RECORD OF PROCEEDINGS
AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS

IN THE MATTER OF:	DOCKET NUMBER: BC-2007-01366
		INDEX CODE:  110.02
		COUNSEL:  NOT INDICATED
		HEARING DESIRED:  NO

MANDATORY CASE COMPLETION DATE: Nov 05, 2008

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APPLICANT REQUESTS THAT:

His under other than honorable conditions (UOTHC) discharge be upgraded.
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APPLICANT CONTENDS THAT:

He did not know how important it was to try and get his discharge corrected.

He tried some time ago to get his discharge upgraded but due to the fire in St. Louis, he was unable to get any satisfaction.

At the time of the incident, he was tricked into saying the wrong thing, when he was not guilty.

The applicant's complete submission is at Exhibit A.

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STATEMENT OF FACTS:

The applicant’s records were destroyed in the 1973 fire at the National Personnel Records Center (NPRC).  However, partial documents were recovered.

The records reflect that applicant entered active duty Air Force on 18 Oct 60.

The applicant’s records indicate he was convicted by a Summary Court-Martial and received a sentence of 25 days hard labor and a reduction in grade to airman basic.  He was released from confinement on 13 Jun 62.  

Additionally, on 28 Aug 62, the applicant, along with three other individuals, was tried and convicted by Special Court-Martial of participating in a breach of the peace by wrongfully overturning bar stools and threatening patrons of a bar and committing assault upon a patron by breaking his arm with an automobile bumper jack.

The applicant was sentenced with a bad conduct discharge, hard labor confinement for three months, and forfeiture of $28 per month for three months.  However, the convening authority only approved confinement at hard labor for three months and forfeiture of $28 per month for three months.

The applicant had 103 days lost time and was discharged with a UOTHC on 21 Dec 62, under the provisions of AFR 39-17.
  
Pursuant to the Board’s request, the Federal Bureau of Investigation provided a copy of an Investigative Report, Number 53425ID, which is 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 39-17, Discharge of Airmen Because of Unfitness, (copy 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 39-17, paragraph 8, stated that when discharged because of unfitness, an Undesirable Discharge (UD) will be furnished 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 over the years.

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APPLICANT'S REVIEW OF THE FBI REPORT:

A copy of the FBI Report was forwarded to the applicant on 5 Jun 07 for review and comment within 30 days (Exhibit G).  As of this date, this office has not received a response.

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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.  We took notice of the applicant's complete submission in judging the merits of the case; however, the applicant did not submit any evidence or identify any errors or injustice that occurred in the discharge processing.  He provided no facts warranting a change to his under other than honorable conditions discharge.  Based on the documentation on file in the master personnel records (MPR), the discharge was consistent with the substantive requirements of the discharge regulation.  Therefore, in the absence of evidence to the contrary, we find no compelling basis to recommend granting the relief sought in this application.

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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 Docket Number BC-2007-01366 in Executive Session on 19 July 2007, under the provisions of AFI 36-2603:

	, Panel Chair
	, Member
	, Member

The following documentary evidence was considered:

    Exhibit A.  DD Form 149, w/Atchs, dated 9 Jun 07.
    Exhibit B.  Applicant's Master Personnel Records.
    Exhibit C.  FBI Report.
    Exhibit D.  Extract, AFR 39-17.
    Exhibit E.  Extract AFR 39-10.
    Exhibit F.  AFBCMR Letter, w/Atchs, dated 5 Jun 07.
    Exhibit G.  SAF/MRB Legal Opinion, dated 17 Apr 07.

                                   
                                   Panel Chair