.
   Exhibit C.  Letter, AFPC/DPPRS, dated 2 April 2004.
   Exhibit D.  Letter, SAF/MRBR, dated 9 April 2004.