RECORD OF PROCEEDINGS

IN THE MATTER OF:	DOCKET NUMBER: BC-2016-03161

XXXXXXXXXXXXX	COUNSEL: NONE

	HEARING: NO

APPLICANT REQUESTS THAT:

Upgrade his “undesirable” (Under Other Than Honorable (UOTHC)) discharge characterization to “any classification to reflect a mental instability.”

APPLICANT CONTENDS THAT:

His discharge characterization is unfair because it was documented he was depressed and schizophrenic during his term of service.  The applicant’s complete submission is at Exhibit A.

STATEMENT OF FACTS:

On 27 Aug 69, the applicant received an UOTHC character of service discharge, having served one year, eleven months, and nine days of active service. 

On 10 Feb 83, the Air Force Discharge Review Board (AFDRB) denied the applicant’s appeal to upgrade his discharge to honorable.  They found the applicant’s complete military record had been lost and could not be reconstructed.  Because of the lack of information to the contrary, the Board found the discharge action was proper based on the presumption of regularity in the conduct of governmental affairs.  

On 6 Dec 16, AFBCMR forwarded a request for post-service information to the applicant for review and comment within 30 days.  As of this date, no response has been received by this office (Exhibit C).  

For more information, see the excerpt of the applicant’s record at Exhibit B and the advisories at Exhibits D, E, and F.

AIR FORCE EVALUATION:

AFBCMR Psychiatric Consultant does not provide a recommendation as the applicant’s discharge was not a result of his mental health condition.  However, she opines that the applicant’s assertion that the military was aware of his condition prior to enlistment is not correct, since his Report of Medical History on enlistment did not reveal any pre-existing problems.  Furthermore, during the previous DRB appeal, applicant’s counsel insisted that the applicant was a healthy individual prior to his military service.  She recommends obtaining an advisory from an appropriate subject matter expert.  The complete advisory is at Exhibit D.

AFLOA/JAJM recommends denying the application.  The applicant’s request is untimely and could be denied on this basis alone.  Notwithstanding timeliness, after reviewing the applicant’s file, there was no military justice actions.  He was administratively discharged in 1969 with an under other than honorable conditions (UOTHC) characterization after being convicted in a civilian state court of aggravated rape, for which he was sentenced to life imprisonment.  This conviction was upheld despite several appeals by the applicant.  They defer to AFPC/JA regarding legal sufficiency of the applicant’s administrative discharge action and service characterization.  The complete advisory is at Exhibit E.

AFPC/JA recommends denying the application.  The applicant makes multiple references to a court-martial throughout his request; the member was never subject to a court-martial, only a discharge board.  However, there is no record of the discharge board or the discharge action in the member’s records.  According to a memo dated 8 Sep 72 from the Chief of the Military Personnel Records Division, the applicant’s personnel records were lost following his civil court conviction on 22 May 69.  The applicant has previously filed a similar request with the Air Force Discharge Review Board (DRB).  On 12 Apr 83, the board denied the member’s application, stating in part that “because of the lack of information to the contrary, the Board finds that the discharge action was proper based on the presumption of regularity in the conduct of governmental affairs.”  It does not appear that the applicant has provided any information that was not available to the DRB in 1983.  The complete advisory is at Exhibit F.

APPLICANT’S REVIEW OF AIR FORCE EVALUATION:

The Board sent copies of the Air Force evaluations to the applicant on 12 Jul 18 for comment (Exhibit G), and the applicant’s response was received on 31 Jul 18 and 6 Aug 18.  In his response, the applicant agrees with the AFBCMR Psychiatric Consultant’s advisory that his discharge was not a result of his mental health condition, but was due to his civil conviction.  However, he contended the Air Force knowingly or inadvertently failed to thoroughly investigate all relevant and pertinent facts prior to his court martial, as well as in review of his DRB appeal.  He agrees with AFLOA/JAJM’s conclusion except that timeliness should not be factored into the finding.  He disagrees with AFPC/JA’s opinion that because of the lack of information to the contrary, the Board should find that the discharge action was proper based on the presumption of regularity in the conduct of governmental affairs.  The applicant’s complete response is at Exhibit H.

THE BOARD CONCLUDES THAT:

1.  The application was not timely filed.

2.  The applicant exhausted all available avenues of non-judicial relief before applying to the Board.

3.  After thoroughly reviewing all Exhibits, it is the Board’s opinion that the applicant is not the victim of an error and injustice.  The Board concurs with the rationale and recommendation of AFLOA/JAJM, and AFPC/JA, and finds that a preponderance of the evidence does not substantiate the applicant’s contentions.  The Board also notes 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, Air Force Board for Correction of Military Records (AFBCMR).  While the applicant asserts a date of discovery less than three years before the Board’s receipt of the application, the Board does not find the assertion reasonable.  The Board finds the application untimely and concludes it would not be in the interest of justice to excuse the delay.  Therefore, the Board recommends against correcting the applicant’s records.

THE BOARD RECOMMENDS THAT:

The applicant be informed the application was not timely filed; it would not be in the interest of justice to excuse the delay; and the application will only be reconsidered upon receipt of relevant evidence not already considered by the Board.

CERTIFICATION:

The following quorum of the Board, as defined in Air Force Instruction (AFI) 36-2603, Air Force Board for Correction of Military Records (AFBCMR), paragraph 1.5, considered Docket Number BC-2016-03161 in Executive Session on 21 Aug 18:

Panel Chair 
Panel Member
Panel Member

All members voted not to correct the record.  The panel considered the following:

Exhibit A:	Application, DD Form 149, w/atchs, dated 2 Aug 16.
Exhibit B:	Documentary evidence, including relevant excerpts from official records.
Exhibit C:	Clemency Letter, w/atch, AFBCMR, dated 7 Oct 16.  
Exhibit D:	Advisory opinion, BCMR Psychiatric Consultant, dated 20 Apr 18.
Exhibit E:	Advisory opinion, AFLOA/JAJM, dated 3 May 18.
Exhibit F:	Advisory opinion, AFPC/JA, dated 28 Jun 18.
Exhibit G:	Notification of Advisory, SAF/MRBC to applicant, dated 12 Jul 18.
Exhibit H:	Applicant’s response, received 31 Jul 18 and 6 Aug 18.

Taken together with all Exhibits, this document constitutes the true and complete Record of Proceedings required by AFI 36-2603, paragraph 4.11.9, pertaining to Docket Number BC-2016-03161.