RECORD OF PROCEEDINGS AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS IN THE MATTER OF: DOCKET NUMBER: BC-2012-04971 COUNSEL: DISABLED AMERICAN VETERANS (DAV) HEARING DESIRED: NO ________________________________________________________________ APPLICANT REQUESTS THAT: 1. His undesirable discharge be upgraded to honorable or under honorable conditions (general). 2. Any necessary Department of Veterans Affairs (DVA) examinations be completed as soon as possible. ________________________________________________________________ APPLICANT CONTENDS THAT: He was young and naïve. He is 80 years old and has had time to look upon his faults and is truly sorrowful for his actions. He would like his discharge upgraded before his death. His family is not aware of the true character of his discharge. In support of his request, the applicant provides a personal statement, copies of his DD Form 214, Report of Separation from the Armed Forces of the United States, and a letter from his Disabled American Veteran National Service Officer. The applicant's complete submission, with attachments, is at Exhibit A. ________________________________________________________________ STATEMENT OF FACTS: On 7 Jan 53, the applicant enlisted in the Regular Air Force. On 26 Jan 56, the applicant was notified by his squadron commander that he was recommending his discharge from the Air Force for unfitness under the provisions of AFR 39-17, Enlisted Personnel Discharge Unfitness. The reasons for the proposed action were: 1) He was not amenable to discipline; 2) He had committed repeated offenses; and 3) He had been recommended for discharge by a board of medical officers not because of physical or mental disability but because he possessed an anti-social personality defect. The applicant also had the following court- martial convictions and punishments under Article 15: 1) On 11 Feb 55, he received a summary court-martial for failure to go, the punishment imposed was a forfeiture of $30.00 pay and restriction to his duty station; 2) On 25 Feb 55, he received a summary court-martial for breaking restriction, the punishment imposed was a forfeiture of $60.00 pay and confinement to hard labor for one month; 3) On 25 Jun 54, he received an Article 15 for failure to repair, and was reduced to the grade of airman basic; 4) On 8 Sep 54, he received an Article 15 for being absent without leave (AWOL), he received 14 days extra duty; 5) On 19 Jun 55, he received an Article 15 for being drunk and disorderly in a public place, he received seven days restriction; 6) On 4 Jul 55, he received an Article 15 for being drunk in a public place, and was reduced in grade to airman basic. On 26 Jan 56, the applicant acknowledged the action his commander was taking against him, and after consulting with counsel, waived his rights to appear before a board of officers and requested discharge without the benefit of board proceedings. He stated he understood that if his discharge was approved, his separation from the Air Force might be under conditions other than honorable and that he could receive an undesirable discharge. On 12 Mar 56, the applicant was notified that he was to appear before a board of officers to determine whether or not he should be retained in the service, he indicated that he would be represented by counsel, and requested witnesses be present at the meeting of the board. The board found that: 1) He had no mental or physical defects which would warrant a medical separation; 2) He was constantly involved in minor infractions of regulations and breaches of the peace which reflect discredit upon himself and the Air Force; 3) He had profited neither from experience, judicial and non- judicial punishment for his acts of misconduct; 4) Notwithstanding repeated attempts at rehabilitation by appropriate counseling agencies, he continued in his pattern of wayward conduct to such an extent that it could not be reasonably expected that he could become an effective airman, and recommended that he be discharged from the Air Force with an undesirable discharge. The base legal office reviewed the case and found it legally sufficient to support separation. On 17 May 56, the discharge authority approved the undesirable discharge, and on 28 May 56, the applicant was discharged under the provisions of AFR 39-17, with service characterized as undesirable. He served a total of 3 years, 3 months, and 21 days on active duty. On 26 Jun 13, a request for information pertaining to his post- service activities was forwarded to the applicant for response within 30 days (Exhibit C). In response to the request, the applicant states that he is almost 81 years old and his friends and relatives are not aware of his undesirable discharge. He also states that 60 years is a long time to keep a secret, and he would like this burden off his back. He had a drinking problem, but he never had any problems on base. He only got into trouble when he went into town and got drunk. He provides copies of his social security earnings and benefits statements, retirement paperwork, a property tax bill, and a Department of Veterans Affairs Annual Insurance Policy Statement. His complete response, with attachments, is at Exhibit D. At the time of the applicant’s discharge, AFR 39-17, paragraph 8, stated that when discharged because of unfitness, an Undesirable Discharge (UD) will be furnished. However, in 1959, AFR 39-17 was changed to state that an airman discharged under this regulation should be furnished an undesirable discharge, unless the particular circumstances in a given case warrants a general or honorable discharge. Criteria for the issuance of an undesirable, general, or honorable discharge is outlined in paragraph 9, AFR 39-10, Administrative Separation of Airmen (See Exhibit E). Attached at Exhibit F is a memorandum prepared by the Air Force Review Boards Agency Legal Advisor addressing the issue of characterization of service and how standards have changed since 1959. On 12 Sep 13, a copy of Legal Advisor’s opinion was forwarded to the applicant for review and comment within 30 days. To date, a response has not been received by this office (Exhibit G). ________________________________________________________________ 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. We took notice of the applicant's complete submission in judging the merits of the case; however, we find no evidence of an error or injustice that occurred in the discharge processing. Based on the available evidence of record, it appears the discharge was consistent with the substantive requirements of the discharge regulation, i.e., AFR 39-17, and within the commander's discretionary authority. At the time of the applicant’s discharge, AFR 39-17 stated that an undesirable discharge would be furnished; however, it was changed in 1959 to authorize general or honorable discharge characterizations depending on the particular circumstances in a given case. The applicant has provided no evidence which would lead us to believe the characterization of his service was contrary to the provisions of the governing regulation, unduly harsh, disproportionate to the offenses committed, or the particular circumstances in his case, to warrant an upgrade in the characterization of his service. In the interest of justice, we considered upgrading the discharge on the basis of clemency; however, without documentation from the Federal Bureau of Investigation indicating whether or not the applicant has an arrest record, we find no basis upon which to recommend granting the relief sought. Additionally, the applicant requests that any necessary DVA examinations be completed as soon as possible; however, this request does not fall within the purview of the Board. Therefore, no action will be taken regarding this portion of his request. ________________________________________________________________ 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 Docket Number BC-2012-04971 in Executive Session on 15 Aug 15 and 16 Oct 13, under the provisions of AFI 36-2603: , Panel Chair , Member , Member The following documentary evidence was considered: Exhibit A. DD Form 149, dated 15 Oct 12, w/atchs. Exhibit B. Applicant's Master Personnel Records. Exhibit C. Letter, AFBCMR, dated 26 Jun 13. Exhibit D. Letter, Applicant, not dated, w/atchs. Exhibit E. Excerpts, AFR 39-17 and AFR 39-10. Exhibit F. Memorandum, AFRBA Legal Advisor, dated 17 Apr 07. Exhibit G. Letter, SAF/MRBC, dated 12 Sep 13. Panel Chair