RECORD OF PROCEEDINGS
AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS

IN THE MATTER OF: 			DOCKET NUMBER: BC-2015-03281

						COUNSEL:  NONE

						HEARING DESIRED:  NO 

APPLICANT REQUESTS THAT:

1.  His under other than honorable conditions (UOTHC) discharge be upgraded to honorable.  

2.  In a letter dated 15 Mar 16, the applicant amended his request to have his UOTHC discharge upgraded to general (under honorable conditions) rather than honorable.

APPLICANT CONTENDS THAT:

He was discharged due to a medical condition and was informed by Air Force doctors that they could operate on his leg condition; however, they could not guarantee he would walk normally again or be medically discharged.  He chose to be discharged, and only later found out it was characterized as UOTHC.  He had no negative actions against him while on active duty.

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

STATEMENT OF FACTS:

On 11 Jan 57, the applicant initially entered the Regular Air Force 

On or about 13 and 16 Sep 57, the applicant was absent from school from 0600-1200 hours.  For this misconduct, he received Article 15 punishment under the Uniform Code of Military Justice (UCMJ) and reduced in grade to airman basic.  

On or about 15 Sep 57, the applicant missed bed check at 2300 hours.

On or about 1 - 4 Oct 57, the applicant was absent from school.

On or about 6 – 7 Nov 57, the applicant failed to go at the time prescribed to his appointed place of duty.  For this misconduct, on 14 Nov 57, he was tried by summary court-martial under Article 86, UCMJ, for failure to go at the time prescribed to his appointed place of duty.  In addition, he was restricted to the limits of the base and to forfeit $50.00.

On or about 12 Nov 57, the applicant failed to repair.
 
On 3 Dec 57, the applicant was notified of his commander’s intent to recommend his discharge from the Air Force for unfitness, under the provisions of AFR 39-17, Discharge - Unfitness.  The specific reasons for the discharge action include unauthorized absences from school; missed bed check; failure to go at the time prescribed; failure to repair all in violation of various articles of the Uniform Code of Military Justice (UCMJ); for which he received Non-Judicial Punishment (NJP) under Article 15, Uniform Code of Military Justice (UCMJ), reduction in grade, forfeiture of pay, restrictions to the limits of the base, and a Summary Court-Martial.  Before recommending discharge, the commander noted the applicant had been repeatedly counseled by his Squadron Commander, Adjutant, First Sergeant, and his supervisory personnel in the squadron, with no apparent change in his behavior or attitude.  During counseling an effort was made to determine if he had any problems which would cause his negative attitude, all results were negative. The applicant acknowledged receipt of the notification of discharge.  After consulting with legal counsel, the applicant waived his right to appear before an administrative discharge board.

On 5 Dec 57, the applicant was referred for a psychiatric evaluation prior to separation.  The mental health provider opined there was no neuropsychiatric disease which would warrant separation under the provisions of AFM 35-4, (currently AFI 36-3212, Physical Evaluation for Retention, Retirement, and Separation).  It was noted the applicant’s motivation for entering the Air Force stemmed from difficulty with civilian authorities who gave him the choice between punishment from civilian court or enlistment into the military services.  Since in uniform his emotional problems have interfered to the point that he has insufficient motivation and personality strength to serve satisfactorily.  In addition, his continued military service would probably lead to more administrative problems.  

The discharge authority approved separation and directed the applicant be given an UOTHC discharge and furnished an undesirable discharge certificate.  

On 14 Feb 58, the applicant was furnished an UOTHC discharge, and issued an AF 258AF, Undesirable Discharge Certificate.  He was credited with 1 year and 29 days of active service.   

On 30 Nov 15, the Board staff offered the applicant an opportunity to provide information pertaining to his activities since leaving the service (Exhibit C).  As of this date, this office has not received a response.

AIR FORCE EVALUATION:

AFPC/DP2STM recommends denial indicating there is no evidence of an error or an injustice in the discharge processing.  The discharge was consistent with the procedural and substantive requirements of the discharge regulation and was within the discretion of the discharge authority. 

The applicant has not filed a timely petition.  It has been 57 years since the applicant’s discharge and he has not provided a valid reason for waiting so long to file a timely application. 

DP2STM recognizes that based on the length of time since the applicant was discharged, the Board could grant an upgrade based on clemency; and ask the Board only consider granting a general (under honorable conditions) discharge service characterization, if it is determined an upgrade is warranted.    

A complete copy of the AFPC/DP2STM evaluation is at Exhibit D.

AFPC/JA concurs with the recommendation of AFPC/DP2STM to deny the applicant’s request to upgrade his UOTHC discharge to honorable.

The applicant’s request for relief is not timely.  He has been aware of his separation and service characterization for more than 50 years, well over the three year limit for requesting relief from the AFBCMR.  He has submitted no information that would warrant a waiver of the untimely request, and such a waiver would not be in the best interests of the United States.  Moreover, the applicant has not carried his burden of showing that his records are erroneous or unjust.  The information provided in his BCMR application about his medical condition does not seem related to his misconduct.  The medical report completed at the time of his discharge indicates the applicant had a history of leg cramps, and had been diagnosed with Osgood-Schlatter’s disease.  The medical provider indicated that the only treatment for his condition was a limitation of activities, though in some cases an excision of (bone) fragments may be of value.  According to the medical records, both the medical provider and the applicant agreed that the surgery was not indicated at that time.   

The applicant denies any negative actions against him while on active duty.  However, a conviction in a summary court-martial as well as NJP would certainly constitute negative actions.

A complete copy of the AFPC/JA evaluation is at Exhibit E.

The BCMR Medical Advisor recommends denial, indicating the applicant has not met the burden of proof or an error or injustice that warrants a medical discharge or an honorable character of service.  

The Medical Consultant wishes to clarify that “unfitness” referred to in the applicant’s case has nothing to do with a compensable mental or physical impairment warranting a separation under AFR 35-4, but was likely a term that was congruent with todays’ use of “unsuitability” for military service to denote the existence of any non-compensable condition (i.e. character or behavior disorder and performance deficiencies).

The applicant entered military service with a pre-existing knee ailment, Osgood-Schlatter’s disease, a recognized cause of knee pain among adolescents.  The principle consulting provider did not believe the applicant’s knee ailment was of such severity to warrant a basis for discharge.  Additionally, given the fact that the applicant’s knee ailment existed prior to service and was not permanently aggravated by military service, he would not have been eligible for a compensable medical discharge.

The applicant believes his knee condition should have taken precedence over his misconduct as a basis for discharge, the Medical Consultant found no casual or mitigating relationship between the two so as to warrant expunging the current reason for discharge and supplanting it with a medical discharge; as would be the process taken into consideration via a “Dual-Action” review of his case by the Secretary of the Air Force Personnel Council (SAFPC). 

The UOTHC character of service was within the discretion of the discharge authority; noting the recurring unauthorized absences from duty were likely considered serious offenses.  

The Board may yet act within its authority to upgrade the applicant’s discharge to general (under honorable conditions) based on clemency and noting the mental health assessment that discloses he was likely an unsuitable candidate for continued service from a mental health perspective; which if discovered earlier (within 180 days of service) might have resulted in an entry-level separation with uncharacterized service.

A complete copy of the BCMR Medical Consultant evaluation, is at Exhibit F.

APPLICANT'S REVIEW OF AIR FORCE EVALUATION:

By letters dated 10 and 15 Mar 17, the applicant states he did not realize he was having that many problems adjusting to military life.  He enjoyed the drill team, but did not know it was making his knees hurt.  

He agrees with the findings of the AFBCMR, except for the fact that, “he was present when bed checks were done.  Specifically, he was shoveling coal into the furnace and was sleeping in a little room in the barracks at the time, a perk for having to shovel the coal.”

He does not want or need any benefits from the Department of Veteran’s Affairs (DVA), just his discharge upgraded to something above an UOTHC, so he can rest peacefully.

The applicant’s complete response, with attachment, is at Exhibit H.  

FINDINGS AND CONCLUSIONS OF THE BOARD:

Insufficient relevant evidence has been presented to demonstrate the existence of an error or injustice.  After a careful review of the applicant's contentions, documentation submitted in support of the request, and the available evidence of record, we are not convinced the applicant has provided sufficient evidence for us to conclude that he is the victim of an error or injustice.  We also note the applicant did not file the application within three years after the alleged error or injustice was discovered, or should have been discovered, as required by Title 10, United States Code, Section 1552 and Air Force Instruction 36-2603.  Therefore, because we do not find it would be in the interest of justice to recommend granting relief, and the applicant has offered no plausible reason for the delay in filing the application, we cannot conclude it would be in the interest of justice to excuse the failure to timely file the application.  Accordingly, we find the application untimely.

THE BOARD DETERMINES THAT:

The application was not timely filed and it would not be in the interest of justice to waive the untimeliness.  It is the decision of the Board, therefore, to reject the application as untimely.

The following members of the Board considered AFBCMR Docket Number BC-2015-03281 in Executive Session on 18 Oct 16, under the provisions of AFI 36-2603:

	Panel Chair
	Member
	Member

The following documentary evidence was considered:

	Exhibit A.  DD Form 149, dated 29 Jul 15, w/atchs.
	Exhibit B.  Applicant's Master Personnel Records.
	Exhibit C.  Letter, AFBCMR, dated 30 Nov 15, w/atch.
	Exhibit D.  Memorandum, AFPC/DP2STM, dated 15 Dec 15.
Exhibit E.  Memorandum, AFPC/JA, dated 19 Jan 16.
Exhibit F.  Memorandum, BCMR Medical Consultant, dated 
       4 Feb 16.
	Exhibit G.  Letter, AFBCMR, dated 19 Feb 16.
	Exhibit H.  Letter, Applicant, dated 10 Mar 16, w/atch.

Pursuant to paragraph 1 of AFI 36-2603 (Title 32 Code of Federal Regulations, Part 865.1), it is certified that a quorum was present at the Board's review and deliberations, and that the foregoing is a true and complete record of the Board's proceedings in the above entitled matter.