RECORD OF PROCEEDINGS
         AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS

IN THE MATTER OF:	DOCKET NUMBER:  BC-2007-00771
		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.

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APPLICANT CONTENDS THAT:

He received, an other than honorable conditions characterization of service for stealing a radio he was just borrowing from another soldier; however the Air Police came and sent him to jail for six months, resulting in his subsequent discharge.  Applicant was only 17 years of age at the time and did not realize the rights he had and the consequences of his actions.  The offense was minor and should not have resulted in discharge

In support of his appeal, applicant submitted a copy of his DD Form 214, Armed Forces of the United States Report of Transfer or Discharge, dated 28 Nov 56 and a memo from the Texas Veterans Commission, dated 9 Mar 07.

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

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STATEMENT OF FACTS:

Applicant enlisted in the Regular Air Force on 23 Feb 56 in the grade of airman basic for a period of four years.  His highest grade held was airman third class.

On 28 Sep 56, applicant was convicted by Summary Court-Martial for stealing one (1) Coronado Table Model Radio of a value of less than twenty dollars ($20), the property of another airman.  He was sentenced to CHL for 30 days and forfeiture of $50.

On or about 24 Oct 56, applicant’s commander initiated administrative discharge action against the applicant for unfitness; on that same date, after consulting with legal counsel, applicant acknowledged receipt of the administrative discharge action and waived his entitlement to appear before a board of officers and requested discharge in lieu of board proceedings.  He further acknowledged he understood that if his application was approved, that his separation could be under conditions other than honorable and that he could receive an undesirable discharge, and this may deprive him of rights as a veteran under both federal and state legislation.

On 20 Nov 56, the group commander approved an undesirable discharge and directed that the applicant be issued a DD Form 258AF, “Undesirable Discharge Certificate.”  On 3 Aug 55, applicant was discharged under the provisions of AFR 39-17, with service characterized as under other than honorable conditions.  He was credited with 7 months and 12 days active service (excludes 54 days of lost time due to two periods of confinement).

Pursuant to the Board’s request, the Federal Bureau of Investigation, Clarksburg, West Virginia, provided an investigative report which is attached at Exhibit C.

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AIR FORCE EVALUATION:

None.  The applicant has not shown the characterization of his discharge was contrary to the provisions of AFR 39-17A (unfitness) (extract copy of applicable portion attached as Exhibit D).  Nor has he shown the nature of the discharge was unduly harsh or disproportionate to the offenses committed.  At the time of the applicant’s discharge, AFR 39-17A, paragraph 8, stated that when discharged because of unfitness, an Undesirable Discharge (UD) will be furnished.  However, in 1959, AFR 39-17 was changed to state that when an airman discharged under this regulation should be furnished an undesirable discharge, unless the particular circumstances in a given case warrants a general or honorable discharge.  Criteria for the issuance of an undesirable, general, or honorable discharge is outlined in paragraph 9, AFR 39-10 (See Exhibit E).  Notwithstanding the absence of error or injustice, the Board has the prerogative to grant relief on the basis of clemency if so inclined.

Attached at Exhibit F is a memorandum prepared by the Air Force Review Boards Agency Legal Advisor addressing the issue of characterization of service and how standards have changed since 1959.

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APPLICANT'S REVIEW OF THE FBI REPORT:

A copy of the FBI Report of Investigation was forwarded to the applicant on 20 Apr 07 for review and comment within 30 days.  As of this date, no response has been received by this office (Exhibit G).

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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.  The Board finds no impropriety in the characterization of applicant's discharge.  It appears that responsible officials applied appropriate standards in effecting the separation, and we do not find persuasive evidence that pertinent regulations were violated or that applicant was not afforded all the rights to which entitled at the time of discharge.  Considered alone, we conclude the discharge proceedings were proper and characterization of the discharge was appropriate to the existing circumstances.  

4.  Consideration of this Board, however, is not limited to the events which precipitated the discharge.  We have a Congressional mandate which permits consideration of other factors; e.g., applicant's background, the overall quality of service, and post-service activities and accomplishments.  Further, we may base our decision on matters of equity and clemency rather than simply on whether rules and regulations which existed at the time were followed.  This is a much broader consideration than officials involved in the discharge were permitted, and our decision in no way discredits the validity of theirs.

5.  However, insufficient relevant evidence has been presented to demonstrate the existence of error or injustice.  We found 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.  In addition, based on his overall record of service, the events which precipitated the discharge, and the contents of the FBI report, we are not persuaded that an upgrade of the characterization of his discharge is warranted on the basis of clemency.  

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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-2007-00771 in Executive Session on 26 June 2007, under the provisions of AFI 36-2603:

	Vice 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.  FBI Report of Investigation.
    Exhibit D.  Air Force Regulation 39-17A.
    Exhibit E.  Air Force Regulation 39-10.
    Exhibit F.  Memorandum, SAF/MRB Legal Advisor, 17 Apr 07.
    Exhibit G.  Letter, AFBCMR, dated 25 Apr 07.

                                   
                                   Vice Chair