RECORD OF PROCEEDINGS AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS. IN THE MATTER OF: DOCKET NUMBER: BC-2015-01650 COUNSEL: NONE HEARING DESIRED: NO APPLICANT REQUESTS THAT: His Under Conditions Other Than Honorable discharge be upgraded to General (Under Honorable Conditions). APPLICANT CONTENDS THAT: He plead guilty to stealing tires from a gas station while stationed at Minot AFB, North Dakota. That action resulted in being put on probation for several months. There is nothing else negative within his service record. He has been married for 47 years, raised 2 children and has been a law abiding and productive citizen since that incident. He feels he should receive the same relief his fellow Airman received. He was recently contacted by a fellow airman that was discharged for the same reason and on the same day he was discharged. Whereas, they both received an “Undesirable” characterization of service, his friend informed him that after petitioning the Air Force Discharge Review Board in 1965, his characterization of service was upgraded to General (Under Honorable Conditions). In support of his request, the applicant provided a letter from the fellow Airman that alleged his discharge was upgraded. The applicant’s complete submission, with attachments, is at Exhibit A. STATEMENT OF FACTS: On 4 Sep 62, the applicant entered the Regular Air Force. On 18 Jun 64, the applicant was convicted by the County of Ward, State of North Dakota of Grand Larceny in violation of Section 12-40-01, 12-40-03, and Section 12-40-04 of the North Dakota Century Code. On 8 Jul 64, the applicant’s commander recommended that he be discharged from the United States Air Force, under the provisions of AFR 39-22, Enlisted Personnel, Disposition of Individuals Convicted by Civil Court. The commander’s justification for this recommendation was based on a conviction by civil authorities of grant larceny, taking the personal property of another, to wit: Tires of the value of more than $100.00. The applicant was convicted and sentenced to ninety days in the Ward County Jail. On 11 Aug 64, the applicant was notified a Board of Officers was appointed to investigate possible discharge actions for misconduct. He acknowledged his right to counsel. On 24 Aug 64, a Board of Officers recommended the applicant be discharged with an undesirable discharge. They also recommended the discharge be suspended and that the applicant be place on probation for one year to offer him the opportunity to be rehabilitated. On 11 Sep 64, the Staff Judge Advocate reviewed the case and found it legally sufficient. On 22 Oct 64, the Vice Commander, 2nd Air Force, disapproved the Board of Officer’s recommendation to place the applicant on probation for the purpose of rehabilitation and directed his separation under the provisions of AFR 39-22. On 4 Nov 64, the applicant was furnished an Under Conditions Other Than Honorable discharge, and was credited with 2 years, 1 month, and 21 days of active service. A request for post-service information was forwarded to the applicant on 7 Feb 16 for review and comment within 30 days. As of this date, no response has been received by this office. The remaining relevant facts pertaining to this application are contained in the memorandum prepared by the Air Force office of primary responsibility (OPR), which is attached at Exhibit C. AIR FORCE EVALUATION: AFLOA/JAJM recommends denial indicating there is no evidence of an error or an injustice. After pleading guilty, the applicant was convicted of larceny in the Fifth Judicial District of North Dakota and was sentenced on 19 Jun 64 to ninety days in prison. The sentence was suspended on 21 Jun 64. Due to the conviction, on 13 Aug 64, a board consisting of three officers recommended that the applicant be discharged from the Air Force with an undesirable discharge. However, it was recommended that the undesirable discharge be suspended and that the applicant be placed on probation for a year so that he would be afforded an opportunity to be rehabilitated. On 15 Sep 64, the Convening Authority concurred with the findings and recommendations of the Board, except that he determined that the undesirable discharge should not be suspended due to the nature of the offense. According to the applicants’ DD Form 214, he was discharged on 4 Nov 64 with an under conditions other than honorable discharge. Although the term undesirable discharge was referred to in the discharge proceeding, this term was not reflected on the DD Form 214. The applicant’s discharge occurred over fifty years ago, so the application is untimely. A complete copy of the AFLOA/JAJM evaluation is at Exhibit C. APPLICANT'S REVIEW OF AIR FORCE EVALUATION: In response to the Air Force Advisory, the applicant argues that while there is nothing he can do about the timeliness of his application, the Board should focus on the fact his friend was convicted of the same crime, received the same discharge, yet later received a characterization of service upgrade. The only difference in their applications is the “Timely” factor. It would seem the far greater of the two factors should be the larceny conviction; which did not prevent his friend from receiving an upgrade. He petitions the Board to grant his request and upgrade his Under Conditions Other Than Honorable discharge to General (Under Honorable Conditions). A complete copy of the applicant’s letter is as Exhibit F. THE BOARD CONCLUDES THAT: 1. The applicant has exhausted all remedies provided by existing law or regulations. 2. The applicant was not timely filed. While the applicant claims a date of discovery of less than three years ago, in our view, the reasonable date of discovery of the alleged error or injustice was more than three years ago and the application is therefore untimely; 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 an 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 service was contrary to the provisions of the governing regulation, unduly harsh, or disproportionate to the offenses committed. While the applicant claims a fellow Airman that shared the same civilian conviction and type of discharge later received an upgrade, it is not supported by any documented proof. In the interest of justice, we considered upgrading the discharge based on clemency; however, in the absence of any evidence related to the applicant’s post-service activities, there is no way for us to determine if the applicant’s accomplishments since leaving the service are sufficiently meritorious to overcome the misconduct for which he was discharged. Therefore, in the absence of evidence to the contrary, we find no basis to recommend granting the relief sought. 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-2015-01650 in Executive Session on 8 Mar 16 under the provisions of AFI 36-2603: , Panel Chair , Member , Member The following documentary evidence pertaining to AFBCMR Docket Number BC-2015-01650 was considered: Exhibit A. DD Form 149, dated 14 Apr 15, w/atchs. Exhibit B. Applicant's Master Personnel Records. Exhibit C. Memorandum, AFLOA/JAJM, dated 18 Dec 15. Exhibit D. Letter, SAF/MRBR, dated 8 Jan 16. Exhibit E. Clemency Information Bulletin, undated. Exhibit F. Letter, Applicant, dated 1 Feb 16.