RECORD OF PROCEEDINGS
AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS

IN THE MATTER OF:	DOCKET NUMBER:  BC-2005-00178
		INDEX CODE 106.00
	 	COUNSEL:  None

	 	HEARING DESIRED:  No

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APPLICANT REQUESTS THAT:

His 1954 general [formerly undesirable] discharge be upgraded to honorable and that his offenses be expunged from his record.

[Note:  The applicant mentions a spinal injury incurred while in the Air Force but does not indicate what he wants in relation to this, i.e., medical discharge, etc.] 

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APPLICANT CONTENDS THAT:

He was guilty of numerous petty offenses and feels that, after 50 years as a good citizen, his discharge should be upgraded to fully honorable and his record expunged.  He ran away from home when he was 14½, and has suffered great public humiliation, injustice, and prejudice for many years.  He has no criminal record, has been married for 47½ years, and has raised two creditable children.  The biggest mistake he made was associating with the wrong company when he joined the Air Force.  Further, he injured his lower back at the gym at Shaw AFB, SC, in Jun 52.  After numerous x-rays, he was never informed of the results.  In Mar 03, the Department of Veterans Affairs (DVA) informed him he had, indeed, fractured his spine.

The applicant provides, among other documents, a DD Form 257AF certificate reflecting he was discharged under honorable conditions (general) on 22 Sep 54.  His complete submission, with attachments, is at Exhibit A. 

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STATEMENT OF FACTS:

The applicant enlisted for four years in the Regular Air Force on 13 Mar 52.  His enlistment physical, on 19 Mar 52, reported his spine as normal.  After basic training, he was promoted to airman third class on 2 May 52 and, on 21 May 52, was assigned to the 66th Supply Squadron at Shaw AFB, SC, as a stock records clerk.

A 2 Jun 52 outpatient service entry reports x-rays were taken of the lumbar spine.  The applicant had apparently complained of a history of generalized joint pain with no definite disease pattern.  The applicant’s generalized complaints continued, although x-rays on 20 Jun 52 were reported as normal.  He was referred to physiotherapy on 24 Oct 52.  

On 3 Feb 53, he was disorderly in his quarters and a Summary Court-Martial restricted him to the base for two months.  On 15 Feb 53, he broke restriction and was apprehended in NC for speeding and suspicion of stealing a car.  He was cleared of the car stealing charge and returned to Shaw AFB.  A Summary Court-Martial sentenced him to confinement at hard labor for 30 days, forfeiture of $55.00, and reduction from airman third class to airman basic.  

A 9 Jun 53 medical entry reports the applicant had complained of backache and given a history of “service back pain 4 yrs ago after jumping 8ft.”  [Note:  Unless the number of years indicated is in error, this appears to place the injury’s occurrence before the applicant’s  enlistment.]  The medical entry revealed the  “x-ray back in June” showed fractures at the L-5 area of the spine.  Further x-ray study was ordered.  He was referred to Ft Jackson and, following that visit, was placed on a limited activity profile on 28 Jan 53.

The applicant’s squadron subsequently departed for Sembach, Germany.  On 31 Aug 53, the applicant failed to report for scheduled guard duty, was apprehended at the Manhattan Club in Sembach, Germany, and was charged for being drunk and disorderly in a public place in uniform.  A Summary Court-Martial sentenced him to confinement at hard labor for one month, forfeiture of $60.00, and reduction to airman basic.

Upon return to duty, he was counseled by the squadron commander, whereupon it was discovered he had a difficult and unhappy childhood.  In order to assist his rehabilitation, the applicant requested and was granted a different job and barracks room assignment.  He was cautioned regarding his association with certain members of the organization who had committed repeated petty offenses.

On 13 Nov 53, a commander-requested psychiatric evaluation was performed.  The report gives a description of the applicant’s family background, and confirms he discontinued his education while in the 11th grade; however, he had obtained a high school equivalent while in the service.  The prior incidents were drinking related.  The applicant contended he never drank until joining the service and had been drinking heavily recently to “forget and be happy.”  The applicant was found to be unable to maintain emotional equilibrium and independence under stress because of his profound feelings of insecurity and inferiority.  
However, he had no physical or mental problem warranting disability processing.  A sincere attempt at rehabilitation was recommended.

On 10 Dec 53, the applicant was promoted to airman third class.

On 29 Jan 54, the applicant and another enlisted member entered the mess hall in a drunken, disheveled and disorderly manner.  Both were apprehended by the Air Police and it was discovered the applicant had failed to report for guard duty.  The applicant was punished by Article 15 with two weeks of extra duty.

On 21 Mar 54, he was apprehended for being drunk and out of uniform at Mary’s Inn at Nehiligen, Germany.

On 27 Apr 54, a commander-requested medical evaluation was conducted with regard to possible administrative discharge.  The applicant stated he was mentally upset, had insomnia, nightmares and tension.  The evaluation indicated the applicant had run away from a dysfunctional family when he was 14.  The evaluation concluded there was no need for medical disposition and that administrative discharge was justifiable.

On 19 May 54, the applicant was reduced via Article 15 from airman third class to airman basic for assaulting an enlisted member at the Coffee Shop in Sembach, Germany, on 5 May 54, while intoxicated.  

Statements from various supervisors reflect the applicant’s inability to adapt to any work environment, lack of initiative and unprofessional appearance.  On 6 Jul 54, the squadron commander provided the group commander with a list of the applicant’s offenses as the basis for discharging him for unfitness despite repeated efforts at rehabilitation.  The group and wing commanders concurred.  The discharge authority approved the separation under the provision of AFR 39-17, Discharge of Airmen Because of Unfitness, and directed the applicant be issued an undesirable discharge certificate.

The applicant was admitted to the hospital on 9 Jul 54 for continuous right upper quadrant abdominal pain since Nov 53.  At that time appendicitis was suspected; however, tests were normal.  He was treated for a possible ulcer, possibly related to Geardia Lamblia infestation and discharged from the hospital on 18 Aug 54.

The applicant’s separation physical, on 20 Sep 54, reported his spine as normal and that he was worldwide qualified.  On 22 Sep 54, he was discharged in the grade of airman basic after two years, four months, and nine days of active service.

A VA Form 07-3101, Request for Information, from the San Francisco VA Regional Office, dated 23 Jun 67, noted the applicant’s DD Form 214 showed his discharge was undesirable, but his photocopy of DD Form 214 showed his discharge for the same period of service to be under honorable conditions (general).  The VA Regional Office requested verification.  A hand-written comment on the form, presumably by the San Francisco Administrative Division [Received Seal dated 27 Jul 67], indicated the “Discharge was reviewed and changed to Under Honorable Conditions on Jun 1, 1967”.  [Note:  The DD Form 214 currently in the applicant’s military personnel records reflects a general characterization of service.]

A 15 Mar 03 DVA decision granted the applicant a 10% rating for service connection L-5 spine fracture.  Evaluation revealed that the applicant suffered from slight limited range of motion of the lumbar spine.  X-rays indicated mild spondylolisthesis at the L5/S1 level.  Diagnosis was lumbo-sacral strain.  

Pursuant to the Board's request, the Federal Bureau of Investigation, Washington, D.C., indicated that on the basis of the data furnished, they were unable to locate an arrest record (Exhibit C).  

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AIR FORCE EVALUATION:

HQ AFPC/DPPRS notes there is no documentation in the master personnel records documenting the discharge upgrade from undesirable to general.  They conclude the discharge was consistent with the procedural and substantive requirements of the discharge regulation and was within the discharge authority’s discretion.  As the applicant has not submitted evidence or identified any errors or injustices that occurred during the discharge processing, denial is warranted. 

A complete copy of the evaluation is at Exhibit D.

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APPLICANT'S REVIEW OF AIR FORCE EVALUATION:

The applicant contends he was not told of his rights and was coerced by his commander into signing away any rights.  The commander intensely disliked him.  He requested a transfer many times to get away from those who had a bad influence on him, but these requests were disregarded.  In his conversation with the Inspector General, he was told his accusations against his commander could get him into even further trouble.  On 31 Aug 53, he was not drunk and disorderly but had been drugged, beaten and robbed.  Young men who burned their draft cards during the Vietnam era were later given blanket amnesty.

The applicant’s complete response is at Exhibit F.

On 23 Feb 05, the AFBCMR Staff invited the applicant to provide post-service information within 20 days (Exhibit G).  

The applicant provides a personal statement describing his life since separation as well as his family.  He provides several character statements and asks his discharge be upgraded so that he does not continue to bear the stigma from these long-ago, minor offenses.

The applicant’s complete response, with attachments, is 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.	Insufficient relevant evidence has been presented to demonstrate the existence of error or injustice.  The applicant referred to a back injury incurred while in the Air Force but did not specify what action he wanted the Board to take on this issue.  Presuming he wanted either a medical discharge with severance pay or a medical retirement, we are not persuaded the applicant had a medical condition that rendered him unfit.  If the 9 Jun 53 medical entry is correct, the applicant’s injury and subsequent back pain may have begun four years prior, which would be before he enlisted.  Military medical evaluation determined his spinal condition, while requiring temporary medical profiles, did not warrant disability processing and that he was worldwide qualified.  The DVA determined the applicant’s condition was service connected and gave him a 10% rating for slightly limited range of motion.  The reason the applicant could be considered fit for duty by the Air Force and later be granted a service-connected disability by the DVA lies in understanding the differences between Title 10, USC, and Title 38, USC.  Title 10, USC, Chapter 61, is the federal statute that charges the Service Secretaries with maintaining a fit and vital force.  For an individual to be considered unfit for military service, there must be a medical condition so severe that it prevents performance of any work commensurate with rank and experience.  This clearly did not apply in this applicant’s situation.  Congress recognized that a person could acquire physical conditions that, although not unfitting at the time of separation, may later progress in severity and alter the 
individual’s lifestyle and future employability.  With this in mind, Title 38, USC, which governs the DVA compensation system, was written to allow awarding compensation ratings for conditions that are not unfitting for military service.  The DVA may increase or decrease a member’s disability rating based on the seriousness of the medical condition throughout his/her life span.  This is the reason why an individual can be found fit for duty and yet after discharge may receive a compensation rating from the DVA for a service-connected, but militarily non-unfitting condition.  Therefore, we see no basis to alter the applicant’s military records in this regard.  As for his request for an honorable discharge, we noted the post-service information he provided.  However, a majority of the Board is not persuaded this overcomes the applicant’s repeated misconduct as evidenced by three Summary Courts-Martial.  Despite being given an opportunity at rehabilitation, the applicant’s continued disorderly conduct resulted in two Article 15s.  The applicant provides no evidence that supports his claims his rights were violated or the discharge process was unjust or in error.  Further, his undesirable discharge apparently was upgraded to general through some unknown process, and the Board majority is persuaded this is sufficient relief as it enables him to receive DVA treatment.  The Board majority concludes the applicant’s service should not be characterized at the same level as those military members with unblemished service and this application should therefore be denied.

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RECOMMENDATION OF THE BOARD:

A majority of the panel finds insufficient evidence of error or injustice and recommends the application be denied.

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The following members of the Board considered this application in Executive Session, on 24 March 2005, under the provisions of AFI 36-2603:

						Panel Chair
						Member
						Member

A majority of the Board recommended denial of the appeal.  recommended the applicant’s discharge be upgraded to honorable on the basis of clemency but that his records not be 
expunged.  However, she does not wish to submit a Minority Report.  The following documentary evidence relating to AFBCMR Docket Number BC-2005-00178 was considered:

   Exhibit A.  DD Form 149, dated 18 Jan 05, w/atchs.
   Exhibit B.  Applicant's Master Personnel Records.
   Exhibit C.  FBI Report - Negative
   Exhibit D.  Letter, HQ AFPC/DPPRS, dated 26 Jan 05.
   Exhibit E.  Letter, SAF/MRBR, dated 7 Feb 05.
   Exhibit F.  Letter, Applicant, dated 27 Feb 05.
   Exhibit G.  Letter, AFBCMR, dated 23 Feb 05.
   Exhibit H.  Letter, Applicant, undated, received 4 Mar 05, 
					w/atchs. 

                                   
                                   Panel Chair 

AFBCMR  BC-2005-00178

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

SUBJECT:  AFBCMR Application of  

	On March 24, 2005, the Board voted to deny the applicant’s request to have his offenses expunged from his record and his implied request to be given a disability discharge/retirement.  The Board majority also voted to deny the applicant’s request to have his 1954 general discharge upgraded to honorable.  After carefully considering the circumstances of this case, I agree with the minority vote to upgrade the discharge to honorable.  

	Based on the available evidence, the applicant’s undesirable discharge was consistent with the procedural and substantive requirements of the discharge regulation and was within the discharge authority’s discretion.  The applicant has not established the discharge was erroneous or unjust.  The undesirable characterization was subsequently upgraded to general, according to verification by the Veterans Administration in 1967 and the DD Form 214 currently in the applicant’s records.  The applicant has provided post-service information demonstrating he has been a productive, law-abiding citizen since his discharge, and the FBI could find no arrest record based on the information provided.  Furthermore, the applicant’s difficult childhood with a dysfunctional family, his emotional insecurity, and the relatively minor nature of his offenses are, in my view, mitigating factors. 

	In view of the above and given the continued adverse impact of the discharge, I believe it would be an injustice for the applicant to continue to suffer its effects.   Accordingly, I direct the applicant’s general characterization be upgraded to honorable on the basis of clemency.  However, I agree with the Board that the applicant’s offenses should remain a matter of record and that his back problems did not warrant a medical discharge or retirement.  Therefore, these portions of the applicant’s appeal are denied.

						
						Director
						Air Force Review Boards Agency

AFBCMR BC-2005-00178

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 22 September 1954, he was honorably discharged and furnished an Honorable Discharge certificate.

                                                                          
                                                                          Director
                                                                          Air Force Review Boards Agency