RECORD OF PROCEEDINGS AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS IN THE MATTER OF: DOCKET NUMBER: BC-2013-03136 COUNSEL: NONE HEARING DESIRED: NO ________________________________________________________________ APPLICANT REQUESTS THAT: His undesirable discharge be upgraded to general (under honorable conditions). ________________________________________________________________ APPLICANT CONTENDS THAT: He was 18 years old when he tried to impress a young lady by taking a car off the street in 1951. This resulted in charges by a civilian court and serving an 18 month sentence. He was subsequently discharged with an undesirable discharge. He is now 81 years old and is making arrangements for placement into a retirement home. He feels a veteran sponsored facility would best fit his lifestyle. His immature indiscretion should not hinder his ability to get into a veterans nursing home. His conduct since his incarceration has been above the law and very productive. In support of his appeal, the applicant submits a personal statement. The applicant’s complete submission, with attachment, is at Exhibit A. ________________________________________________________________ STATEMENT OF FACTS: The applicant enlisted in the Regular Air Force on 18 April 1950. His commander requested that he be discharged under the provisions of AFR 39-22, Disposition of Individuals Convicted by Civil Court after pleading and being found guilty of violating the Dyer Act. On 9 April 1951, the commander ordered his discharge. He was separated on 18 April 1951 with an undesirable discharge. He was credited with 11 months and 1 day of active duty service. Pursuant to the Board’s request, the Federal Bureau of Investigation indicated that on the basis of the information provided, they were unable to locate an arrest record.In response for post-service information the applicant recounts his life after serving the 18 month sentence in the reformatory. He met and married his wife and adopted two children. He owned his own company, which was successful. However, upon divorcing his wife, he left it for the family. He worked for another company until he was forced to retire in 2003. He hopes this information proves that he is a responsible person of good character. The applicant’s complete response, with attachments, is at Exhibit D. Examiner’s Note: 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 E). 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 F). 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 G 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. ________________________________________________________________ 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 during the discharge process. 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 o believe the characterization of the service was contrary to the provisions of the governing regulation, or unduly harsh. In the interest of justice, we considered upgrading the applicant’s discharge on the basis of clemency; however, we found the evidence submitted insufficient to compel us to recommend granting the request on that basis. Therefore, in the absence of evidence to the contrary, we find no basis upon which to recommend granting the relief sought. ________________________________________________________________ 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. ________________________________________________________________ The following members of the Board considered AFBCMR Docket Number BC-2013-02316 in Executive Session on 1 April 2014, under the provisions of AFI 36-2603: The following documentary evidence was considered: Exhibit A. DD Form 149, dated 20 Jun 13, w/atch. Exhibit B. Applicant's Master Personnel Records. Exhibit C. Letter, SAF/MRBC, dated 28 Feb 14. Exhibit D. Letter, Applicant’s Response, 20 Mar 14, w/atchs. Exhibit E. AFR 39-17A, Enlisted Personnel. Exhibit F. AFR 39-10 Excerpt. Exhibit G. Letter, SAF/MRB Legal Advisor Opinion. 1 2