RECORD OF PROCEEDINGS
         AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS


IN THE MATTER OF:      DOCKET NUMBER:  98-02631
            INDEX CODE:  110.00

            COUNSEL:  NONE

            HEARING DESIRED:  UNKNOWN


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APPLICANT REQUESTS THAT:

His  undesirable  discharge  be  upgraded   to   general   under   honorable
conditions.

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APPLICANT CONTENDS THAT:

He completed the full four years of his enlistment and should not have  been
given an undesirable discharge because he was not discharged early.

Applicant's complete submission is attached at Exhibit A.

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STATEMENT OF FACTS:

Applicant’s complete military records  are  not  available.   Based  on  the
records available, the following information is provided.

On 10 January 1952, the applicant enlisted in the Regular Air  Force  for  a
period of four years.

Applicant was court-martialed twice, in 1952 and in 1954.  The first  court-
martial convicted the applicant of drunk and disorderly conduct,  for  which
he was reprimanded.  The  second  court-martial  found  that  the  applicant
caused an accident when he drove a government truck on  the  wrong  side  of
the road at an excessive speed, and the he left the scene of  the  accident.
The convening authority approved a sentence of hard labor for  three  months
and of forfeitures during that period.

On 21 November 1955, applicant’s  commander  recommended  he  be  discharged
from the Air Force.  On 25 November 1955, applicant  was  notified  of  this
recommendation, signed a waiver of his rights, and was  counseled  regarding
the meaning and effect of his waiver by the legal office.  It  appears  that
applicant’s  discharge  was  approved  and  that  he  was  directed  to   be
discharged by the commander 12th AF, Ramstein  AB,  Germany,  by  a  message
dated 1 February 1956.  Applicant was returned  to  the  United  States  and
separated from the service with an undesirable discharge at Manhattan  Beach
Air Force  Station,  Brooklyn,  NY  on  18  February  1956,  for  Traits  of
Character rendering retention in Service Undesirable.  At the  time  of  his
discharge, applicant was credited with three years, eight  months,  and  six
days service for pay purposes.

Pursuant to the  Board’s  request,  the  Federal  Bureau  of  Investigation,
Washington, D.C., provided an investigative  report  which  is  attached  at
Exhibit C.

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AIR FORCE EVALUATION:

The Deputy  Chief,  Military  Justice  Division,  AFLSA/JAJM,  reviewed  the
application and states that the applicant does not  raise  any  issues  with
regard to either of his courts-martial and they see none to  address.   They
state that it appears the actions were properly accomplished, and  that  the
applicant was afforded all rights granted by statute.  While they note  that
the applicant’s record shows time  lost  for  confinement,  which  may  have
extended his term of his original enlistment, they  express  no  opinion  on
the argument he presents, as it does not raise any military  justice  issue.
Therefore, they conclude there are not legal errors arising from the courts-
martial within the AFBCMR’s jurisdiction  requiring  corrective  action  and
that granting the applicant’s untimely request  on  the  basis  of  anything
pertaining to either court-martial is not warranted.   They  recommend  that
the  Board  refer  the  case  file  to  AFPC/JA  for  they  review   and   a
determination.

A complete copy of the evaluation is attached at Exhibit D

The Staff Judge Advocate, AFPC/JA, reviewed the application and states  that
the applicant’s claim is barred from review unless  he  can  establish  that
the three-year statute of limitations was tolled for over 40  years,  or  he
can show it is in the interest of  justice  for  the  Board  to  review  his
request despite the passage of time.  They state in  their  opinion  he  has
not shown either to be the case.

The applicant raises the novel argument that because he  served  four  years
in the Air Force, the Air Force was obligated to discharge him with no  less
than a general,  under  honorable  conditions  discharge.   They  state  the
applicant is wrong for two reasons.  First, airmen  who  have  served  their
full  enlistment  can  be  administratively  separated  with  less  than  an
honorable  discharge  if  they  are  notified  of  the  separation  and  the
administrative procedures, in effect at the time  of  their  discharge,  are
followed.  They state that  applicant’s  records,  though  sparse,  indicate
that procedural requirements in place in 1956 were  followed  in  his  case.
Second, the applicant is in error because he did not serve a full four  year
enlistment.   Contrary  to  applicant’s   beliefs,   enlistments   are   not
controlled by the passage of calendar years.  They  state,  enlistments  are
creatures of statute and, in applicant’s case, the termination of  his  four
year enlistment was governed by law that is now embodied at  10  USC  &  972
(formerly 10 USC & 629).  They state, under both the  current  and  the  old
statute, time an airman spent in confinement in  connection  with  a  court-
martial conviction was considered bad time and was added to the end  of  the
member’s  enlistment.   Thus,  in  connection   with   two   courts-martial,
applicant acquired 152 days of bad time which moved  the  end  of  his  four
year enlistment  from  10  January  1952  (the  fourth  anniversary  of  his
enlistment) to 11 June 1956.  They state that  the  lost  time  is  properly
recorded in his military records and on his  DD  Form  214  which  reflected
only three years, eight months, and six days of creditable  service  at  the
time of his discharge.  Thus, we are  of  the  opinion  that  applicant  has
failed  to  document  an  error  or  injustice  in  his  military   records.
Therefore, they recommend denial of applicant’s request.

A complete copy of their evaluation is attached at Exhibit E.

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APPLICANT'S REVIEW OF AIR FORCE EVALUATION:

Applicant reviewed the Air Force evaluations and states  that  he  performed
his duty well as a mechanic and there was not one complaint about his  duty,
nor was he AWOL.  He further states that he loved the Air Force and he  love
his country.  The four years in the Air Force was the  best  four  years  of
his 65 years of life.

Applicant's complete response is attached at Exhibit G.

Based on the limited records, applicant was notified that in  cases  similar
to his, documentation pertaining  to  post-service  activities  is  helpful.
Applicant,  in  response  to  the  Board’s  request,  provided  post-service
documentation which is attached at Exhibit H.

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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.     We  find  no  impropriety  in  the  characterization  of  applicant’s
discharge.   It  appears  that  responsible  officials  applied  appropriate
standards in effecting  the  separation,  and  we  do  not  find  persuasive
evidence that pertinent regulations were violated or that applicant was  not
afforded all the rights to which entitled at  the  time  of  discharge.   We
conclude,  therefore,  that  the  discharge  proceedings  were  proper   and
characterization  of  the  discharge  was  appropriate   to   the   existing
circumstances.

4.    We also find insufficient evidence to warrant  a  recommendation  that
the discharge be upgraded on the basis  of  clemency.   We  have  considered
applicant’s overall quality of service, the events  which  precipitated  the
discharge, and available evidence related  to  post-service  activities  and
accomplishments.  On balance, we do not believe that clemency is warranted.

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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.

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The following members of the Board considered this application in  Executive
Session on 19 August 1999, under the provisions of AFI 36-2603:

                 Mr. Thomas S. Markiewicz, Panel Chair
                 Mr. Grover L. Dunn, Member
                 Mr. Steven A. Shaw, Member
                 Ms. Phyllis L. Spence, Examiner (without vote)

The following documentary evidence was considered:

      Exhibit A. DD Form 149, dated 8 Sep 98, w/atchs.
      Exhibit B. Applicant's available Master Personnel Records.
      Exhibit C. FBI Report.
      Exhibit D. Letter, AFLSA/JAJM, dated 22 Dec 98.
      Exhibit E. Letter, AFPC/JA, dated 1 Feb 99.
      Exhibit F. Letter, AFBCMR, dated 15 Feb 99.
      Exhibit G. Applicant’s Response, dated 22 Feb 99.
      Exhibit H. Applicant’s Post-Service Documents.




                             THOMAS S. MARKIEWICZ
                             Panel Chair