RECORD OF PROCEEDINGS
         AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS

IN THE MATTER OF:	DOCKET NUMBER:  BC-2003-01012
		INDEX CODE:  110.00

		COUNSEL:  NONE

		HEARING DESIRED:  NO

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APPLICANT REQUESTS THAT:

His undesirable discharge be upgraded to honorable under medical conditions.

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APPLICANT CONTENDS THAT:

He was only given credible service of 9 months and 27 days.  The problems with his military career started on 5 January 1949 when he fainted and was diagnosed with a heart murmur.  From that date forward he was in a medical hold status and awaiting his medical discharge.  He was told his records were lost several times delaying his separation from active duty.  He finally requested a separation because he no longer wanted to wait for his medical records to be found, after more than six months of waiting he accepted an undesirable discharge with the promise that it would be upgraded when his medical records were found.

He was never convicted by a civil court as written in the reason for separation on his undesirable discharge.  Based on this information he feels his records should be reviewed and his discharge corrected to reflect honorable under medical conditions as it should have been 52 years ago.  These facts are currently affecting his health and he would like them corrected before he passes away.

In support of the appeal, applicant submits a statement by his daughter.  Applicant's complete submission, with attachment, is at Exhibit A.

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STATEMENT OF FACTS:

Applicant enlisted in the Regular Air Force on 27 December 1948 in the grade of private for a period of three years.  He was promoted to the grade of private first class (PFC) on 29 March 1949.

A letter from applicant’s commanding officer dated 5 December 1949, requests he be discharged prior to expiration term of service (ETS) - reason - convicted by Civil Court on charge of burglary and larceny.

A letter from the Clerk of Circuit Court dated 1 December 1949, states applicant was indicted by the Grand Jury on 19 August 1949 and was arraigned in Circuit Court on 24 August, and plead not guilty.  Nature of offense was a Felony.  Punishment which could have been imposed for such an offense was one year to life.  He was paroled for one year.  The expiration of his parole was 12 September 1950.  He was adjudged to be a criminal, since the charge was Burglary and Larceny.

Records indicate he withdrew his plea of not guilty and plead guilty and made an application for probation, which was granted.

On 13 December 1949, the commanding general ordered applicant’s discharge under the provisions of AFR 39-22 (Conviction by Civil Court).  The commander stated that an Undesirable Discharge certificate would be rendered and that a request for special orders effecting the discharge would include the request for reduction to the grade of private.

The applicant, while serving in the grade of private, was discharged from the Air Force on 23 December 1949 under the provisions of AFR 39-22 (Conviction by Civil Court) with an undesirable discharge.  He served 9 months and 27 days of total active service.  He had 60 days lost time.

The Air Force Discharge Review Board (AFDRB) denied applicant’s request for an upgrade of his undesirable discharge to honorable on 5 April 1951.

Pursuant to the Board’s request, the Federal Bureau of Investigation, Clarksburg, West Virginia, indicated on the basis of the data furnished they were unable to locate an arrest record (Exhibit C).

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AIR FORCE EVALUATION:

BCMR Medical Consultant states that his condition did not interfere with completion of the physically demanding basic training and at the time of his separation physical examination no cardiac problems were recorded.  The significance of the murmur is unknown.  It could have represented either underlying heart disease, most likely from rheumatic fever several years before entering active duty, or have been an innocent functional heart murmur.  In either case the applicant’s heart murmur noted nine days after entering active duty existed prior to service and did not interfere with the performance of duty or cause his career to be cut short.  There is no evidence in the personnel file that he was in a casual status or medical hold status awaiting discharge for a medical disqualification, rather he completed basic training and entered technical school before he went absent without leave (AWOL) and was arrested.  The applicant’s heart murmur did not make him eligible for disability discharge since it existed prior to service, was not aggravated by service and the underlying cause (unknown) did not interfere with duty.  If such an evaluation were pending it would have resulted in administrative discharge without compensation for existing prior to service condition without service aggravation.  Regardless, the events of July 1949 leading to his subsequent undesirable discharge rendered him ineligible for evaluation in the disability system even if he had a condition that would have otherwise warranted such evaluation.

Action and disposition in this case are proper and equitable reflecting compliance with Air Force directives that implement the law.  Therefore, the BCMR Medical Consultant is of the opinion that no change in the records is warranted.

A complete copy of the evaluation is attached at Exhibit D.

AFPC/DPPRS states that they believe the discharge was consistent with the procedural and substantive requirements of the discharge regulation.  Additionally, the discharge was within the sound discretion of the discharge authority.  Therefore, they concur with the BCMR Medical Consultant and recommend denial of the applicant’s request.

A complete copy of their evaluation is attached at Exhibit E.

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APPLICANT'S REVIEW OF AIR FORCE EVALUATION:

The former member apologizes if his articles as a whole appear to be somewhat excessive, he always strives to be prudent in his choices of material to articulate in his presentation.  However, trying to be in compliance with the Information Bulletin, Upgrade of Discharge-Clemency, he has been somewhat overwhelmed with the intricate job of trying to keep everything relevant to his time in the service, which was dramatically shortened much to his dismay, and at the same time to cover a period of over 50 years without becoming enigmatic in his presentation.  It was a much larger task than he had figured on.  He hopes his choice of material will suffice.

Applicant's complete response, with attachments, is attached at Exhibit G.

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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.  Sufficient relevant evidence has been presented to demonstrate the existence of injustice with respect to the applicant’s service characterization.  Although no documentary evidence has been provided showing the actions taken to effect the applicant’s separation or the stated reasons for his discharge were erroneous, based on the evidence provided, we believe some relief is warranted in this case.  We are persuaded by the evidence provided that in the more than 50 years since his separation, the applicant has become a productive and law-abiding citizen of his community.  Therefore, we believe the continued imposition of an undesirable discharge would serve no useful purpose.  Accordingly, on the basis of clemency, his discharge should be recharacterized as general (under honorable conditions).  We do not find upgrading the discharge to fully honorable would be appropriate because of the short period of time the applicant served and the seriousness of his misconduct.

4.  Insufficient relevant evidence has been presented to demonstrate the existence of error or injustice with respect to the applicant’s request for a change to the reason for his separation to “under medical conditions.”  We have noted the applicant’s assertions concerning his medical condition in 1949 and do not find they are substantiated by the evidence he provided or the information in his military personnel records.  Therefore, we agree with the assessment by the BCMR Medical Consult concerning this issue and find we have no basis on which to favorably consider this portion of the applicant’s request.

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THE BOARD DETERMINES THAT:

The pertinent military records of the Department of the Air Force relating to APPLICANT be corrected to show that on 23 December 1949, he was discharged with service characterized as general (under honorable conditions).

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The following members of the Board considered this application, in Executive Session on 25 March 2004, under the provisions of AFI 36-2603:

All members voted to correct the records pertaining to Docket Number BC-2003-01012, as recommended.  The following documentary evidence was considered:

   Exhibit A.  DD Form 149, dated 3 Mar 03, w/atch.
   Exhibit B.  Applicant's Master Personnel Records.
   Exhibit C.  FBI Report.
   Exhibit D.  Letter, BCMR Medical Consultant, dated 18 Jul 03.
   Exhibit E.  Letter, AFPC/DPPRS, dated 20 Aug 03.
   Exhibit F.  Letter, SAF/MRBR, dated 29 Aug 03.
   Exhibit G.  Applicant's Response, dated 4 Oct 03, w/atchs.

                                   Panel Chair

AFBCMR BC-2003-01012
INDEX CODE:  110.00

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 23 December 1949, he was discharged with service characterized as general (under honorable conditions).

		Director
		Air Force Review Boards Agency