RECORD OF PROCEEDINGS
AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS

IN THE MATTER OF: 			DOCKET NUMBER: BC-2016-01681 

						COUNSEL:  NONE

						HEARING DESIRED:  NO

APPLICANT REQUESTS THAT:

His undesirable discharge be upgraded to honorable.  

APPLICANT CONTENDS THAT:

He was granted clemency by the pardon and parole board by the state of Kansas in 1969.  

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

STATEMENT OF FACTS:

The applicant initially entered the Regular Air Force on 1 November 1952.  

On 27 August 1954, the applicant was notified of his commander’s intent to recommend non-judicial punishment (NJP) under Article 15 of the Uniform Code of Military Justice (UCMJ) for failing to report to his place of duty.  The applicant waived his right to trial by court-martial and elected not to submit matters on his behalf.  The commander imposed punishment of grade reduction from Airman second class (A/2C) to airman third class (A/3C) and a reprimand.  

On 4 January 1955, the applicant’s records were forwarded to the Chief, Military Personnel Records Division, for review by the Air Force Discharge Review Board (AFDRB).  

On 25 March 1955, according to a journal entry in the District Court of Sedgwick County, Kansas, the applicant was found guilty of murder in the first degree and assessed the penalty of life imprisonment.  

On 22 April 1955, the applicant’s commander initiated action for an undesirable discharge from the Air Force.  Specifically, the reason for the action was due to his 25 March 1955 conviction.  

30 April 1955, the applicant was furnished an undesirable discharge, and was credited with two years and nine days of net service completed for pay purposes.  He lost 171 days.  

7 December 1955, the applicant initiated a DD Form 293, Application for Review of Discharge or Separation from the Armed Forces of the United States, requesting a thorough investigation of his case.  

13 January 1956, the applicant’s counsel was notified that the applicant’s records were forwarded to the AFDRB for a review of the type and nature of his discharge from the service.  

On 24 January 1956, the applicant was notified that the AFDRB carefully examined and reviewed all the facts of record in his case and found he was properly discharged and concluded that the evidence submitted was insufficient to warrant a change in the type or nature of his discharge.  Accordingly, the Secretary of the Air Force (SAF) directed his application appeal be denied.  

On 18 June 1969, the applicant was notified that his application for review of discharge and military records were forwarded to the AFDRB of the Secretary of the Air Force Personnel Council (SAFPC) for appropriate action.  

On 6 August 1969, the AFDRB reviewed the applicant’s case and concluded that a change in the type or nature of discharge was not warranted.  Accordingly, the SAF directed the applicant’s request be denied.  The case was forwarded to the Air Force Board for Correction of Military Records (AFBCMR).  

On 29 August 1969, the AFBCMR reviewed the case and determined no corrective action was required and denied the applicant’s request.  

On 8 June 1977, the applicant initiated a DD Form 293, requesting his discharge be upgraded to honorable and to have a personal appearance before the AFDRB.  

On 9 September 1977, the applicant was notified that his application for a review of his discharge from the service and the records in his case was referred to the AFDRB for action.  

On 26 October 1977, the applicant failed to appear for a hearing and the case was returned without action.  

On 4 April 1978, the applicant initiated a DD Form 293, to request an upgrade of his undesirable discharge to a general discharge.  

On 19 June 1978, the applicant was notified that his application for a review of his discharge was referred to the AFDRB.  

On 14 December 1978, the AFDRB convened to consider the applicant’s request to upgrade his other than honorable conditions discharge to a general discharge.  The Board concluded the discharge should not be changed.  
On 13 September 1978, the applicant was notified that his application for review of discharge and military records was forwarded to the AFDRB of the SAFPC or appropriate action.  

On 31 January 1979, the applicant was notified the AFDRB reviewed and considered all the facts of record in his case.  After thorough deliberation, the Board concluded that a change in the type or nature of his discharge was not warranted and his application was denied.  

13 September 1979, the applicant was notified that his application for review of discharge and military records was forwarded to the AFDRB of the SAFPC for appropriate action.  

On 11 October 1980, the applicant initiated a DD Form 293, to appeal for an upgrade of his discharge to general.  Specifically, he indicated his discharge should be upgraded because he was arrested while on duty and served fifteen years for a charge he did not commit and he did not have proper representation.  Since he was released and cleared by the State of Kansas of the charge against him, he do not see why the Air Force has denied his review of discharge.  He has been caused difficult trials and unjust hardships.  

On 2 February 1981, the applicant was notified the AFDRB reviewed his request for reconsideration to change his discharge and decided he did not submit sufficient new evidence to warrant a rehearing of his case.  The Board’s decision of 14 December 1978 remained firm.  

20 December 2000, the applicant was notified that his DD Form 293, was being returned because his requested action could not be accomplished by the AFDRB since his discharge was over 15 years old.  

On 7 February 2001, the applicant was notified that a response had not been received and if he desired a review of his case, he must complete a DD Form 149, Application for Correction of Military Record Under the Provisions of Title 10, US. Code, Section 1552.  

On 24 June 2016, a request for post-service information was forwarded to applicant for comment.  As of this date, no response has been received by this office (Exhibit D).  

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.  The applicant’s records reflect that since 1969, he has petitioned the Air Force Discharge Review Board (AFDRB), the Air Force Manpower and Personnel Center (AFMPC), and the BCMR on five separate occasions seeking an in-person hearing and did not show up or the review authority was unable to contact the applicant.  In each petition, the applicant was denied the same relief he seeks here.  

His request for an upgrade to an honorable discharge is based on his grant of clemency by the pardon parole board of the state of Kansas in 1969.  While the applicant states in his 1980 application to the AFMPC that he was “cleared” of the charges against him, being exonerated of an offense is far different than receiving clemency and parole, and there is no evidence seen in the record or anything provided by the applicant to suggest his conviction was overturned.  The applicant has not submitted any new evidence or information which tends to cast doubt on his discharge grade (reduced subject to an Article 15) and has not detailed any specific reason or basis why he believes his allegations warrant relief.  The passage of time since conviction or the grant of clemency by the pardon parole board of Kansas is not a sufficient justification for altering the discharge grade in this case.  There is no seen basis in the law to suggest the applicant has suffered any injustice warranting correction by the Board.  

A complete copy of the AFLOA/JAJM evaluation is at Exhibit C.

APPLICANT'S REVIEW OF AIR FORCE EVALUATION:

A copy of the Air Force evaluation was forwarded to the applicant on 9 February 2017 for review and comment within 30 days (Exhibit E).  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.  The applicant’s complete submission was thoroughly reviewed and his contentions duly noted; however, in our view, the Air Force office of primary responsibility (OPR) have conducted a thorough review of the evidence of record and we are in agreement with their opinion and recommendation.  In the interest of justice, we considered upgrading the discharge on the basis of clemency; however, in the absence of any evidence related to the applicant’s activities since leaving the service, we find no basis to recommend granting the relief sought on that basis.  In view of the foregoing, and in the absence of evidence to the contrary, we conclude that no basis exists to upgrade the applicant’s discharge.  

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-2016-01681 in Executive Session on 3 August 2017 under the provisions of AFI 36-2603:

					Panel Chair
					Member
					Member

The following documentary evidence was considered:

	Exhibit A.  DD Form 149, dated 14 April 2016.
	Exhibit B.  Applicant's Master Personnel Records.
	Exhibit C.  Memorandum, AFLOA/JAJM, dated 23 September  
                 2016.
	Exhibit D.  Letter, AFBMCR, dated 24 June 2016, w/atch.
	Exhibit E.  Letter, AFBMCR, dated 9 February 2017.