RECORD OF PROCEEDINGS
AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS

IN THE MATTER OF:	DOCKET NUMBER: BC-2007-02192
		INDEX CODE:  110.02
		COUNSEL:  NONE
		HEARING DESIRED:  NO

MANDATORY CASE COMPLETION DATE: Jan 14, 2009

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APPLICANT REQUESTS THAT:

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

As a young man, he made a mistake which resulted in his general discharge.

He has lived with regret for many years and loves his family and country.

His father is a retired master sergeant.

In support of his request, the applicant provided a copy of his DD Form 214, Report of Separation from Active Duty, AF Form 100, Request and Authorization for Separation, a copy of his discharge notification letter.

The applicant's complete submission, with attachments, is at Exhibit A.

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STATEMENT OF FACTS:

The applicant entered the active duty Air Force on 16 May 72.  He served for a period of 1 year, 3 months, and 23 days.

On 10 Nov 72, the applicant received an Article 15 for failure to go at the prescribed time to his appointed place of duty.  Additionally, he was ordered to forfeit $25 and perform extra duty for seven days.

On 13 Dec 72, the applicant was apprehended by civilian authorities and charged with larceny and burglary.  He was released on bond pending court action on 16 Dec 72.  
  
On 24 May 73, he was indicted on two counts by a Grand Jury for stealing a 1972 green Honda valued at $800 and personal property in the amount of $4,200.  He was sentenced to 7 years and 5 years, to run concurrently in the state penitentiary.  The sentence was suspended and he was placed on probation for 5 years and ordered to pay court costs. 

On 18 Jul 73, the applicant was notified of pending discharge actions under AFM 39-12, Separation for Unsuitability; Misconduct, Personal Abuse of Drugs; Resignation or Request for Discharge for the Good of the Service; and Procedures for the Rehabilitation Program, for having been convicted in a civilian criminal court for an offense for which the maximum penalty under the uniform code of military justice  would include confinement in excess of one year.  

On 24 Jul 73, the applicant requested a board hearing.  The hearing was conducted on 15 Aug 73.  The board recommended the applicant be discharged from the service for misconduct because of a civil court disposition and furnished an undesirable discharge.  It was further recommended that he be considered for rehabilitation procedures with a conditional suspension of the discharge under Chapter 4, AFM 39-12.

The discharge authority determined the applicant was not a fit subject for probation and rehabilitation and directed an undesirable discharge be furnished to the applicant.   

The applicant was discharged on 13 Sep 73 with an under other than honorable conditions discharge.

At the time of the applicant’s discharge, AFR 39-12,  paragraph 2-23, stated that an airman is subject to discharge for misconduct upon conviction by civil authorities (foreign and domestic) or action taken which it tantamount to a finding of guilty of an offense for which the maximum penalty under the uniform code of military justice is death or confinement for one year or more....  Notwithstanding the absence of error or injustice, the Board has the prerogative to grant relief on the basis of clemency if so inclined.

Pursuant to the Board’s request, the Federal Bureau of Investigation provided a copy of an Investigative Report, Number 689842X11, which is at Exhibit C.

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APPLICANT'S REVIEW OF FBI REPORT EVALUATION:

A copy of the FBI report and post-service information bulletin were forwarded to the applicant on 9 Aug 07 for review and comment within 30 days (Exhibit D).  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, we note the applicant has not shown the characterization of his discharge was contrary to the provisions of AFR 39-12.  Nor has he shown the nature of the discharge was unduly harsh or disproportionate to the offenses committed.    Additionally, the Board declined to consider upgrade of the applicant’s discharge on the basis of clemency.  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-2007-02192 in Executive Session on 25 September 2007, under the provisions of AFI 36-2603:

The following documentary evidence was considered:

    Exhibit A.  DD Form 149, w/atchs, dated 4 Jul 07.
    Exhibit B.  Applicant's Master Personnel Records.
    Exhibit C.  FBI Report
    Exhibit D.  Letters, AFBCMR, w/atchs, dated 9 Aug 07.