RECORD OF PROCEEDINGS

IN THE MATTER OF:	DOCKET NUMBER: BC-2019-01016

XXXXXXXXXXXXXX	COUNSEL: NONE

	HEARING REQUESTED: YES

APPLICANT’S REQUEST

His undesirable discharge be upgraded to something of honor.

APPLICANT’S CONTENTIONS

He was denied a fair and impartial trial.  His appointed counsel was transferred, and a new counsel was appointed the day of his trial and did a poor job representing him.    

The applicant’s complete submission is at Exhibit A.

STATEMENT OF FACTS

The applicant is a former Air Force airman basic (E-1).  

On 27 January 1953, the applicant’s commander recommended he be discharged from the Air Force, under the provisions of AFR 39-17, Discharge of Airmen Because of Unfitness, for being tried by a summary court martial on two occasions for failure to obey a lawful order in violation of Article 92, Uniform Code of Military Justice (UCMJ) and for having in his possession another individual’s Pass with intent to deceive, in violation of Article 134 UCMJ.  In addition, he was punished four times under the provisions of Article 15, UCMJ.  

On 4 February 1953, the discharge action was found legally sufficient, and the discharge authority approved the recommendation on 12 February 1953.

On 20 February 1953, the applicant received an undesirable discharge. 

On 7 February 1955, the Air Force Discharge Review Board, recommended no change in the type discharge certificate presently in effect.  There was no additional evidence weight and credibility to warrant reversal of the prior 

For more information, see the excerpt of the applicant’s record and documentary evidence at Exhibit B.

POST-SERVICE INFORMATION

On 9 May 2019, the Board sent the applicant a request for post-service information and advised the applicant he was required to provide a Federal Bureau of Investigation (FBI) Identity History Summary Check, which would indicate whether or not he had an arrest record.  In the alternative, the applicant could provide proof of employment in which background checks are part of the hiring process.  The applicant reiterated that he did not receive a fair trial that resulted in his discharge.  However, following his discharge he returned to his job at a steel mill and worked there for 37 years until it closed in 1985.  He was subsequently sworn in by the sheriff and has worked as a Reserve Deputy for almost 30 years.  He also completed the State Peace Officer’s program and became an investigator with a Detective Agency until 2010.  In 2013, he retired from the Sheriff’s Department and is currently working as a security guard.  In support of his response, the applicant has provided a personal statement, proof of employment from the Office of the Sheriff, letters of support, character statements, certificates, commendations, and other documents to support his request.

The applicant’s complete response, with attachments, is at Exhibit D.
 
APPLICABLE AUTHORITY

AFR 39-17, Discharge of Airmen Because of Unfitness. Prior to 1959, AFR 39-17, mandated an undesirable discharge for any member found to be unfit.  In 1959, the regulation was changed to allow a general or honorable discharge for unfitness discharges where one of those service characterizations was more appropriate.  Those service characterizations were already in use (and defined) for separations that were accomplished under the authority of other separation regulations (such as AFR 39-10, Administrative Separation of Airmen).  Thus in 1959, it is clear that a conscious decision was made to use a more consistent approach to service characterizations.  Under these circumstances, the Air Force Review Boards Agency legal advisor strongly recommended that AFBCMR panels considering applications for service members separated under AFR 39-17 prior to 1959 should apply the post 1959 rules and correct the records to show a general or honorable service characterization where the record makes either characterization more appropriate than the undesirable discharge.  This is especially true since the meaning and impact of an undesirable discharge is very much unlikely to be understood so many years after it fell out of use.  Criteria for the issuance of an undesirable [under other than honorable conditions], general, or honorable discharge is outlined in AFI 36-3208, Administrative Separation of Airmen, below.  Notwithstanding the absence of error or injustice, the Board has the prerogative to grant relief on the basis of clemency if so inclined.

Honorable.  The quality of the airman’s service generally has met Air Force standards of acceptable conduct and performance of duty or when a member's service is otherwise so meritorious that any other characterization would be inappropriate. 

Under Honorable Conditions (General).  If an airman’s service has been honest and faithful, this characterization is warranted when significant negative aspects of the airman's conduct or performance of duty outweigh positive aspects of the airman's military record.

Under Other than Honorable Conditions.  When basing the reason for separation on a pattern of behavior or one or more acts or omissions that constitute a significant departure from the conduct expected of airmen.  The member must have an opportunity for a hearing by an administrative discharge board or request discharge in lieu of trail by court-martial.  Examples of such behavior, acts, or omissions include, but are not limited to:

•	The use of force or violence to produce serious bodily injury or death.
•	Abuse of a special position of trust.
•	Disregard by a superior of customary superior - subordinate relationships.
•	Acts or omissions that endanger the security of the United States. 
•	Acts or omissions that endanger the health and welfare of other members of the Air Force.
•	Deliberate acts or omissions that seriously endanger the health and safety of other persons.
•	Rape, sexual assault, aggravated sexual contact, abusive sexual contact, rape of a child, sexual assault of a child, sexual abuse of a child, forcible sodomy, and attempts to commit these offenses.

On 25 July 2018, the Under Secretary of Defense issued supplemental guidance (Wilke Memo) to military corrections boards in determining whether relief is warranted based on equity, injustice, or clemency.  These standards authorize the board to grant relief in order to ensure fundamental fairness.  Clemency refers to relief specifically granted from a criminal sentence and is a part of the broad authority Boards have to ensure fundamental fairness.  This guidance applies to more than clemency from sentencing in a court-martial; it also applies to any other corrections, including changes in a discharge, which may be warranted on equity or relief from injustice grounds.  In determining whether to grant relief on the basis of equity, an injustice, or clemency grounds, the Board should refer to the supplemental guidance.  This guidance does not mandate relief, but rather provides standards and principles to guide Boards in application of their equitable relief authority.  Each case will be assessed on its own merits.  The relative weight of each principle and whether the principle supports relief in a particular case, are within the sound discretion of each Board.  

The entire guidance can be found at Exhibit B.

FINDINGS AND CONCLUSION

1.  The application was timely filed.

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

3.  After thoroughly reviewing all Exhibits, it is the Board’s opinion that the applicant is the victim of an injustice.  After careful consideration of all the facts and circumstances of the applicant's case, to include review of the guidance on changing standards, the Board is persuaded the applicant’s post-service contributions warrant an upgrade based on clemency.  The applicant also provides character reference letters, letters of appreciation and awards attesting to his character and notable achievements since his discharge, to include gainful employment and service with the Sheriff’s Department. Therefore, based on the evidence in this case, the Board determines that it would be unjust for him to continue to endure the effects of the stigma attached to an undesirable discharge.  In view of the foregoing, the Board deems the interest of justice can best be served by removing this blemish from his life and upgrading his discharge to general (under honorable conditions) and changing his narrative reason for separation to “Secretarial Authority” on the basis of clemency.  The Board considered upgrading his discharge to honorable; however, the Board does not believe that an upgrade to fully honorable is warranted.  Therefore, the Board recommends the applicant’s records be corrected as indicated below.

4.  The applicant has not shown a personal appearance, with or without counsel, would materially add to the Board’s understanding of the issues involved.

RECOMMENDATION

The pertinent military records of the Department of the Air Force relating to APPLICANT be corrected to show that on 20 February 1953, he was discharged with service characterized as general (under honorable conditions), and a separation code and narrative reason for separation of JFF (Secretarial Authority).

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-2019-01016 in Executive Session on 28 May 2020.

, Panel Chair 
, Panel Member
, Panel Member

All members voted to correct the record.  The panel considered the following:

Exhibit A:	Application, DD Form 149, w/atchs, received 11 March 2019.
Exhibit B:	Documentary evidence, including relevant excerpts from official records.
Exhibit C:	Clemency Bulletin, w/atchs, dated 9 May 2019.
Exhibit D:	Post Service Information, received 8 August 2019.   

Taken together with all Exhibits, this document constitutes the true and complete Record of Proceedings regarding Docket Number BC-2019-01016, as required by AFI 36-2603, paragraph 4.11.9.