RECORD OF PROCEEDINGS
         AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS

IN THE MATTER OF:	DOCKET NUMBER:  BC-2007-02040
		INDEX CODE:  110.02

	XXXXXXX	COUNSEL:  NONE

		HEARING DESIRED: YES

MANDATORY CASE COMPLETION DATE:  30 DEC 2008

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APPLICANT REQUESTS THAT:

His undesirable discharge be upgraded.

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APPLICANT CONTENDS THAT:

When he entered military service, he was just 17 years old and really not sure of himself.  He was really scared of going to war; a lot of his friends had gone to war and never came back.  At the time of his discharge, voices were telling him, if he went to war, he would not come back.  He was confused and had never been away from home.

In support of his appeal, applicant submitted a personal statement.

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

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STATEMENT OF FACTS:

Applicant enlisted in the Regular Air Force on 2 January 1973 at the rank of airman basic for a period of four years.  

On 24 May 1973, the squadron section commander initiated administrative discharge against the applicant for misconduct, specifically, fraudulent enlistment under AFM 39-12, Chapter 2, Section D, para 2-60.  The specific reason for the proposed action was concealment of prior service.  Applicant had been discharged from the US Army, with an under other than honorable conditions (UOTHC) character of service.

On 31 May 1973, applicant acknowledged receipt of the notification and waived his rights to a hearing before an administrative discharge board and submitted statements in his own behalf.  He further acknowledged he understood that his separation could be under conditions other than honorable and that he may be deprived of veterans’ benefits; and that he may encounter substantial prejudice in civilian life in situations where the type of service rendered in any branch of the Armed Forces or the type of discharge received may have a bearing.  On 6 June 1973, the staff judge advocate found the case file legally sufficient to support a discharge for misconduct.  He recommended an undesirable discharge.  On 12 June 1973, the discharge authority, approved an undesirable discharge and directed the applicant be furnished a DD Form 258AF, Undesirable Discharge Certificate.

On 15 June 1973, applicant was discharged under the provisions of AFM 39-12, Chapter 2, Section D, paragraph 2-55, and issued an Undesirable Discharge Certificate, with a UOTHC service characterization.  He was credited with 4 months and 6 days active duty service (excludes time lost 4 – 21 May 1973, 24 – 31 May 1973, and 31 May – 14 June 1973).  

On 4 August 1975, the Air Force Discharge Review Board (AFDRB) considered and denied the applicant’s request for upgrade of his undesirable discharge and the reenlistment eligibility (RE) code of 2.  They concluded that the evidence submitted was insufficient to warrant a change in the type or nature of the discharge (see AFDRB Hearing Record at Exhibit B).

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

On 21 September 2007, a copy of the FBI report was forwarded to the applicant for comment.  At that time, the applicant was also invited to provide additional evidence pertaining to his activities since leaving the service (Exhibit D).  As of this date, no response has been received by this office.

At the time of the applicant’s discharge, the service characterization received was appropriate under the provisions of the governing regulation in effect at the time.  Attached at Exhibit E, is an excerpt from AFI 36-3208, Administrative Separation of Airmen, which shows the current criteria for determining the characterization of service under similar circumstances.  Additionally, notwithstanding the absence of error or injustice, the Board has the prerogative to grant relief on the basis of clemency if so inclined.

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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, we find no evidence of an error or injustice that occurred in the discharge processing.  Based on the available evidence of record, it appears the discharge was consistent with the substantive requirements of the discharge regulation and within the commander's discretionary authority.  The applicant has provided no evidence which would lead us to believe the characterization of the service was contrary to the provisions of the governing regulation, unduly harsh, or disproportionate to the offenses committed.  We considered upgrading the discharge based on clemency; however, 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.  Therefore, in the absence of evidence to the contrary, we find no basis upon which to recommend granting the relief sought.

4.  The applicant's case is adequately documented and it has not been shown that a personal appearance with or without counsel will materially add to our understanding of the issue involved.  Therefore, the request for a hearing is not favorably considered.

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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-2007-02040 in Executive Session on 25 October 2007, under the provisions of AFI 36-2603:

The following documentary evidence was considered:

    Exhibit A.  DD Form 149, undated, w/atch. 
    Exhibit B.  Applicant's Master Personnel Records.
    Exhibit C.  FBI Report of Investigation.
    Exhibit D.  Letter, AFBCMR, dated 21 Sep 07, w/atchs.
    Exhibit E.  AFI 36-3208, Administrative Separation of Airman.