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AF | BCMR | CY2002 | 0102576
Original file (0102576.doc) Auto-classification: Denied


                       RECORD OF PROCEEDINGS

         AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS


IN THE MATTER OF:      DOCKET NUMBER:  01-02576
            INDEX NUMBER:  110.02

            COUNSEL:  NONE

            HEARING DESIRED:  NO

_________________________________________________________________

APPLICANT REQUESTS THAT:

His undesirable discharge  be  upgraded  to  general  under  honorable
conditions discharge.

_________________________________________________________________

APPLICANT CONTENDS THAT:

He refused a direct order.  He was only 22 years old and he thought at
that age he didn’t need to be told what to do, because he  thought  he
knew everything.  He’s much older now and realizes that he  only  hurt
himself.

Applicant’s complete submission is at Exhibit A.

_________________________________________________________________

STATEMENT OF FACTS:

Prior to the enlistment under review,  the  applicant  served  in  the
Regular Air Force from 21 Apr 52 to 30 Dec 54.  He  reenlisted  on  31
Dec 54; he spent 2 years, 5 months and 21 days in Hawaii.  During this
enlistment, he was promoted to the grade of airman first class (A1C/E-
4).  His grade at time of discharge was airman third class (A3C/E-2).

The pertinent facts  leading  up  to  the  applicant’s  discharge  are
contained in the Air Force Discharge Review Board  (AFDRB)  Examiner’s
brief at Exhibit B.

On 26 Jul 57, applicant acknowledged  receipt  of  the  administrative
discharge action and waived his entitlement to appear before  a  board
of officers and requested discharge in lieu of board proceedings.   He
further acknowledged that he understood that if  his  application  was
approved, that his separation could be  under  conditions  other  than
honorable and that he could receive an undesirable discharge, and that
this may deprive him of rights as a veteran  under  both  federal  and
state legislation.

On 23 Aug 57, he was discharged under the provisions of AFR  39-17  by
reason of unfitness, with an undesirable discharge.  He  was  credited
with 5 years, 4 months and 2 days of active service.

On 6 October 1958, the Air Force Discharge Review Board (AFDRB)  found
that neither evidence of record, nor that provided by  the  applicant,
substantiated an inequity or impropriety which would justify a  change
in the discharge (see AFDRB Hearing Record at Exhibit B).

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

_________________________________________________________________

AIR FORCE EVALUATION:

The  Separation  Procedures  Section,  HQ  AFPC/DPPRS,  reviewed   the
applicant’s request and found that the discharge was  consistent  with
the  procedural  and  substantive  requirements   of   the   discharge
regulation.  Additionally, that the discharge  was  within  the  sound
discretion of the discharge  authority.   They  also  noted  that  the
applicant did not submit any new evidence or identify  any  errors  or
injustices that occurred in the discharge processing.  Considering the
discharge occurred over 44 years ago and the type  of  offenses,  they
recommend clemency.  They also recommended that if the FBI files prove
negative,  that  the  applicant’s  discharge  be  upgraded  to   under
honorable conditions (general).

A complete copy of the evaluation is at Exhibit D.

_________________________________________________________________

APPLICANT'S REVIEW OF AIR FORCE EVALUATION:

A copy of the Air Force evaluation was forwarded to the applicant on 2
November 01 for review and comment within 30 days.  As of  this  date,
no response has been received by this office (Exhibit E).

On 29 January 2002, a copy of the FBI  report  was  forwarded  to  the
applicant for comment.  At that time, the applicant was  also  invited
to provide additional evidence  pertaining  to  his  activities  since
leaving the service (Exhibit F).  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.  Insufficient relevant evidence has been presented  to  demonstrate
the  existence  of  error   or   injustice.    After   reviewing   the
circumstances surrounding applicant’s involuntary separation, we  find
no evidence to indicate that the type of discharge he received was  in
error or unjust.  We note that the Air Force recommended, provided his
FBI report was negative, that  his  discharge  be  upgraded  to  under
honorable conditions (general) based on clemency.  However,  based  on
the contents of the FBI  report  and  the  absence  of  the  requested
information regarding his activities since leaving the service, we are
not  persuaded  that  an  upgrade  of  the  characterization  of   the
applicant’s discharge is warranted on the basis of clemency.  Based on
the  foregoing,  we  find  no  basis  to   favorably   consider   this
application.

_________________________________________________________________

THE BOARD DETERMINES THAT:

The  applicant  be  notified  that  the  evidence  presented  did  not
demonstrate the existence of 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  AFBCMR
Docket Number 01-02576 in Executive Session on 2 April 2002, under the
provisions of AFI 36-2603:

      Ms. Patricia D. Vestal, Panel Chair
      Mr. Michael K. Gallogly, Member
      Mr. Robert S. Boyd, Member

The following documentary evidence was considered:

    Exhibit A.  DD Form 149, dated 18 Sep 01, w/atchs.
    Exhibit B.  Applicant's Master Personnel Records.
    Exhibit C.  FBI Report of Investigation
    Exhibit D.  Letter, HQ AFPC/DPPRS, dated 16 Oct 01.
    Exhibit E.  Letter, SAF/MRBR, dated 2 Nov 01, w/atchs.
    Exhibit F.  Letter, AFBCMR, dated 29 Jan 02, w/atchs.




                                   PATRICIA D. VESTAL
                                   Panel Chair



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