RECORD OF PROCEEDINGS
AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS

IN THE MATTER OF:				DOCKET NUMBER:  BC-2007-01361
								INDEX CODE:  106.00
	XXXXXXXXXXXXX				COUNSEL:  NONE

								HEARING DESIRED:  NO

MANDATORY CASE COMPLETION DATE:  2 November 2008

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APPLICANT REQUESTS THAT:

His characterization of service be upgraded from undesirable to medical or general.

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APPLICANT CONTENDS THAT:

At the time of his discharge, he was mentally ill and needed psychological intervention before determining his discharge status.

His wife contends he was diagnosed with depression in 1975 and is currently treated with therapy and medicine management.  She suspects the illness was present and undiagnosed during his service in the military and may have contributed to his behavior and inability to cope and perform to military standards.  She has witnessed his regret and sadness for his actions and choices made during his military service, and he expresses his apologies to the Armed Forces of the United States.  For the past thirty-two years, he has worked diligently for the welfare of his family, and, in the most recent years, in the church and community as a productive part of society up until his failing health.

In support of his appeal, he has submitted copies of a statement from his wife, dated 19 February 2007, and a letter from the Psychiatry Group, PLLC, Bartlett, TN, dated 26 April 2007.

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 1 January 1971 for a period of four years, and served as an apprentice administrative clerk. 

On 18 September 1972, applicant was notified of his commander's intent to recommend him for an undesirable discharge, specifically, unfitness for further military service.

The commander stated the following reasons for the proposed discharge:         

a.	On 3 November 1971, 11 November 1971, 27 December 1971, 6 January 1972, 18 January 1972, 29 February 1972, 3 May 1972, and 18 August 1972, he failed to go at the time prescribed to his appointed place of duty

b.	On or about 23 February 1972, he was disorderly in the Dining Hall

c.	On or about 1 March 1972, he made a false official statement with intent to deceive

d.	On or about 24 May 1972, he was disorderly in the barracks  

e.	On or about 1 July 1972, he unlawfully struck a female airman in the face with his hand

f.	On or about 27 September 1972, he was apprehended for shoplifting two cartons of cigarettes from the Altus AFB Base Exchange

On 7 January 1972, applicant received a written reprimand for his failure to go actions on 3 November 1971, 11 November 1971, 27 December 1971, and 6 January 1972.  Although the record reveals no formal punishment for his tardiness on 18 January 1972, it is mentioned in a control roster action on 26 January 1972.  On 14 April 1972, he received administrative reprimands for his involvement in a fight in the Dining Hall on 23 February 1972.  On 3 May 1972, he received an Article 15 for his failure to go, and his punishment consisted of a reduction to the grade of Airman Basic and forfeiture of $25.00 per month for two months.  On 20 July 1972, he received another Article 15 for, on or about 1 July 1972, assaulting a female airman by slapping her in the face and causing her to have a bloody nose and scratches around her face, and his punishment consisted of forfeiture of $25.00 and 14 days restriction to the limits of Altus AFB, OK.  On 10 August 1972, he received an administrative reprimand for his involvement in a fight in the barracks on 24 May 1972.  On 25 August 1972, he received another Article 15 for his failure to go on 18 August 1972, and his punishment consisted of forfeiture of $25.00 per month for two months, extra duty for two hours per day for 14 days, and 15 days restriction to the limits of Altus AFB, OK.  On 2 October 1972, he was given another Article 15 for, on or about 27 September 1972, being apprehended while shoplifting two cartons of cigarettes from the Base Exchange at Altus AFB, with punishment consisting of 30 days correctional custody, later mitigated by his commander to 15 days restriction to the limits of Altus AFB.  Additionally, he was placed on the control roster by letter dated 26 January 1972 for a period of 90 days, and this control roster action was subsequently extended by letter three times.

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

On 27 September 1972, after consulting with counsel, applicant exercised his right to a hearing before an administrative discharge board.  On 3 October 1972, he was notified that a board of officers would be convened on 4 October 1972 to investigate whether he should be discharged because of his frequent involvement of a discreditable nature with civil or military authorities, as evidenced by the allegations contained in the commander’s notification of proposed discharge action.  A delay was requested, and the board was rescheduled to 12 October 1972.  On 11 October 1972, he withdrew his request for a hearing before an administrative discharge board, and submitted a statement in mitigation, extenuation, and defense of the proposed discharge action.

A legal review was conducted on 13 October 1972, in which the staff judge advocate recommended applicant be allowed to withdraw his request for an administrative discharge board, be discharged for unfitness and furnished an undesirable discharge, and that no further rehabilitative procedures be attempted.  A further legal review was conducted by 22 AF/JA on 26 October 1972, in which they recommended that applicant be discharged for unfitness and issued an undesirable discharge, without opportunity for probation and rehabilitation.

A resume of applicant's performance reports follows:  

	PERIOD ENDING 				OVERALL EVALUATION

	 18 Aug 1972         	 		2
	 25 Apr 1972	        			1 (referral)
	 26 Jan 1972    				2

His records reflect he is entitled to wear the National Defense Service Medal.

Applicant was discharged for unfitness on 3 November 1972 in the grade of Airman Basic (E-1), in accordance with AFR 39-10, paragraph 2-15a – frequent involvement of a discreditable nature with civil or military authorities, with an undesirable discharge characterization.  Probation and rehabilitation was not offered.  He served a total of one year, five months, and three days of net active service. 

On 8 February 1979, applicant appealed to the Air Force Discharge Review Board (AFDRB), requesting that his records be reviewed and his discharge be upgraded to honorable.  The AFDRB concluded that his discharge was consistent with the procedural and substantive requirements of the discharge regulation, was within the discretion of the discharge authority, and that he was provided full administrative due process.  They determined that his military record does not contain, nor did he provide, evidence that his service was sufficiently meritorious to warrant upgrade, and denied his appeal on 11 December 1979.

Pursuant to the Board's request, the Federal Bureau of Investigation, Clarksburg, WV, 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:

None.  The applicant has not shown the characterization of his discharge was contrary to AFM 39-12 (extract copy attached as Exhibit G), nor has he shown that the nature of the discharge was unduly harsh or disproportionate to the offense committed.  At the time of his discharge, AFM 39-12, paragraph 1-24e, stated that the characterization of service as undesirable was warranted if the discharge was for misconduct, unfitness, or for security reasons based on the approval of a recommendation of an administrative discharge board, or waiver of the right to board action.  AFM 39-12, paragraph 2-15, further stated an airman is subject to discharge for unfitness when his military record in his current enlistment or period of obligated service includes frequent involvement of a discreditable nature with civil or military authorities.

The applicant has not alleged any impropriety in the manner in which the discharge was conducted, and the record indicates he was afforded all rights to which he was entitled.  Thus, by choosing to waive his rights associated with an administrative discharge board, it appears he was aware of the possibility of receiving an undesirable service characterization.  Additionally, there was no claim or mention of mental illness by the applicant during the discharge process.  However, notwithstanding the absence of error or injustice, the Board has the prerogative to grant relief on the basis of clemency if so inclined.

On 17 April 2007, the SAF/MRB Legal Advisor provided a generic opinion concerning service characterization which is contained at Exhibit D.

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APPLICANT'S REVIEW OF AIR FORCE EVALUATION:

A complete copy of the 17 April 2007 SAF/MRB Legal Advisory was forwarded to the applicant on 20 June 2007 for review and comment within 30 days.  Additionally, applicant was given a chance on 20 June 2007 to provide information within 30 days pertaining to his activities since leaving the service.  Applicant responded on 1 August 2007, and furnished statements from Chemtura, dated 27 July 2007, Blessed Hope Church, dated 26 July 2007, and UT Medical Group, Inc., dated 15 November 2006.  

Applicants complete response, with attachments, is at Exhibit E.

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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.  Sufficient relevant evidence has been presented to demonstrate the existence of an injustice to warrant granting clemency and changing the applicant’s characterization of service from undesirable to general.  After reviewing the evidence of record, it appears that his separation was proper and in compliance with the appropriate regulations in effect at the time.  However, after a thorough review of applicant’s complete submission and his military records, a majority of the Board is persuaded that in applying today’s standards, a general discharge more appropriately characterizes his period of service.  Additionally, evidence has been presented that applicant has suffered from severe mental depression, and despite this, has substantially changed his life since his separation.  In view of the above, a majority of the Board believes the benefit of any doubt should be resolved in his favor, and the Board, by majority vote, voted to recommend that his records be corrected to the extent indicated below.  

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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 
3 November 1972, he was discharged with service characterized as general (under honorable conditions).

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The following members of the Board considered Docket Number BC-2007-1361 in Executive Session on 2 August 2007, under the provisions of AFI 36-2603:

				, Panel Chair
				, Member
				, Member

By majority vote, the Board voted to correct the records as recommended.  XXXXXXXXXX voted to deny the applicant’s request, but does not wish to submit a minority report.  The following documentary evidence was considered:

    Exhibit A.  DD Form 149, dated 25 Apr 07, w/atchs.
    Exhibit B.  Applicant's Master Personnel Records.
    Exhibit C.  FBI Response, dated 18 May 07.
    Exhibit D.  Letter, SAF/MRB Legal Advisor, dated 17 Apr 07.
    Exhibit E.  Character Letters, dated 26 & 27 Jul 07, and 
                15 Nov 06.
    Exhibit F.  Letters, AFCMR, dated 20 Jun 07.
    Exhibit G.  AFM 39-12 Extracts, dated 1 Sep 66 & 25 Mar 74.

                                   
                                   Panel Chair