RECORD OF PROCEEDINGS
AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS

IN THE MATTER OF:	DOCKET NUMBERS:  BC-2004-02271
		INDEX CODE 106.00
	 	COUNSEL:  None

	 	HEARING DESIRED:  Yes

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APPLICANT REQUESTS THAT:

His 1958 Bad Conduct Discharge (BCD) with service characterized as Under-Other-Than-Honorable-Conditions (UOTHC) be upgraded.

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APPLICANT CONTENDS THAT:

He wants his discharge upgraded in recognition of the many years of distinguished service he has performed since the incident 46 years ago.  He suffers from Parkinson’s Disease and needs an upgraded discharge to obtain necessary medication.  He asserts he was a member of the US Coast Guard Auxiliary during the period 1971-1978, and has been a member of the Jewish War Veterans (JWV) for approximately 35 years.

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

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STATEMENT OF FACTS:

The following information was extracted from the applicant’s military personnel records and his court-martial records obtained from the National Archives through AFLSA/JAJM:

The applicant enlisted in the Regular Air Force on 31 Jul 56 for a period of four years and was promoted to airman third class on 9 Nov 56.  During the period in question, he was assigned to the 25th Bombardment Squadron at Schilling AFB, KS, as a technical mechanic and then as assistant crew chief.

On 9 May 57, a .38 caliber revolver was discovered missing from the Unit Supply.  Shortly thereafter, the applicant displayed a .38 caliber revolver to another airman.  On 27 May 57, an inventory of the same Unit Supply revealed three more .38 caliber revolvers were missing.   

Following an investigation and after being read his rights, the applicant provided a statement indicating he procured a key and took one .38 caliber revolver on 5 May 57.  A few evenings later, on 24 May 57, the applicant and another airman used a key to enter the Arms Room and took three .38 caliber revolvers.  One gun was given to a staff sergeant.  The guns were found in an automobile owed by another airman.

On 1 Jul 57, the applicant was charged with wrongfully appropriating a .38 caliber Smith & Wesson revolver, valued at more than $20.00, on or about 5 May 57, at Schilling AFB; and with stealing three .38 caliber Smith & Wesson revolvers, at a total value of more than $50.00, on or about 24 May 57, at Schilling AFB.  The charges and specifications were referred to special court-martial on 12 Jul 57.  At the time of the incident, the applicant was 18 years and 10 months of age.

On 18 Jul 57, the applicant pled guilty to and was found guilty of the charges and specifications and was sentenced to a BCD, $50.00 forfeiture in pay per month for six months, and confinement to hard labor for six months.  The applicant elected to remain silent and presented nothing on the merits; however, his counsel made an unsworn statement in mitigation and extenuation on the applicant’s behalf.  The court-martial panel recommended the applicant be sent to [Amarillo AFB, TX] for rehabilitation. 

On 19 Jul 57, a post-trial interview was conducted by the 802nd Air Base Group staff judge advocate (JAG) at Schilling AFB.  The JAG reported the applicant had been advised of his rights before giving a statement that he had found some .38 caliber ammunition in a car he had purchased locally and wanted to expend the ammunition.  He decided to obtain a .38 caliber gun from the Unit Supply.  In his attempt to return the gun, he informed two other airmen about his problem.  The two airmen became interested and suggested they go to the Gun Room, Unit Supply, to get three more and “divide them up.”  The applicant indicated he believed he had a fair trial and his appointed defense counsel (ADC) did all he could do and “did a very good job.”  The applicant indicated he wanted to stay in the Air Force at Schilling in his present career field and strongly did not want to go to Amarillo for retraining and rehabilitation.  The JAG recommended against sending the applicant to Amarillo and noted the applicant’s first sergeant and squadron did not want him returned to their unit. The JAG recommended the sentence adjudged be approved and ordered executed without further clemency.

Legal review by the Westover AFB JAG, on 19 Aug 57, determined there were no errors which materially prejudiced any substantial rights of the accused and the evidence of record was sufficient to sustain the findings.  The sentence was adjudged as appropriate, but the JAG recommended the punitive discharge be suspended for six months after the accused had served his -confinement at Amarillo AFB in order to extend an opportunity for rehabilitation and restoration.

On 23 Aug 57, the sentence was approved but the execution of the BCD was suspended for the period of confinement and six months thereafter, at which time, unless the suspension was sooner vacated, the suspended portion would be remitted without further action.

On 3 Dec 57, the unexecuted portion of the sentence pertaining to forfeitures only was remitted, effective 18 Dec 57.  The applicant was restored to duty on 18 Dec 57 with the BCD suspended to 18 Jun 58 with automatic remission.

According to Special Court-Martial Order No. 124, dated 5 May 58, so much of the order as suspended execution of the sentence to BCD was vacated pursuant to Article 72 and would be duly executed.  No further information is provided in the record.  Special Order No. R-72, dated 14 May 58, discharged the applicant with a UOTHC characterization of service effective 14 May 58.  He was issued a DD Form 259 AF, BCD.

Pursuant to the Board's request, the Federal Bureau of Investigation (FBI), Washington, D.C., provided an investigative report, which is attached at Exhibit C.  According to the report, the applicant appears to have been arrested on 4 Jul 58 for larceny and burglary, was found guilty and sentenced to five years of confinement.

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AIR FORCE EVALUATION:

HQ AFPC/DPPRS was unable to determine the propriety of the discharge based on the lack of documentation in the applicant’s master personnel records.  [Note:  Court-martial records were obtained for the Board’s review--see Exhibit B.]  DPPRS contends the applicant did not submit any evidence or identify any errors or injustices that occurred in his discharge processing.  They defer to the Board.

A complete copy of the evaluation is at Exhibit D.

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APPLICANT'S REVIEW OF AIR FORCE EVALUATION:

The applicant asserts two other individuals equally involved in the incident received lighter punishment.  He was provided incompetent counsel.  He was not informed of his right to have his own counsel.  His ADC told him to plead guilty to protect the other two because they were family men.  At the time of the incident he was only 18 years of age and basically alone in the world.  He did not understand his rights, the seriousness of the situation, or its future importance.  Today, the incident would have been handled much differently.  He asks the Board recognize his subsequent contributions to the safety and defense of his country and reverse this injustice.

A complete copy of applicant’s response is at Exhibit F.

The AFBCMR Staff invited the applicant to submit post-service information and also provided him a copy of the FBI report.  These letters are at Exhibits G and H.

The applicant indicates he started his own roofing business, which has operated continuously for 44 years.  He provides a certificate from the Coast Guard of his licensing and character references.  He’s been an active member of many charitable and fraternal organizations.  He has attempted to the best of his ability to be a good and honorable citizen.

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

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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.  After a thorough review of the evidence of record and the applicant’s submission, a majority of the Board is not persuaded his discharge should be upgraded.  In this regard, we found the applicant’s 14 May 58 discharge characterization appropriate and supported by the evidence of the record.  We also note he was arrested on 4 Jul 58 for larceny and burglary and was sentenced to five years of confinement, according to the FBI report.  However, the applicant apparently has had no problems with the law since then and he provided several supporting statements attesting to his character.  As the applicant has not demonstrated his BCD discharge was unjustified, the only basis for relief in this case would be clemency.  We commend the applicant for becoming a productive member of society.  However, the Board majority is unpersuaded his civilian activities have overcome his military performance and 1958 conviction sufficiently to warrant an upgraded discharge with the resultant benefits.  In view of the above, and absent persuasive evidence to the contrary, the Board majority finds no compelling basis on which to grant the applicant’s request.

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 issue(s) involved. Therefore, the request for a hearing is not favorably considered.
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RECOMMENDATION OF THE BOARD:

A majority of the panel finds insufficient evidence of error or injustice and recommends the application be denied.

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The following members of the Board considered this application in Executive Session on 12 January 2005 under the provisions of AFI 36-2603:

By a majority vote, the Board recommended denial of the application.  Ms. XXXXX voted to upgrade the discharge to general, but does not wish to submit a Minority Report.  The following documentary evidence relating to AFBCMR Docket Number BC-2004-02271 was considered:

   Exhibit A.  DD Form 149, dated 2 Jul 04, w/atchs.
   Exhibit B.  Applicant's Master Personnel Records.
   Exhibit C.  FBI Report.
   Exhibit D.  Letter, HQ AFPC/DPPRS, dated 2 Aug 04, w/atch.
   Exhibit E.  Letter, SAF/MRBR, dated 6 Aug 04.
   Exhibit F.  Letter, Applicant, dated 12 Aug 04.
   Exhibit G.  Letter, AFBCMR, dated 31 Aug 04.
   Exhibit H.  Letter, AFBCMR, dated 9 Sep 04.
   Exhibit I.  Letter, Applicant, dated 13 Sep 04, w/atchs.

AFBCMR BC-2004-02271

MEMORANDUM FOR	THE EXECUTIVE DIRECTOR, AIR FORCE BOARD FOR
			CORRECTION OF MILITARY RECORDS (AFBCMR)

SUBJECT:  AFBCMR Application of  

	After considering the evidence available for my review, I agree with the minority member of the panel that the applicant’s request to upgrade his bad conduct discharge (BCD) with service characterized as under other than honorable conditions (UOTHC) should be granted.

	While the applicant’s BCD may have been appropriate for the circumstances at the time, I note he has lived with its adverse effects for more than 46 years.  According to the FBI report, two months after his separation, while he still in his teens, he was arrested for larceny and burglary and sentenced to confinement.  Since that time, however, he has been a responsible citizen.  In fact, the Chief of Police in his hometown confirmed the applicant has been an outstanding resident for over 20 years and, to his knowledge, has never had a problem with any law enforcement.  In addition, I noted the applicant provided additional supporting statements attesting to his character and his being an asset to the community.

	Certainly I do not condone the behavior that led to his BCD; nonetheless, since it serves no useful purpose to the Air Force or to society in general to continue the nature of his discharge at this late date, it is my decision that the characterization of his discharge should be upgraded to general (under honorable conditions) on the basis of clemency.

AFBCMR BC-2004-02271

MEMORANDUM FOR THE CHIEF OF STAFF

	Having received and considered the recommendation of the Air Force Board for Correction of Military Records and under the authority of Section 1552, Title 10, United States Code (70A Stat 116), it is directed that:

	The pertinent military records of the Department of the Air Force relating to     , be corrected to show that on 14 May 1958, he was discharged with service characterized as general (under honorable conditions).