RECORD OF PROCEEDINGS

IN THE MATTER OF:	DOCKET NUMBER: BC-2021-02534

XXXXXXXXXXXXX	COUNSEL: NONE
	
	HEARING REQUESTED: NO

APPLICANT’S REQUEST

His general (under honorable conditions) discharge be upgraded to honorable.

APPLICANT’S CONTENTIONS

With the upgrade to his discharge, he will get an exemption for a portion of his property tax.  This will make a significant difference in his quality of life.

The applicant’s complete submission is at Exhibit A.

STATEMENT OF FACTS

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

On 30 Mar 65, the applicant’s commander recommended the applicant be discharged from the Air Force for Unfitness, under the provisions of AFR 39-17, Discharge of Airman Because of Unfitness.  The specific reasons for the action were:

a.	Between 13 Nov 64 and 28 Feb 65, the applicant was financially irresponsible on four occasions.

b.	On 23 Jul 64, the applicant received an Article 15 for failing to go at the time prescribed to his appointed place of duty and incapacitating himself for duty by prior indulgence in intoxicating liquors.  As a result, the applicant was demoted to the rank of airman basic suspended for 60 days and restricted to the military area of International Airport for a period of 30 days.

c.	On 5 Oct 64, the applicant was found guilty by Special Court-Martial for being found sleeping on his post while being posted as a sentinel.  As a result, the applicant was sentenced to forfeiture of $55 per month for 3 months and received a written reprimand.

d.	On 12 Oct 64, the applicant received an Article 15 for failing to go to his appointed place of duty at the time prescribed.  As a result, the applicant was ordered to perform 14 extra duty days and restricted to the military area of International Airport for a period of 14 days.

e.	On 10 Nov 64, the applicant received an Article 15 for failing to go to his appointed place of duty at the time prescribed.  As a result, the applicant was demoted to the rank of airman basic suspended for 60 days.

f.	On 20 Nov 64, the applicant’s commander vacated the suspended reduction to airman basic imposed by Article 15 action on 10 Nov 64 and ordered the reduction to airman basic be duly executed effective 20 Nov 64.

g.	On 14 Dec 64, the applicant received an Article 15 for failing to go at the time prescribed to his appointed place of duty.  As a result, the applicant was ordered into correctional custody for a period of 10 days during his non-duty hours only.

h.	On 29 Mar 65, the applicant plead guilty to possession of alcoholic beverages by a minor in City Court. 

On 18 Dec 64, the acting staff judge advocate found the discharge action legally sufficient.

On 4 May 65, the discharge authority directed the applicant be discharged for Unfitness, with a general (under honorable conditions) service characterization.

On 12 May 65, according to DD Form 214, Armed Forces of the United States Report of Transfer or Discharge, the applicant received a general (under honorable conditions) discharge.  His reason and authority is listed as SDN 488, which denotes “Unfitness.”  He was credited with 1 year, 9 months, and 21 days of total active service.

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

POST SERVICE INFORMATION

On 2 Dec 22, 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 (Exhibit C).  The applicant replied on 20 Dec 21 and provided an FBI report.  According to the report, the applicant was arrested on 11 Feb 71 for one charge of Grand Larceny.  In support of his request for clemency, the applicant provides a personal statement and numerous character statements.

Regarding his FBI report, he plead guilty to grand larceny and because he did not have a prior arrest record, the judge withheld adjudication and he received one-year probation. He has maintained a clean record since 1971.

He enlisted in the Air Force with a promise he would be in the electronics career field.  Instead, he was assigned to the “Air Police.”  He was, a young, immature, angry, resentful newly minted “cop,” who had no respect for authority.  Not surprising as everyone in uniform he previously encountered lied and misled him.  His general discharge was not a concern at the time because he did not consider the future ramifications.  He now understands the consequences.  The most significant is financial.  The Veterans Affairs awarded him a 100 percent disability rating, which would have qualified him for a major discount on his property taxes; however, he does not qualify with a general discharge.  His actions while in the Air Force were very immature; however, he firmly believes the Air Force is also responsible.  The lying, deception, and indifference all contributed to his attitude.

The applicant’s complete response is at Exhibit D.
 
APPLICABLE AUTHORITY/GUIDANCE

On 25 Jul 18, the Under Secretary of Defense issued supplemental guidance 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. 

AFI 36-3208, Administrative Separation of Airmen, describes the types of service characterization: 

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.

FINDINGS AND CONCLUSION

1.  The application was timely filed.  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 limitation 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.  Based on the available evidence of record, it appears the discharge was consistent with the substantive requirements of the discharge regulation and was within the commander’s discretion.  The applicant has provided no evidence that would lead the Board to believe his service characterization was contrary to the provisions of the governing regulation, unduly harsh, or disproportionate to the offenses committed. 

Nonetheless, in the interest of justice, the Board considered upgrading the discharge and contemplated the many principles included in the Wilke Memo to determine whether to grant relief based on fundamental fairness.  Furthermore, the Board considered the applicant’s post service conduct and achievements, length of time since the misconduct, his character and reputation, service to the community, job history and degree of contrition.  However, given the evidence presented, the Board determined relief is not warranted. Therefore, 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-2021-02534 in Executive Session on 29 Sep 22:

, 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/atchs, dated 27 Jul 21.
Exhibit B:	Documentary Evidence, including relevant excerpts from official records.
Exhibit C:	Letter, SAF/MRBC, w/atchs (Post-Service Request and Liberal Consideration  
                  Guidance), dated 2 Dec 21.
Exhibit D: Applicant’s Response, w/atchs, dated 20 Dec 21.

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.