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AF | BCMR | CY1999 | 9801471
Original file (9801471.doc) Auto-classification: Denied

                       RECORD OF PROCEEDINGS
         AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS

IN THE MATTER OF:      DOCKET NUMBER:  98-01471

            COUNSEL:  THE AMERICAN LEGION

            HEARING DESIRED:  YES


_________________________________________________________________

APPLICANT REQUESTS THAT:

His undesirable discharge should be upgraded to  at  least  a  general
(under honorable conditions) discharge.
_________________________________________________________________

APPLICANT CONTENDS THAT:

He has always assisted Veterans and now that  his  health  is  getting
worse, he needs help from the Department of Veterans Affairs (DVA).

In support of his request, the applicant submits a personal  statement
and character reference letters (Exhibit A).
_________________________________________________________________

STATEMENT OF FACTS:

Applicant's military personnel records reflect that he enlisted in the
Regular Air Force on 19 March 1948 for a period of three years.

On 23 December 1949, the applicant appeared in  civil  court  and  was
convicted upon his plea of guilty to robbery and sentenced to  one  to
three years in civil confinement.  On  14 February  1950,  applicant’s
commander recommended that he be discharged from the Air  Force  under
AFR 39-22 because he had been convicted  by  civil  authorities.   The
discharge authority approved the applicant’s discharge on 17  February
1950 and directed that he be issued an undesirable discharge.

The applicant received an undesirable discharge on  28  February  1950
under the provisions of AFR 39-22 (Civil Court  Conviction).   He  had
completed 1 year, 7 months and 7 days of active duty and  was  serving
in the grade of private at the time of discharge.  He had a  total  of
123 days of lost time.

Pursuant to the Board's request, the Federal Bureau of  Investigation,
Clarksburg, WV,  indicated on 28 September 1998, that, on the basis of
data furnished, they are unable to locate an arrest record.
_________________________________________________________________

AIR FORCE EVALUATION:

The Separations Branch, HQ AFPC/DPPRS, stated that the case  has  been
reviewed and the discharge was  consistent  with  the  procedural  and
substantive requirements of the discharge regulation,  it  was  within
the discretion of the  discharge  authority,  and  the  applicant  was
provided full administrative  due  process.   Although  the  applicant
stated he had nothing to do with the robbery, that he had only given a
ride to the two men who committed the robbery, DPPRS noted that he did
plea guilty to the crime and was found guilty in court.  The applicant
did not submit evidence  or  identify  any  errors  in  the  discharge
processing nor provide facts which warrant an upgrade of the discharge
he  received  over  48  years  ago.   Accordingly,  DPPRS  recommended
applicant’s request be denied.  A complete copy of this evaluation  is
appended at Exhibit C.
_________________________________________________________________

APPLICANT'S REVIEW OF AIR FORCE EVALUATION:

A copy of the Air Force evaluation  was  forwarded  to  applicant  and
counsel on 6 July 1998 for review and response.  As of this  date,  no
response has been received by this office (Exhibit D).
_________________________________________________________________

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 probable error or injustice.  No  evidence  has  been
presented to indicate that the applicant’s  service  characterization,
which had its basis  in  his  civilian  conviction,  was  improper  or
contrary to the governing regulation  under  which  it  was  effected.
Although the applicant  provided  documentation  regarding  his  post-
service activities, we find this information to be  of  limited  scope
and, in our view, it does not meet the criteria for a finding based on
clemency.   Should  the  applicant  provide  additional  documentation
pertaining to his post-service activities, the Board may be willing to
reconsider his request for clemency at a later time.  In view  of  the
foregoing, we conclude that no basis  exists  to  recommend  favorable
action on the applicant’s request that his  undesirable  discharge  be
upgraded to general.

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(s)   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 probable  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  this  application  in
Executive Session on 5 January 1999, under the provisions of  AFI  36-
2603:

                  Mr. Benedict A. Kausal IV, Panel Chair
                  Mr. Patrick R. Wheeler, Member
                  Mrs. Margaret A. Zook, Member

The following documentary evidence was considered:

   Exhibit A.  DD Form 149, dated 2 Apr 98, w/atchs.
   Exhibit B.  Applicant's Master Personnel Records.
   Exhibit C.  Letter, HQ AFPC/DPPRS, dated 19 Jun 98.
   Exhibit D.  Letter, SAF/MIBR, dated 6 Jul 98.




                                   BENEDICT A. KAUSAL IV
                                   Panel Chair


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