RECORD OF PROCEEDINGS AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS IN THE MATTER OF: DOCKET NUMBER: BC-2010-03683 COUNSEL: NONE HEARING DESIRED: NO ________________________________________________________________ THE APPLICANT REQUESTS THAT: His under other than honorable conditions (UOTHC) discharge be upgraded to honorable. ________________________________________________________________ THE APPLICANT CONTENDS THAT: He is homeless, has no income or employment, and cannot access the Department of Veterans Affairs (DVA) benefits. He was advised at the time of discharge that his character of service would be upgraded to honorable after one year. In support of his appeal, the applicant provides a copy of his DD Form 214, Report of Separation from Active Duty, issued in conjunction with his 22 Oct 74 discharge. The applicant’s complete submission, with attachment, is at Exhibit A. ________________________________________________________________ STATEMENT OF FACTS: The applicant enlisted in the Regular Air Force on 5 Aug 71 and was progressively promoted to the grade of airman first class (A1C/E-3). The squadron commander initiated administrative discharge action against the applicant for misconduct, specifically, civil confinement. The underlying basis for this action was a conviction of aggravated assault by the District Court of the State of Montana with a sentence of not less than five years. After consulting with counsel and having been advised of his rights, the applicant exercised his right to a hearing before a board of officers. The board determined the applicant should be separated with an undesirable discharge, without Probation and Rehabilitation (P&R). The Numbered Air Force staff judge advocate recommended an undesirable discharge, without P&R. Based on the applicant being convicted by the civil court and under the Uniform Code of Military Justice (UCMJ) the maximum punishment for aggravated assault was confinement for a term in excess of one year. The discharge authority approved the undesirable discharge without P&R. The applicant was discharged under the provisions of AFR 39-12, on 22 Oct 74, by reason of misconduct – civil court conviction, with service characterized as UOTHC. He was credited with 2 years, 6 months, and 16 days of active duty service. Pursuant to the Board’s request, the Federal Bureau of Investigation, Clarksburg, West Virginia, provided an investigative report, which is attached at Exhibit C. On 31 Jan 11, a copy of the FBI report was forwarded to the applicant for comment. At that time, he was also invited to provide additional evidence pertaining to his activities since leaving the service (Exhibit D). However, 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. 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 during the discharge process. 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 the service was contrary to the provisions of the governing regulation, unduly harsh, or disproportionate to the offenses committed. We also find insufficient evidence to warrant a recommendation that the discharge be upgraded on the basis of clemency. We have considered the available evidence of record; however, considering his overall record of service, the FBI Report of Investigation, and the lack of post service information since his discharge, we are not persuaded that an upgrade of the characterization of his discharge is warranted. Therefore, in the absence of evidence to the contrary, we find no basis upon which 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-2010-03683 in Executive Session on 3 March 2011, under the provisions of AFI 36-2603: The following documentary evidence was considered: Exhibit A. DD Form 149, dated 30 Sep 10. Exhibit B. Applicant's Master Personnel Records. Exhibit C. FBI Report of Investigation. Exhibit D. Letter, AFBCMR, dated 31 Jan 11, w/atchs.