RECORD OF PROCEEDINGS

IN THE MATTER OF:	DOCKET NUMBER:  BC-2019-01872

XXXXXXXXXXX	COUNSEL:  NONE

 	HEARING REQUESTED:  NO

APPLICANT’S REQUEST

His discharge under other than honorable conditions (UOTHC) be upgraded to honorable.

APPLICANT’S CONTENTIONS

He needs an honorable discharge to obtain medical care and benefits from the Department of Veterans Affairs.  

The applicant’s complete submission is at Exhibit A.

STATEMENT OF FACTS

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

On 17 Dec 57, 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.  The specific reasons for the action were as follows:

	a. The applicant was counseled numerous times on his attitude, the manner of performance of his assigned duty, and his repeated tardiness in reporting for duty, with no noticeable improvement. 

	b.	On or about 18 Apr 55, he was 16 hours late reporting from pass.  For this misconduct, he received an Article 15 with a reduction in grade to airman basic (E-2).

	c.  On or about 15 Feb 56, he was found driving a government vehicle while under the influence of alcohol with no driver’s license and leaving the scene of an accident.  For this misconduct, he received an Article 15 with a reduction in grade to airman basic (E-1).

	d.  On 3 Apr 57, he was arrested by local police for being drunk on the streets and using profanity for which he was fined $30.

	e.  On 2 Jul 57, he was arrested by local police for being drunk on the streets for which he was fined $15.  

	f.  On or about 15 Jul 57 and again on 16 Jul 57, he failed to report to his designated place of duty.  For this misconduct, he received an Article 15 with a reduction in grade to E-1.

	g.  On 6 Nov 57, the applicant was convicted by Summary Court-Martial for participating in a breach of the peace by shouting and arguing in the squadron area and using profane language toward another Airman on or about 17 Oct 57.  He was sentenced to confinement at hard labor for 20 days and forfeiture of $65 pay.

	h.  On 6 Dec 57, he was arrested by local police for being drunk on the streets for which he was fined $15.
On 14 Jan 58, the discharge authority approved the recommendation.

On 17 Jan 58, the applicant received UOTHC discharge.  He was credited with 3 years, 2 months, and 21 days of active service.

On 9 Feb 59, he appealed to the Air Force Discharge Review Board (AFDRB) for an upgrade to his discharge to restore his military benefits.

On 20 Mar 59, the AFDRB concluded the discharge was equitable and proper and denied his appeal.

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

POST-SERVICE INFORMATION

On 29 May 19, the Board sent the applicant a request for post-service information, including a standard criminal history report from the Federal Bureau of Investigation (FBI), which the applicant provided on 5 Aug 19 (Exhibit D).  According to the report, the applicant was arrested on 27 Apr 63 for driving while intoxicated.

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 Jul 18, 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.  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.  In determining whether to grant relief on the basis of equity, an injustice, or clemency grounds, the Board should refer to the supplemental guidance, paragraphs 6 and 7.

The entire guidance can be found at Exhibit B.

FINDINGS AND CONCLUSION

1.  The application is timely.  Given the requirement for passage of time, all clemency requests are technically untimely.  However, it would be illogical to deny a clemency application as untimely, since the Board typically looks for over 15 years of good conduct post-service.  Therefore, the Board declines to assert the three-year limitations period established by 10 U.S.C. § 1552(b).

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

3.  After reviewing all Exhibits, the Board concludes the applicant is not the victim of an error or injustice.  It appears the discharge was consistent with the substantive requirements of the discharge regulation and was within the commander’s discretion.  Nor was the discharge unduly harsh or disproportionate to the offenses committed.  In the interest of justice, the Board considered upgrading the discharge based on clemency; however, given the lack of post-service evidence presented, the Board finds no basis to do so.  Should the applicant provide more expansive evidence of this nature, such as employment history, contributions to his community, and testimonials by friends and responsible citizens who know him, the Board would be willing to reconsider his petition.  Therefore, based on the available evidence of record, the Board recommends against correcting the applicant’s record.

RECOMMENDATION

The Board recommends informing the applicant the evidence did not demonstrate material error or injustice, and the Board will reconsider the application only upon receipt of relevant evidence not already presented.

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-2019-01872 in Executive Session on 2 Sep 20:

, Panel Chair 
, Panel Member
, Panel Member

All members voted against correcting the record.  The panel considered the following:

Exhibit A:	Application, DD Form 149, w/atch, dated 25 Jun 14.
Exhibit B:	Documentary evidence, including relevant excerpts from official records.
Exhibit C:	Clemency Bulletin, w/atchs, dated 29 May 19.
Exhibit D:	FBI Report, dated 5 Aug 19.

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