RECORD OF PROCEEDINGS
         AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS

IN THE MATTER OF:	DOCKET NUMBER:  BC-2007-00767
		INDEX CODE:  110.02

		COUNSEL:  NONE

		HEARING DESIRED: NO

MANDATORY CASE COMPLETION DATE:  14 SEP 2008

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APPLICANT REQUESTS THAT:

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

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APPLICANT CONTENDS THAT:

He made a mistake while on leave and was incarcerated for two months.  His work record was very good and at the time of his discharge he was told he would receive a better discharge.

Applicant states, he is being evaluated for bilateral lung transplant and would like to qualify for Department of Veterans Affairs (DVA) benefits.

In support of his appeal, applicant submitted a personal statement; a copy of his DD Form 214, Report of Separation from Active Duty, dated 22 Jan 74, and several letters of character reference.

Applicant’s complete submission, with attachments, is at Exhibit A.

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STATEMENT OF FACTS:

Prior to the events under review, applicant enlisted in the Regular Air Force on 21 Jul 71 for a period of four years in the grade of airman basic.  He was progressively promoted to the grade of sergeant with a date of rank of 1 Jul 73.

On 19 Dec 73, the squadron section commander initiated discharge action against the applicant for misconduct.  The reason for the action was based on AFM 39-12, Chapter 2, Section C, paragraph 2-23, “discharge for misconduct because of civil court disposition.”  The specific reason for the proposed action was that on or about 9 Jul 73 applicant was involved in a 3-car automobile accident and subsequently charged with manslaughter on or about 17 Jul 73.  Applicant was speeding an estimated 80 mph in a 35 mph zone, failure to obey a traffic signal, and driving under the influence (DUI).

On that same date, applicant acknowledged receipt of the notification and his squadron section commander recommended him for a general discharge.  On 4 Jan 74, the staff judge advocate found the case file legally sufficient and concurred with the commander’s recommendation of a general discharge, without rehabilitation due to the gravity of the offense.  On 7 Jan 74, support group commander accepted the waiver submitted by the applicant in lieu of board action and after considering all the facts and circumstances in the case, recommended applicant be furnished a general discharge certificate.  On 16 Jan 74, the discharge authority found the applicant’s overall military record not sufficiently meritorious to warrant the issuance of an honorable or general discharge and directed applicant be furnished an undesirable discharge certificate.

On 22 Jan 74, applicant was discharged under the provisions of AFM 39-12, Chapter 2, Section C, with service characterized as under other than honorable conditions.  He was credited with 2 years, 6 months and 2 days active duty service (excludes time lost 9 Jul 73 to 16 Jul 73 and 19 Nov 73 to 22 Jan 74).  

At the time of the applicant’s discharge, AFM 39-12, Chap 2, paragraph 2-25, stated an airman discharged under this section should be furnished an Undesirable Discharge, unless the particular circumstances in a given case warrant a general or honorable discharge (Exhibit C).

Pursuant to the Board’s request, the Federal Bureau of Investigation, Clarksburg, WV, indicated on 16 Jul 07, that, on the basis of data furnished, they are unable to locate an arrest record (Exhibit D).

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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 discharge appears to be in compliance with the governing regulations and we find no evidence to indicate that his separation from the Air Force was inappropriate.  The applicant has not shown the characterization of his discharge was contrary to the provisions of AFR 39-12, Chap 2, Sec C., (Discharge for Misconduct Because of Civil Court Disposition).  Nor has he shown the nature of the discharge was unduly harsh or disproportionate to the offenses committed.  We find no evidence of error in this case and after thoroughly reviewing the documentation that has been submitted in support of applicant's appeal, we do not believe he has suffered from an injustice.  Therefore, based on the available evidence of record, we find no basis upon which to favorably consider this application.

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.  We have considered applicant's overall quality of service, the events which precipitated the discharge and available evidence related to post-service activities and accomplishments.  On balance, we do not believe that clemency is warranted.

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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.

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The following members of the Board considered AFBCMR Docket Number BC-2007-00767 in Executive Session on 30 August 2007, under the provisions of AFI 36-2603:

	Panel Chair
	Member
	Member

The following documentary evidence was considered:

    Exhibit A.  DD Form 149, dated 8 Mar 07, w/atchs. 
    Exhibit B.  Applicant's Master Personnel Records.
    Exhibit C.  Air Force Manual 39-12.
    Exhibit D.  FBI Response, dated 16 Jul 07.

                                   
                                   Panel Chair