RECORD OF PROCEEDINGS
             AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS


IN THE MATTER OF:      DOCKET NUMBER: 01-01141
            INDEX CODE 110.00 110.02
            COUNSEL:  AMERICAN LEGION

            HEARING DESIRED:  YES

_________________________________________________________________

APPLICANT REQUESTS THAT:

His discharge be upgraded to honorable and  the  narrative  reason  for  his
discharge be changed.

_________________________________________________________________

THE APPLICANT CONTENDS THAT:

In essence, that his discharge be upgraded based on clemency.

The applicant states that he is 65 years of age and has been a good  citizen
since his service.  He has suffered from the stigma of a bad  discharge  for
over 45 years.  He feels that if God can forgive him so can the Air Force.

In support of the appeal,  applicant  submits  his  personal  statement  and
statements from friends and a co-worker.

Applicant’s complete submission is attached at Exhibit A.

_________________________________________________________________

STATEMENT OF FACTS:

On 21 April 1954, the applicant enlisted in the  Regular  Air  Force  for  a
period of four years at the age of 17.

On 5 November 1954, the applicant  was  tried  by  a  Special  Court-Martial
(SCM) for violation of Article 108 (i.e., damage of  military  property)  of
the Uniform Code of Military Justice (UCMJ) and pled guilty  to  the  charge
that he cut the reservation fence at Keesler AFB on 8 October 1954.  He  was
found guilty and sentenced to three months confinement  at  hard  labor  and
forfeiture of $55 per month for a period of three months.






On 2 February 1955, the applicant was  tried  by  a  SCM  for  violation  of
Article 86 (i.e., Absent Without Authority (AWOL)), UCMJ,  and  pled  guilty
to the charge  that  on  4 December  1954,  he  absented  himself  from  his
organization, without authority, and did not return until 19 December  1954.
 However, he pled not guilty to the charge  that  on  2  December  1954,  he
failed to go to at the time  prescribed  to  his  appointed  place  of  duty
(i.e., Hard Labor Roll Call).  He was found guilty of both charges  and  was
sentenced to six months confinement at hard labor and forfeiture of $55  per
month for six months.

On 21 March 1955, the applicant was tried by  a  General  Court-Martial  for
violation of Article 95 (i.e., resistance, breach  of  arrest  and  escape),
UCMJ, and pled guilty to the charge that on 14  February  1955,  he  escaped
from lawful confinement in the Base  Stockade.   He  was  found  guilty  and
sentenced  to  a  dishonorable  discharge,  forfeiture  of   all   pay   and
allowances, and confinement at hard labor for one year.

The applicant was discharged on 18 June 1955, under the  provisions  of  AFR
39-18 and GCM Order 34, with  service  characterized  as  dishonorable.   He
completed 8 months and 11 days of active service, with 168 days lost time.

Pursuant to the Board's request, the Federal Bureau of Investigation  (FBI),
Clarksburg, WV, has provided an Investigative Report that is at Exhibit G.

_________________________________________________________________

AIR FORCE EVALUATION:

The Separations Branch, AFPC/DPPRS,  reviewed  the  application  and  states
that the discharge  was  consistent  with  the  procedural  and  substantive
requirements of the discharge regulation.  In addition,  the  discharge  was
within the sound discretion of the discharge authority.  The  applicant  has
stated that he has been a good citizen since his discharge,  but  the  facts
regarding his discharge remain the same.  The applicant did not  submit  any
new evidence or identify any errors  or  injustices  that  occurred  in  the
discharge processing, nor has he provided facts  warranting  an  upgrade  of
his discharge.  Therefore, they recommend denial of his request.

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

_________________________________________________________________






APPLICANT’S REVIEW OF AIR FORCE EVALUATION:

The applicant reviewed the Air Force evaluation and states that he was  only
17 years of age at the time of the alleged misconduct.  He was confined  and
was never told or advised that he could appeal or request an upgrade of  his
discharge within  three  years  of  release.   He  feels  that  clemency  is
warranted because it is an injustice for  him  to  continue  to  suffer  the
adverse consequences of his discharge.

The applicant’s complete response is attached at Exhibit E.

The applicant’s counsel has reviewed the  evaluation  and  states  that  the
applicant’s submission, in conjunction  with  his  military  records,  amply
advance his  contentions  and  substantially  reflect  the  probative  facts
needed for equitable review.

Counsel’s complete response is attached at Exhibit F.

Complete  copies  of  the  FBI  Investigation  Report  and  the  Information
Bulletin - Upgrade of Discharge - Clemency were forwarded to  the  applicant
on 7 August 2001 for review and response with 30 days.  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.
Considered alone, we conclude that the  discharge  proceedings  were  proper
and that the characterization and reason for the discharge were  appropriate
to the existing circumstances.

4.  Consideration of this Board, however,  is  not  limited  to  the  events
which precipitated the discharge.  We have  a  Congressional  mandate  which
permits consideration of other factors; e.g.,  applicant’s  background,  the
overall   quality   of   service,   and    post-service    activities    and
accomplishments.  Further, we may base our decision  on  matters  of  equity
and clemency rather than simply  on  whether  rules  and  regulations  which
existed at the time were followed.  This is  a  much  broader  consideration
than officials involved in the discharge were permitted,  and  our  decision
in no way discredits the validity of theirs.

5.  Under our broader mandate and after careful  consideration  of  all  the
facts  and  circumstances  of  applicant’s  case,  we  are  persuaded   that
applicant has overcome the behavioral traits  which  led  to  the  contested
discharge and has been a productive member of  society.   We  recognize  the
adverse impact of the discharge applicant received; and, while it  may  have
been appropriate at the time, we  believe  it  would  be  an  injustice  for
applicant to continue  to  suffer  its  effects.   Although,  we  find  that
upgrading  the  applicant’s  dishonorable  discharge   to   general   (under
honorable conditions) is appropriate as a matter of equity and on the  basis
of clemency, we find insufficient evidence of a probable error or  injustice
to warrant changing the narrative reason for  his  discharge  and  upgrading
his discharge to fully honorable.

_________________________________________________________________

THE BOARD RECOMMENDS THAT:

The pertinent military records of the Department of the Air  Force  relating
to APPLICANT be corrected to show that on 18 June 1955,  he  was  discharged
with service characterized as general (under honorable conditions).

_________________________________________________________________

The following members of the Board considered this application in  Executive
Session on 2 October 2001, under the provisions of AFI 36-2603:

                  Mr. Thomas S. Markiewicz, Vice Chair
                  Ms. Diana Arnold, Member
                  Mr. John E. B. Smith, Member

The following documentary evidence was considered:

    Exhibit A.  DD Form 149, dated 19 Apr 01, w/atchs.
    Exhibit B.  Applicant's Master Personnel Records.
    Exhibit C.  Letter, AFPC/DPPRS, dated 10 May 01.
    Exhibit D.  Letters, SAF/MIBR, dated 15 Jun 01.
    Exhibit E.  DVA Form 21-4138, dated 14 Jun 01.
      Exhibit F.  Letter, Counsel, dated 28 Jun 01, w/atch.
      Exhibit G.  Letter, AFBCMR, dated 7 Aug 01, w/atchs.




                                   THOMAS S. MARKIEWICZ
AFBCMR 01-01141




MEMORANDUM FOR THE CHIEF OF STAFF

      Having received and considered the recommendation of the Air Force
Board for Correction of Military Records and under the authority of Section
1552, Title 10, United States Code (70A Stat 116), it is directed that:

      The pertinent military records of the Department of the Air Force
relating to APPLICANT, be corrected to show that on 18 June 1955, he was
discharged with service characterized as general (under honorable
conditions).








JOE G. LINEBERGER

Director

Air Force Review Boards Agency