RECORD OF PROCEEDINGS AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS IN THE MATTER OF: DOCKET NUMBER: BC-2011-03995 COUNSEL: NONE HEARING DESIRED: NOT INDICATED _________________________________________________________________ APPLICANT REQUESTS THAT: His under other than honorable conditions (UOTHC) discharge be upgraded to honorable. _________________________________________________________________ APPLICANT CONTENDS THAT: 1. He did not realize that he could request his discharge be upgraded. He had a house fire in 1965 that destroyed his discharge papers along with his General Equivalency Diploma (GED). After leaving the base, he stopped to get some groceries; however, after he got home (2:00 a.m.) the police came to his house and then took him to the police station. He was told that he was involved with two girls and was being charged with rape. He took a lie detector test and was told he passed the test. Since being discharged from the Air Force, he has a clean criminal record. He has worked for a trucking company and a car dealer. He also worked for C&C Railroad as a brakeman and was promoted to yard conductor. 2. In 1980, he had an accident and had surgery on his right knee. He was out of work for 8 months, and then went back to work, but in 1981, he reinjured his knee that required surgery. In 1982, he was disqualified from working as a yard conductor due to his injuries on his right knee. He has worked several other jobs until he was eligible to retire and begin collecting social security. His wife is in bad health and he stays home to care for her. In support of his request, the applicant provides a copy of his DD Form 214, Armed Forces of the United States Report of Transfer or Discharge. His complete submission, with attachments, is at Exhibit A. _________________________________________________________________ STATEMENT OF FACTS: The applicant enlisted into the Regular Air Force on 4 Dec 57. On 9 Apr 59, the applicant was tried by special court-martial for one charge of violation of the Uniform Code of Military Justice, Article 121; the specification was for wrongfully taking a camera from a fellow airman. He was found guilty of the specification and was sentenced to be confined at hard labor for two months, and to be reduced to the grade of airman basic. The applicant was notified by his commander that he was recommending him for discharge from the Air Force under the provisions of AFR 39-22. The specific reasons for this action were for being charged with statutory rape with a count contained in the charge for indecent liberties upon the person of a minor female child. The applicant pled guilty to the second count, that of taking indecent liberties with a minor child, and was found guilty. The charge of statutory rape was dismissed by the court. He was sentenced to 18 months probation and to pay costs of fifty dollars. The applicant received a UOTHC discharge on 23 Feb 61 after serving 3 years and 21 days on active duty. On 9 Mar 12, a request for information pertaining to his post- service activities was forwarded to the applicant for response within 30 days. In response to our request, the applicant provided post-service information, which is attached at Exhibit E. Pursuant to the Board’s request, the Federal Bureau of Investigation (FBI) provided a copy of an Investigative Report, which is at Exhibit C. On 9 Mar 12, a copy of the FBI report was forwarded to the applicant for review and comment within 30 days. 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. After careful consideration of the available evidence, we found no indication the actions taken to effect his discharge were improper or contrary to the provisions of the governing regulations in effect at the time, or the actions taken against the applicant were based on factors other than his own misconduct. In addition, in view of the contents of the FBI Identification Record we are not persuaded that the characterization of the applicant’s discharge warrants an upgrade to honorable on the basis of clemency. Having found no error or injustice with regard to the actions that occurred while the applicant was a military member, we conclude that no basis exists to grant favorable action on his request. 4. The applicant's case is adequately documented and it has not been shown that a personal appearance with or without counsel will materially add to our understanding of the issue involved. Therefore, the request for a hearing is not favorably considered. _________________________________________________________________ THE BOARD DETERMINES THAT: The applicant be notified that the evidence presented did not demonstrate the existence of material error or injustice; that the application was denied without a personal appearance; and that 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-2011-03995 in Executive Session on 17 Apr 12, under the provisions of AFI 36-2603: , Panel Chair , Member , Member The following documentary evidence was considered: Exhibit A. DD Form 149, dated 5 Oct 11, w/atchs. Exhibit B. Applicant's Master Personnel Records. Exhibit C. FBI Report. Exhibit D. Letter, AFBCMR, dated 9 Mar 12. Exhibit E. Letter, Applicant, dated 23 Mar 12. Panel Chair