RECORD OF PROCEEDINGS
             AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS


IN THE MATTER OF:      DOCKET NUMBER:  98-02125

            COUNSEL:  AMERICAN LEGION

            HEARING DESIRED:  YES



APPLICANT REQUESTS THAT:

His discharge be upgraded.


APPLICANT CONTENDS THAT:

At the time the discharge action was initiated against him, he  thought  the
Board of Officers would give him a general discharge.   When  he  discovered
that he was to receive an undesirable discharge,  he  requested  not  to  be
discharge, even if it meant  a  court-martial.   However,  his  request  was
denied.  He should have been  given  a  general  discharge,  or  allowed  to
appear in court.

The applicant’s complete submission is attached at Exhibit A.


STATEMENT OF FACTS:

On 25 January 1972, the applicant enlisted in the Regular Air  Force  for  a
period of 4 years.

The Airman Performance Report  (APR)  rendered  on  the  applicant  for  the
period 27  October  1972  through  19  February  1973  reflects  an  overall
evaluation of “2”.

On 8 March 1973, the commander notified  the  applicant  of  his  intent  to
impose nonjudicial punishment under Article 15  of  the  Uniformed  Code  of
Military Justice (UCMJ) for violation  of  Article  86.   Specifically,  for
failing to go at the time prescribed to his appointed place of duty on 1,  2
and 7 March 1973.  The applicant waived his  right  to  a  trial  by  court-
martial and accepted the nonjudicial punishment.  The  punishment  consisted
of reduction to the grade of airman and forfeiture of $50.00 per  month  for
two months.  The applicant did not appeal the punishment.

On 4 April 1973, the commander notified  the  applicant  of  his  intent  to
impose nonjudicial punishment under Article 15 of the  UCMJ  for  violations
of Articles 111 and 121.  Specifically, for steeling two  one  dollar  bills
on 21 February 1973, and for operating a vehicle in  a  reckless  manner  by
driving at excessive speeds on 14  March  1973.  The  applicant  waived  his
right to a trial by court-martial and accepted the  nonjudicial  punishment.
The punishment consisted of reduction to  the  grade  of  airman  basic  and
order to correctional custody for a period of 30 days.   The  applicant  did
not appeal the punishment.

On 16 April 1973, the commander notified the  applicant  of  his  intent  to
impose nonjudicial punishment under Article 15 of the  UCMJ  for  violations
of Articles 128, 134 and  108.   Specifically,  for  assaulting  a  security
policeman, communicating a threat and destruction  of  government  property.
The applicant waived his right to a trial by court-martial and accepted  the
nonjudicial punishment.  The punishment consisted of 14 consecutive days  of
extra duty.  The applicant did not appeal the punishment.

On 30 April 1973, the commander notified the  applicant  of  his  intent  to
initiate discharge action under the provisions of AFM 39-12 (Unfitness)  for
frequent involvement with military authorities.  The applicant requested  an
administrative discharge board.

A Board of Officers convened on 31 May 1973 and  recommended  the  applicant
be discharge because of unfitness with a general discharge, with  a  further
recommendation that he be  considered  for  rehabilitation  procedures  with
conditional suspension of the discharge.

The applicant was Absent Without Leave (AWOL) during  the  periods  14  June
1973 to 26 June 1973 and 5 July 1973 to 9 July 1973.

On  10  July  1973,  he  was  charged  with  3  violations  of  Article  86.
Specifically, for being AWOL on 14 June 1973,  for  failing  to  go  to  his
place of duty at the prescribed time on 2 July 1973, and for being  AWOL  on
5 July 1973.  On that same date, he was referred to trial by summary  court-
martial.

After consulting with military counsel,  on  12  July  1973,  the  applicant
requested discharge for the good of the service under the provisions of  AFM
39-12.  The applicant acknowledged that, if approved, he  could  receive  an
undesirable discharge under conditions other than honorable,  regardless  of
the recommendation of his commander.

On 17 July 1973, the applicant requested that his application for  discharge
be withdrawn.  The applicant indicated his reason for doing so was  that  at
the time of his request, it was his belief that his wife  was  agreeable  to
his receiving an  undesirable  discharge.   However,  after  discussing  the
matter at length, he and his wife  decided  that  an  undesirable  discharge
would severely prejudice their future.  The applicant  also  indicated  that
he  was  willing  to  serve  whatever  time  the  court  deemed  appropriate
punishment and desired to complete his term of service with honor.

On  2  August  1973,  the  discharge  authority  directed  the   applicant’s
discharge, with service characterized as undesirable.

On 7 August 1973, the applicant was discharged under the provisions  of  AFM
39-12 (Request for Discharge for the Good of the Service).  His service  was
characterized as other than honorable, and  he  was  issued  a  Reenlistment
Eligibility (RE) code of 2.  The applicant completed 1 year, 6  months,  and
1 day of active service.

Pursuant to the Board’s request, the Federal Bureau of Investigation  (FBI),
Washington, DC, was requested to provide  an  investigative  report  on  the
applicant.  However, they have indicated that  on  the  basis  of  the  data
furnished, they are unable to locate an arrest record on the applicant.


AIR FORCE EVALUATION:

The Separations Branch, AFPC/DPPRS, reviewed  this  application  and  states
that there are no errors or  irregularities  causing  an  injustice  to  the
applicant. The discharge complies with directives in effect at the  time  of
his discharge.  The records indicate the applicant’s  military  service  was
reviewed and appropriate action was taken.  The applicant did  not  identify
any specific errors in the discharge  processing  nor  provide  facts  which
warrant an upgrade of  the  discharge.   If  his  request  to  withdraw  his
application for discharge was approved, he could have been  sentenced  to  a
bad conduct discharge  by  the  court-martial.   Therefore,  they  recommend
denial of applicant’s request.

A complete copy of the Air Force evaluation is attached at Exhibit C.


APPLICANT'S REVIEW OF AIR FORCE EVALUATION:

The applicant’s counsel reviewed the Air Force evaluation  and  states  that
the applicant  maintains  that  his  youth  and  immaturity  diminished  his
ability to serve, and requests the Board  consider  clemency  in  his  case.
The applicant has since become a solid citizen  in  his  community  and  has
suffered the effects of an other than  honorable  conditions  discharge  for
many years.  He was married at the time of his military service  and  family
problems associated with the marriage were  partially  responsible  for  his
acts of misconduct.  Counsel contends the  discharge  was  too  harsh.   The
applicant  was  recommended  for  a  general   discharge   following   board
proceedings.  Although the finding was suspended,  in  the  hopes  that  the
applicant could be rehabilitated,  he  clearly  could  not  conform  to  the
strict military standards.  Counsel  states  that  applicant  has  become  a
solid citizen in his community and requests  the  Board  favorably  consider
the application on the basis of clemency.

Counsel’s complete response is attached at Exhibit F.

The applicant was advised on 18 December 1998,  that  in  cases  similar  to
his, documentation regarding his post-service activities would  be  helpful.
The applicant was provided a period of 30-days to provide such  information;
however, 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.     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  note
that  applicant’s  request  to  withdraw  his  request  for  discharge   was
considered and denied by the discharge authority.  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.  Based on the evidence of record, we cannot  conclude  that
clemency is warranted.  Although the  applicant  was  requested  to  provide
information regarding his post-service activities  and  accomplishments,  he
has not provided such evidence.  While the applicant’s counsel  states  that
applicant has become a solid citizen in his community,  in  the  absence  of
evidence regarding applicant’s post-service activities,  we  are  unable  to
conclude that he  has  overcome  the  behavioral  traits  which  caused  the
discharge.  Should applicant provide the information requested,  this  Board
will reconsider his case based on the new  evidence.   We  cannot,  however,
recommend approval based on the current evidence of record.

5.    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 8 March 1999, under the provisions of AFI 36-2603:

                  Mr. Terry A. Yonkers, Panel Chair
                  Mr. Clarence D. Long, III, Member
                  Ms. Rita J. Maldonado, Member

The following documentary evidence was considered:

      Exhibit A.  DD Form 149, dated 28 Jul 98, w/atch.
      Exhibit B.  Applicant's Master Personnel Records.
      Exhibit C.  Letter, AFPC/DPPRS, dated 23 Sep 98.
      Exhibit D.  Letters, SAF/MIBR dated 12 Oct 98.
      Exhibit E.  Letter, Counsel, dated 22 Oct 98.
      Exhibit F.  Letter, Counsel dated 10 Dec 98.
      Exhibit G.  Letter, AFBCMR, dated 18 Dec 98.




             TERRY A. YONKERS
                                  Panel Chair