RECORD OF PROCEEDINGS
             AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS

IN THE MATTER OF:                       DOCKET NUMBER:  BC-2003-02035
                                       INDEX CODE:  110.02
      XXXXXXXXXXXXXXXXXXXXXXX           COUNSEL: JOHN A. GREENMAN

      XXXXXXXXXXXXXXXXX                      HEARING DESIRED:  YES

_________________________________________________________________

APPLICANT REQUESTS THAT:

His undesirable discharge be upgraded to honorable.

_________________________________________________________________

APPLICANT CONTENDS THAT:

He was  immature  and  ignorant  of  his  rights  and  the  effect  that  an
undesirable discharge would have on his life.   The  Air  Force  denied  him
basic due process when they discharged him.  He was not permitted to  attend
a hearing, or to present evidence to dispute  or  mitigate  the  allegations
made against him.  He was not provided legal counsel to represent  him,  nor
was he provided the opportunity to testify or call witnesses in his  behalf.
 His recruiter informed him that that his juvenile record of  joyriding  was
not significant enough to prevent him from joining the Air  Force.   It  was
never his intention to deceive the Air Force in regards to his past  record.
 His ability to serve  in  the  Air  Force  was  impaired  by  his  deprived
background.  His parents were  divorced  and  he  only  had  a  tenth  grade
education.  The punitive discharge he received was excessively  severe  when
compared to today’s standards.

In support of his application, he provides copies of  his  military  service
records and an affidavit.  A copy of the  applicant’s  complete  submission,
with attachments, is at Exhibit A.

_________________________________________________________________

STATEMENT OF FACTS:

The applicant enlisted in the Regular Air Force on 29 October  1954  at  the
age of 17 for a period of four years in the grade  of  Airman  Basic  (E-1).
Action was initiated on 11 January 1955 to separate the  applicant  when  it
was discovered he denied having a police record upon his enlistment.   On  1
February 1955, the applicant was tried by a Summary Court-Martial for  being
absent without leave (AWOL) from on or about 28 January  1955  until  on  or
about 31 January 1955.  He was found guilty and sentenced to confinement  at
hard labor for 30 days  and  forfeiture  of  $50.   The  remaining  unserved
portion of his confinement was remitted when  the  applicant  was  separated
effective  17  February  1955  with  an  undesirable  discharge  under   the
provisions of AFR 39-21 (Fraudulent Entry).   The  applicant  had  served  3
months and 16 days on active duty.  His time lost was three days.

Pursuant to the  Board’s  request,  the  Federal  Bureau  of  Investigation,
Clarksburg, WV, provided a copy of an  Investigation  Report  pertaining  to
the applicant, which is at Exhibit G.

_________________________________________________________________

AIR FORCE EVALUATION:

AFPC/DPPRS states that due to the  lack  of  documentation  to  support  the
applicant’s discharge process, his young age at the  time,  and  considering
the incident occurred over 45 years ago, they would not be  opposed  to  the
Board  granting  an  upgrade  to  a  general  (under  honorable  conditions)
discharge if a search of the  FBI  files  does  not  reveal  and  subsequent
convictions.  The DPPRS evaluation is at Exhibit C.

_________________________________________________________________

APPLICANT'S REVIEW OF AIR FORCE EVALUATION:

The applicant was given the opportunity to submit comments about his  post
service activities (see Exhibit E).  He replied through his attorney  with
numerous letter of recommendation and copies of his  Private  Investigator
Licenses for the years 1982, 1983, and 1999.  His reply is at Exhibit F.

With respect to his  FBI  report,  the  applicant  submitted  a  statement
through his attorney objecting to its use for  the  Board’s  consideration
(Exhibit I).  The reason for his objection is that his  juvenile  records,
which are contained in Items 1, 2 and 3  of  the  FBI  report,  have  been
sealed by the 14 March 1980 Order of the Superior Court of  the  State  of
California in and for the County of  Alameda  in  Session  as  a  Juvenile
Court.  In addition, Items 4, 5, and 6 were sealed  by  an  Order  of  the
United States District Court for the District of Nevada, which  was  filed
on 27 February 1985.  Under Nevada law,  an  individual  is  permitted  to
answer that he has not been convicted of a crime when  the  Court  records
are sealed by Court Order.  Items 1, 2, and 3 of the FBI report  were  for
juvenile offenses, for which he was arrested at the age of  20  years.  Of
the three offenses, he was only charged with petty larceny  and  sentenced
to ten days confinement on 2 April 1958.  With regard to Items 4, 5, and 6
of the FBI report, these charges were dismissed.

_________________________________________________________________

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 probable injustice.  After a thorough review  of  the  evidence
of record, we see no evidence to show that  the  applicant’s  discharge  was
erroneous  or  unjust.   Nevertheless,  after  reviewing   the   applicant’s
submission,  we  are  of  the  opinion  that  the  applicant  has   provided
sufficient evidence to lead us to conclude that in the years  following  his
separation, he has made a successful adjustment to civilian life.   This  is
evident by his involvement and service to his  community  by  serving  as  a
Private Investigator in the State of Nevada.   We  note  the  recommendation
from the Air Force in regard  to  upgrading  the  applicant’s  discharge  to
general (under honorable conditions).  However, in view of  the  applicant’s
post service record and consideration of his age and immaturity at the  time
of his discharge, we believe that a fully honorable discharge  is  warranted
and the reason for separation  should  be  changed  to  convenience  of  the
government.  Therefore, we  recommend  that  his  records  be  corrected  as
indicated below.

_________________________________________________________________

THE BOARD DETERMINES THAT:

The pertinent military records of the Department of the Air  Force  relating
to APPLICANT be  corrected  to  show  that  on  17  February  1955,  he  was
honorably discharged under the provisions of AFR 39-14 for the  “Convenience
of the Government,” rather than under the provisions of AFR 39-21,  and  was
furnished an Honorable Discharge certificate.

_________________________________________________________________

The following members of the Board considered this application in  Executive
Session on 6 November 2003, under the provisions of AFI 36-2603:

      Ms. Marilyn Thomas, Vice Chair
      Mr. Roscoe Hinton Jr., Member
      Mr. J. Dean Yount, Member



The following documentary evidence for AFBCMR  Docket  Number  BC-2003-02035
was considered:

     Exhibit A.  DD Form 149, dated 10 Jun,03 w/atchs.
     Exhibit B.  Applicant's Master Personnel Records.
     Exhibit C.  Letter, AFPC/DPPRS, dated 11 Jul 03.
     Exhibit D.  Letter, SAF/MRBR, dated 18 Jul 03.
     Exhibit E.  Letter, AFBCMR, dated 14 Aug 03.
     Exhibit F.  Applicant’s Rebuttal, dated 28 Aug 03
     Exhibit G.  FBI Report 979122A, dated 12 Sep 03.
     Exhibit H.  Letter, AFBCMR, dated 24 Sep 03.
     Exhibit I.  Applicant’s Rebuttal to FBI Rpt, dtd 8 Oct 03




                                  MARILYN THOMAS
                                  Vice Chair


AFBCMR BC-2003-02035




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 17 February 1955, he was
honorably discharged under the provisions of AFR 39-14 for the “Convenience
of the Government,” rather than under the provisions of AFR 39-21, and was
furnished an Honorable Discharge certificate.





  JOE G. LINEBERGER

  Director

  Air Force Review Boards Agency