RECORD OF PROCEEDINGS
             AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS


IN THE MATTER OF:      DOCKET NUMBER:  BC-2003-01700
            INDEX CODE:  110.00

            COUNSEL: THE AMERICAN LEGION

            HEARING DESIRED:  NO


_________________________________________________________________

APPLICANT REQUESTS THAT:

His narrative reason for separation be changed.

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APPLICANT CONTENDS THAT:

He desires his narrative reason for separation be corrected to show  he  was
discharged for fraudulent entry  into  the  military  service  and  not  for
misconduct - homosexual actions.

In support of his appeal, the applicant  provided  an  excerpt  of  his  Air
Force Discharge Review Board (AFDRB) Brief, undated.

Applicant’s complete submission, with attachments, is at Exhibit A.

_________________________________________________________________

STATEMENT OF FACTS:

On 11 November 1946, prior to the applicant’s enlistment  he  was  convicted
by the State of Michigan for unarmed robbery.  He was  placed  on  probation
for two years, probation to be terminated 7 November 1947.

The applicant enlisted in the United States Army on  23  July  1947  in  the
grade of private.

After an investigation by the Adjutant General, consisting of a report  from
the State of Michigan,  his  commander  recommended  he  be  discharged  for
fraudulent entry based on his felony conviction and subsequent probation.

On 9 January 1948  the  Adjutant  General  indicated  that  the  applicant’s
enlistment record shows that at the time  of  enlistment  he  denied  having
been convicted by a civil court, of a felony or any offense and also  denied
having ever been imprisoned under sentence of a civil court.

On 20 January 1948 the applicant  indicated  in  a  written  statement  that
prior to entering the Air Force he was arrested on or about  11  March  1946
in Detroit for robbery and in March 1947 for stealing a case of wine from  a
drug store.

In June 1948 the commander of the XXXX  Air  Force  Base  Unit,  Mather  Air
Force Base, California, indicated that the applicant was adjudged guilty  of
robbery, unarmed, 11 November 1946, which is a felony under the laws of  the
State of Michigan; he was put on probation by the  Circuit  Court  of  Wayne
County,  Michigan,  which  probation  terminated  7  November   1947.    The
applicant enlisted 23 July 1947 at Dearborn, Michigan and,  so  far  as  the
records, which were available, showed, without  having  disclosed  his  past
record.  The commander  further  indicated  that  the  juvenile  authorities
waived jurisdiction and the proceedings  were  in  the  Circuit  Court,  and
under the laws of Michigan the applicant would be  considered  as  having  a
criminal record.

On 9 June 1948 the applicant received an undesirable discharge in the  grade
of private, under the provisions  of  AR  615-366  (Conviction  by  a  Civil
Court).  He served a total of 10 months and 17  days  total  active  service
with 14 days lost time.

On 18 July 1979, the Air Force Discharge  Review  Board  (AFDRB)  considered
and granted the applicant’s request to upgrade his undesirable discharge  to
general  (under  honorable  conditions).   The  AFDRB  concluded  that   the
discharge was consistent with the procedural  and  substantive  requirements
of the discharge regulation and was  within  the  sound  discretion  of  the
discharge authority.  The  Board  further  concluded  that  the  applicant’s
discharge should be changed to general under the provisions  of  AFR  39-12,
chapter 2, section D and he was issued  a  new  DD  Form  214  -  Report  of
Separation From Active Duty.

EXAMINER’S NOTE: The AFDRB  Hearing  Record  indicates  that  the  applicant
should receive a general discharge.  They  indicate  on  AFHQ  Form  0-2077,
page one, that the provisions of the discharge is AFR  39-12,  Chapter  Two,
Section B which  indicates  discharge  for  misconduct,  homosexual  acts  -
waiver of Board Hearing and on page two of the same form they  indicate  the
provisions of the discharge to be AFR 39-12, Chapter Two,  Section  D  which
indicates discharge for misconduct because of  fraudulent  enlistment.   The
DD  Form  214  indicates  the  reason  for  discharge  to  be   “Involuntary
Discharge, Misconduct, Homosexual Acts  -  Waiver  of  Board  Hearing.”   It
appears there was a typographical error between  what  the  Board  concluded
and what the DD Form 214 indicates.

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AIR FORCE EVALUATION:

AFPC/DPPRS indicated that based upon the documentation  in  the  file,  they
believe the discharge was consistent with  the  procedural  and  substantive
requirements of the discharge regulation.  Additionally, the  discharge  was
within the discretion of the discharge authority.  The  AFDRB  upgraded  the
applicant’s discharge and he was issued a new DD Form  214.   However,  they
believe the authority and narrative reason used  are  incorrect.   It  reads
authority as “AFM 39-12” and narrative  reason  as  “Involuntary  Discharge,
Misconduct, Homosexual Acts, Waiver of  Board  Hearing”  with  a  separation
program designator (SPD) code “HKC.”

If the AFBCMR grants relief, they recommend the applicant be  issued  a  new
DD Form  214  and  change  the  authority  to  AFI  36-3208,  Administrative
Separation of Airmen, and narrative  reason  for  discharge  to  “Fraudulent
Entry into Military Service” with SPD code “JDA”.  Under current policy,  if
a member is separated for fraudulent entry, they are not credited with  time
served.  He has not filed a timely request.

The evaluation is at Exhibit C.

_________________________________________________________________

APPLICANT'S REVIEW OF AIR FORCE EVALUATION:

On 27 June 2003, a copy of the Air Force evaluation  was  forwarded  to  the
applicant for review and response within 30  days.   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.    Sufficient relevant evidence has been  presented  to  demonstrate  the
existence of an error or injustice.  The applicant was  discharged  in  1948
with an undesirable discharge for fraudulent entry  into  the  military  for
failing to disclose his civil court conviction  prior  to  entry  on  active
duty.  On 18 July  1979,  the  Air  Force  Discharge  Review  Board  (AFDRB)
upgraded his discharge to general (under honorable conditions) on the  basis
of his entire record and his testimony.  The AFDRB found the  applicant  was
immature, inarticulate,  uneducated,  with  very  low  aptitude  scores  and
therefore,  concluded  that  a  general  discharge  was  more   appropriate.
However, apparently when the new DD Form 214 was issued, as a  result  of  a
typographical error on the AFDRB Hearing Record, the  narrative  reason  for
his discharge was listed as Misconduct for Homosexual  Acts.   Clearly  this
was  an  unfortunate  error  that  has  only  just  now   been   discovered.
Therefore, equity dictates that his records be corrected;  however,  if  the
narrative reason for discharge indicates  fraudulent  reasons,  it  is  very
likely that he would not be credited for the time he served and  this  could
be detrimental to the applicant.  Therefore, to remove  any  possibility  of
an injustice to the  applicant,  we  believe  that  his  records  should  be
corrected to show that the  narrative  reason  for  his  discharge  was  for
convenience of the government and this we so recommend.

_________________________________________________________________

THE BOARD RECOMMENDS THAT:

The pertinent military records of the Department of the Air  Force  relating
to APPLICANT, be corrected to show that on 9 June 1948,  he  was  discharged
under the provisions of AR 615-365 with a general discharge for  convenience
of the government.

_________________________________________________________________

The following members of the Board considered AFBCMR Docket Number  BC-2003-
01700 in Executive Session on 21 August 2003, under the  provisions  of  AFI
36-2603:

                 Ms. Patricia D. Vestal, Panel Chair
                 Ms. Martha J. Evans, Member
                 Mr. E. David Hoard, Member

All members voted to correct the records,  as  recommended.   The  following
documentary evidence was considered:

   Exhibit A.  DD Form 149, dated 5 February 2003, w/atchs.
   Exhibit B.  Applicant's Master Personnel Records.
   Exhibit C.  Letter, AFPC/DPPRS, dated 23 June 2003.
   Exhibit D.  Letter, SAF/MRBR, dated 27 June 2003.




                       PATRICIA D. VESTAL
                       Panel Chair





AFBCMR BC-2003-01700




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 on 9 June 1948, he was
discharged under the provisions of AR 615-365 with a general discharge for
convenience of the government.




            JOE G. LINEBERGER
            Director
            Air Force Review Boards Agency