RECORD OF PROCEEDINGS
AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS

IN THE MATTER OF: 			DOCKET NUMBER: BC-2015-00448

XXXXXXXXXX				COUNSEL:  

						HEARING DESIRED:  YES 

APPLICANT REQUESTS THAT:

His undesirable discharge be upgraded to general (under honorable conditions).

APPLICANT CONTENDS THAT:

Through counsel, the applicant submits that if he were to serve in the Air Force today, this 82-year-old’s experience and discharge would be very different.  He would have been less embarrassed to tell his commanding officers that the reason he had to miss work so often was that he had hemorrhoids, and advances in medical treatment may have allowed him to be more productive while suffering from that illness.  He would now be subject to different regulations that provide greater substantive and procedural protections and limit discharge for work-related deficiencies to honorable or general character of service.  The environment for a young, african-american man would be a marked improvement from what it was in a newly integrated Air Force in the 1950s.

In light of the regulatory, medical, and social advances of the past sixty years, he petitions to correct his character of discharge.  As an elderly man living near the poverty line that is nearly blind and has cancer, he seeks the honor of that designation and the greater access such status allows state and federal benefits.  

He respectfully requests the Board consider and resolve the following contentions:

An Undesirable discharge is improper and unjust because current discharge regulations are substantially less draconian; is unjust for failing properly to account for his medical and other issues and the statute of limitations period should be waived for evident error and injustice.

After he completed basic training, he was stationed at Sampson Air Force Base in Geneva, New York and placed in a supply unit.  Despite receiving a single court-martial for failing to go to his place of duty, his commanding officer rated both his character and his performance as "excellent." 

In June 1952, he deployed to Eielson Air Force Base in Alaska.  At that time, Alaska had not yet achieved statehood and so his duty there qualified as Foreign Service.  Unfortunately, this service was marked by a series of health issues.  From September through December 1952, he suffered from an upper respiratory infection, symptoms of which included coughing, congestion, and blood in his sputum.  Four times, he had to seek medical attention.

More seriously, on 6 November, he presented at the doctor’s office with a very personal complaint:  that he had not had a bowel movement the prior day and that it felt like something was "hanging out the rectum."  Upon examination, the doctor determined that he had hemorrhoids.

From November through May, he lived with daily pain and discomfort.  Medical records suggest that he received no immediate treatment, such as a corticosteroid cream, hemorrhoid cream, or stool softener such as would be provided today.  However, he did not complain or disrupt the work place; instead, he quietly went to sick call. 

Meanwhile, his commanding officers were unaware of his condition.  In spite of his attendance at sick calls, his unit did not inquire about his health or well-being.  It appears that they may have misunderstood his actions as slacking and insubordination, rather than coping with an illness.  His early indorsements all noted his "excellent" character and his “excellent” or at least "satisfactory" efficiency, a later indorsement from Alaska rated his character "fair" and his efficiency "unsatisfactory."  A first lieutenant, who was the adjutant of his squadron, later stated that he "was very unreliable on his job."  He described having a conversation around Christmas 1952 in which he expressed that he wanted to get out of the Air Force, which the lieutenant interpreted as a sign that he was unfit for service.  The lieutenant did not know about his illness at that time.

Thinking that he was a poor worker, the commanding officers transferred him to different jobs.  They also denied him any three-day passes that other airmen were routinely allowed, thinking that he was “goofing off” by going to sick call.  In the seventeen months that he was in Alaska, he put in for leave twice and three-day passes an estimated four times; every request was denied.  When asked, the only reason his supervisor gave for the denials was that he "wouldn't get a three-day pass as long as he (the supervisor) was on this base."  Those refusals ultimately led him to take a three-day unauthorized absence in December 1952, for which he was punished by summary court-martial.  A board member at discharge later expressed some surprise that he had received no three-day passes during his tour in Alaska. 
 
Finally, on 29 May 1953, more than six months after his diagnosis, he had surgery to correct his condition.  The mere fact that he required surgery suggests that the hemorrhoids were bleeding or causing severe pain.  He was admitted to the hospital on 28 May and discharged on 4 June.  Over the next two weeks, he reported to the doctor for post-operative treatment. Despite that extended absence, his commanding officers still were unaware of his medical condition.

An undesirable discharge is improper and unjust because the current discharge regulations are substantially less draconian and would not have resulted in his receiving such a discharge.
 
The testimony of first lieutenant and his commander indicated that they viewed those failures as troubling signs of unfitness. Ultimately, the Board cited as the basis for its discharge determination as his "repeated petty offenses." 

What constitutes a "petty offense" is not defined in Air Force regulations or in the Uniform Code of Military Justice.  However, federal law at the time defined a "petty offense" as "[a]ny misdemeanor, the penalty for which does not exceed imprisonment for a period of six months or a fine of not more than $500, or both." 18 U.S.C. § 1(3) (1952).  

In 1954, Air Force regulations provided that a commanding officer could recommend discharge of an airman for "unfitness" if the airman satisfied one of the following five conditions:  Gives evidence of habits or traits of character manifested by antisocial or amoral trend, chronic alcoholism, criminalism, sexual perversion, drug addiction, pathological lying, or other misconduct, has unclean habits, repeatedly commits offenses, is a habitual shirker or has been recommended for discharge by a board of medical officers.  Because he possesses a psychopathic (antisocial) personality disorder or defect and his record of service reveals frequent disciplinary actions, a board would then consider that recommendation and make its own recommendation of whether to impose an undesirable discharge for unfitness, a general discharge for unsuitability, or retain the airman in the service. 

The governing regulations today similarly provide an airman the opportunity to appear before an administrative discharge board. However, the list of actions that warrant discharge under other than honorable conditions is much more severe.  The regulation provides as examples: disregard by a superior of customary superior-subordinate relationships, acts or omissions that endanger the security of the United States, acts or omissions that endanger the health and welfare of other members of the Air Force and deliberate acts or omissions that seriously endanger the health and safety of other persons.

AFI 36-3208 at 1.18.3 states a discharge under honorable conditions (general) should be granted if "an airman's service has been honest arid faithful" but "when significant negative aspects of the airman's conduct or performance of duty outweigh positive aspects of the airman's military record."  It further sates mere "unsatisfactory performance," such as not completing assigned duties and poor bearing and behavior, merits an honorable or general l discharge.  Prior to discharge for unsatisfactory performance, an airman must receive formal counseling about his deficiencies and provided the opportunity to overcome them. 

The applicant’s misconduct does not rise to the level of severity established in current regulations for an under other than honorable conditions.  The petty offenses of failing to go to and complete his duties did not produce serious bodily injury or death, abuse a position of trust, endanger the security of the United States, endanger health and welfare, in any way involve rape or sexual assault, or constitute a similar offense.  Indeed, the characterization of his offenses as petty indicates that they were of minor gravity.  As for the one instance of assault on another airman, the record demonstrates that that offense was not a factor leading to discharge.  Furthermore, it appears that many of the actions for which he was punished have causes that were not fully known or acknowledged at the time, related to illnesses or discrimination.  What is quite clear is that his conduct today would not warrant a discharge under other than honorable conditions.

Furthermore, current regulations require that the Board at discharge proceedings consider an airman's past contributions to the Air Force and his awards, decorations, and letters of commendation. No mention of such matters was made at his hearing. The resultant discharge therefore fails to reflect all of the information now considered pertinent to arriving at the proper decision.

The applicant’s undesirable discharge stands as an inequity and injustice.  His misconduct, viewed now in light of the broader circumstances and of the developments in discharge regulations, must be reconsidered.  The officers' concerns at the time centered on his deficient performance at work, for which current regulations permit a general-but not an under other than honorable conditions discharge.  His service overall fits more properly into today's standard for a General discharge: that the negative aspects of performance outweigh the positive.

Accordingly, a discharge of under honorable conditions (general) is warranted.

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

STATEMENT OF FACTS:

The applicant is a former member of the Air Force.  Data extracted from the military personnel record reflects that on 21 October 1953, he was notified to appear before a Board of Officers to determine whether or not he should be discharged from the Air Force for unfitness.  

Specifically, the Board was held to determine the applicant’s fitness after he had been tried by four Summary Courts-Martial:  failure to go, in Violation of Article 86, Uniform Code of Military Justice (UCMJ), Curfew violation and failure to go, in violation of Articles 92 and 86, UCMJ, failure to go, in violation of Article 86, UCMJ and assault upon two airman one with a coca cola bottle and one with hands, in violation of Article 126, UCMJ.  The applicant also receive an Article 15 for failure to go, in violation of Article 86, UCMJ.

On 29 October 1953, the Board recommended the applicant be discharged from the service due to unfitness and recommended he be furnished an undesirable discharge.  On 18 November 1953, the commander approved the recommendation of the Board.  He was discharged on 13 January 1954 with an undesirable discharge characterization.

On 3 December 1981, the Air Force Board for Correction of Military Records considered and denied the applicant’s request to upgrade his discharge.

On 4 February 2015, a request for post-service information and a request for a background check from the Federal Bureau of Investigations were forwarded to the applicant for response within 30 days (Exhibit C).  As of this date, no response has been received by this office.

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.  While counsel argues that under the current governing instruction, the applicant would have received a general discharge:  we disagree.  The applicant assaulted two of his fellow airman, in one instance, he used an object that could have caused serious bodily harm.  Had the applicant’s commander preferred charges to a special court-martial, the maximum sentence allowed would have been a bad conduct discharge, forfeiture of all pay and allowances and confinement for six months.  We find this conduct endangered the life of another Air Force member.  Accordingly, 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 evidence provided does not lead us to 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.

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 issues involved.  Therefore, the request for a hearing is not favorably considered.

THE BOARD DETERMINES THAT:

The applicant be notified the evidence presented did not demonstrate the existence of material error or injustice; the application was denied without a personal appearance; and 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-2015-00448 in Executive Session on 29 September 2015 under the provisions of AFI 36-2603:

	, Panel Chair
	, Member
	, Member

The following documentary evidence was considered:

	Exhibit A.  DD Form 149, dated 21 Jan 15, w/atchs.
	Exhibit B.  Applicant's Master Personnel Records.
	Exhibit C.  Letter, SAF/MRBR, dated 4 Feb 15.