RECORD OF PROCEEDINGS
             AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS


IN THE MATTER OF:                       DOCKET NUMBER:  00-02720
                                        INDEX CODE:  110.02
                                        COUNSEL:  NONE

                                        HEARING DESIRED:  NO

_________________________________________________________________

APPLICANT REQUESTS THAT:

1.  Her husband’s dishonorable discharge be upgraded to honorable.

2.  Her husband’s military service be changed  from  the  Army  to  the  Air
Force.

3.  Her husband’s date of discharge be corrected  to  reflect  that  he  was
discharged in 1946 versus 1950.

4.  Her husband’s name be corrected from Jack Nishnick to John Niznik.

_________________________________________________________________

APPLICANT CONTENDS THAT:

Her husband was a respected employee and was active in church and  community
affairs.  Since submitting  her  application  he  has  passed  away  due  to
degenerative brain disease.  His  dishonorable  discharge  has  no  apparent
support.  His Social Security  Administration  (SSA)  statement  of  earning
show that he was employed  during  the  1946  –  1950  timeframe,  the  same
timeframe military documents show that he was confined.

In support of her request, applicant provides a copy of her husband’s  birth
certificate; SSA itemized statement of earnings; a  copy  of  her  husband’s
certification of military service; a statement from her husband’s  physician
with related medical documents and a copy of her  Power  of  Attorney.   The
applicant’s complete submission, with attachments is at Exhibit A.

_________________________________________________________________

STATEMENT OF FACTS:

The former member’s records were destroyed by fire in 1973 at  the  National
Personnel Records Center, St. Louis, MO.  As a result, the following is  the
only known  information  pertaining  to  the  applicant’s  service  and  was
extracted  from  the  partially  reconstructed  record  and  from  documents
provided by the applicant.

The former member enlisted in the Army of the United States Air Corp  on  24
February 1942.  On 23 January 1945,  he  was  convicted  by  general  court-
martial of stealing $105 and of unlawful possession of ration  coupons.   He
was sentenced to be confined for 5 years, to forfeit all pay and  allowances
and to a dishonorable discharge.   On  9  November  1945,  his  sentence  to
confinement in excess of two and half years was remitted  by  order  of  the
Secretary of War.

The remaining relevant facts pertaining to this application, extracted  from
the applicant’s military records, are contained in  the  letter(s)  prepared
by the appropriate offices of the Air Force at Exhibits C, D &E.

Pursuant to the Board’s request for information, the FBI indicated that,  on
the basis of the evidence provided, they were unable  to  locate  an  arrest
record pertaining to the former member (see Exhibit G).

_________________________________________________________________

AIR FORCE EVALUATION:

AFLSA/JAJM recommends the application  be  denied.   JAJM  states  that  the
former member was convicted,  contrary  to  his  pleas,  by  general  court-
martial, of stealing $105 and of  unlawful  possession  of  ration  coupons.
JAJM states that based on the applicant’s prior  history  of  misconduct,  a
court-martial was an appropriate  forum  to  deal  with  his  conduct.   The
applicant’s requests to overturn or void her husband’s court-martial  felony
conviction and upgrade of his discharge from dishonorable to  honorable  are
without merit.  With respect to his service date, JAJM  states  that  it  is
certainly within the  realm  of  possibility  that  the  former  member  was
released from confinement in 1946 and his discharge was not  executed  until
1950 due to either appellate review or some other reason.  Absent any  other
evidence presented by the applicant, there is a  presumption  of  regularity
in such proceedings (see Exhibit C).

AFPC/DPSAMP recommends the application be denied.  DPSAMP  states  that  the
birth  certificate  the  former  member  provided  during   his   enlistment
indicates that the former member was born on 17 February 1921 as  “       .”
Although “    ” appears in parenthesis  on  the  birth  certificate,  it  is
their rationale that it appears for pronunciation  purposes.   There  is  no
evidence that Mr.         legally assumed the name “      ”  before  he  was
discharged from the Army Air Corps (see Exhibit D).

AFPC/DPPR recommends the application  be  partially  granted.   DPPR  states
that the SSA-2826 records show that  the  former  member  had  earned  wages
during the period October 1946 through 23 January 1950; the same  period  he
was supposedly in confinement.  DPPR states  that  based  on  this  evidence
they recommend changing his statement of service date  to  reflect  that  he
was discharged effective 29 October 1946 (see Exhibit E).

_________________________________________________________________

APPLICANT'S REVIEW OF AIR FORCE EVALUATION:

Copies of the Air Force evaluations were forwarded to the  applicant  on  20
April 2001.  Applicant responded by  requesting  a  copy  of  her  husband’s
personnel record.  On 13 July 2001,  the  application  was  administratively
closed.  On 23 July 2001, applicant  requested  her  case  be  reopened  and
clemency consideration  be  given  to  upgrade  her  husband’s  dishonorable
discharge to honorable (see Exhibit H).

_________________________________________________________________

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  with  respect  to  the  former
member’s  branch  of  military  service;  name  change  from              to
    and upgrade of his discharge.

       a.  We  are  not   persuaded   by   the   evidence   presented   that
recharacterization of the former member’s discharge is warranted.  During  a
time of war, the former member  was  tried  and  convicted  of  larceny  and
wrongful possession of a gas ration  book.   His  sentence  was  within  the
maximum allowable under the Articles of War.   Other  than  her  assertions,
the applicant has provided no evidence showing her  husband  was  improperly
tried or that his discharge was excessive.  We are mindful of the fact  that
more than 50 years has elapsed  since  his  discharge  and  have  noted  the
information provided by the applicant  to  support  her  request.   However,
without more expansive information pertaining to  her  husband’s  activities
since leaving the service which would lend support to  her  assertions  that
he was a good citizen and a productive member of the community, we  are  not
inclined to exercise clemency in this case.

      b.  Favorable  consideration  of  the  applicant’s  request  that  her
husband’s records be corrected to show he was a  member  of  the  Air  Force
rather than the Army Air Force would not be appropriate since the Air  Force
had not yet been established  as  a  separate  service.   In  addition,  the
available service documents  as  well  as  the  birth  certificate  provided
indicate that the former member’s name at the time he  was  in  the  service
was “             .”  We therefore find no  basis  to  change  his  existing
records to show his name was “              .”

4.  Notwithstanding the above,  some  doubt  has  been  created  as  to  the
propriety of the use of the date 22 January 1950 as his date of  separation.
 We note the Chief,  Military  Justice  Division’s  statement,  that  it  is
certainly possible that the former member was released from  confinement  in
1946 but his discharge was not executed until  1950  due  to  administrative
processes or appellate review.  This is further substantiated by his  Social
Security statement of earnings that reflects his  employment  status  during
the latter part of October 1946 through December  1950.   In  light  of  the
above mitigating factor, we believe any doubt  should  be  resolved  in  the
applicant’s favor and that the former member’s records should  be  corrected
to show he was discharged on 29 October 1946.

_________________________________________________________________

THE BOARD RECOMMENDS THAT:

The pertinent military records of the Department of the Air  Force  relating
to FORMER MEMBER be corrected to show that he was  discharged  effective  29
October 1946, rather than 22 January 1950.
_________________________________________________________________

The following members of the Board considered this application in  Executive
Session on 20 March 2002, under the provisions of AFI 36-2603:

      Mr. David C. Van Gasbeck, Panel Chair
      Ms. Brenda L. Romine, Member
      Ms. Martha Maust, Member

All members voted to correct the records,  as  recommended.   The  following
documentary evidence was considered in connection with AFBCMR Docket  Number
00-02720:

     Exhibit A.  DD Form 149, dated 1 May 00, w/atchs.
     Exhibit B.  Applicant's Master Personnel Records.
     Exhibit C.  Letter, AFLSA/JAJM, dated 5 Jan 01.
     Exhibit D.  Letter, AFPC/DPSAMP, dated 14 Feb 01.
     Exhibit E.  Letter, AFPC/DPPR, dated 10 Apr 01.
     Exhibit F.  Letter, SAF/MIBR, dated 20 Apr 01.
     Exhibit G.  FBI Investigative Report, dated 16 Aug 01.
     Exhibit F.  Letters between AFBCMR and applicant.





                                  DAVID C. VAN GASBECK
                                  Panel Chair

AFBCMR 00-02720




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         , be corrected to show that he was discharged  effective
29 October 1946, rather than 22 January 1950.






  JOE G. LINEBERGER

  Director

  Air Force Review Boards Agency