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AF | BCMR | CY2003 | BC-2003-02880
Original file (BC-2003-02880.doc) Auto-classification: Denied


                            RECORD OF PROCEEDINGS
             AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS


IN THE MATTER OF:      DOCKET NUMBER:  BC-2003-02880
            INDEX CODE:  110.00

            COUNSEL:  NONE

            HEARING DESIRED:  NO


_________________________________________________________________

APPLICANT REQUESTS THAT:

His general  (under  honorable  conditions)  discharge  be  upgraded  to  an
honorable discharge.

_________________________________________________________________

APPLICANT CONTENDS THAT:

He was a very young airman who made a mistake and violated a civil law.   He
was convicted of  receiving  stolen  property.   When  the  civil  case  was
settled the Air Force gave him the option of continuing his military  career
or take an early discharge.  He states that he never violated  any  military
laws and regrets that this incident happened.

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

_________________________________________________________________

STATEMENT OF FACTS:

The applicant enlisted in the Regular Air Force on 10 February 1977  in  the
grade of airman basic for a period of four (4) years.

On 9 March 1978, the applicant was notified of  his  commander's  intent  to
initiate discharge action against him because of a civil  court  conviction.
The applicant was convicted by the ----County Judicial Court  for  receiving
stolen property and was sentenced to serve 60 days in  jail  and  two  years
probation.

The commander indicated in his recommendation for discharge action that  the
applicant’s duty performance, positive attitude  and  willingness  to  learn
and help others as indicated in his airman performance report,  warranted  a
general discharge.  He further indicated that the  applicant  has  not  been
led to believe through  promises,  implication  or  representation  that  he
would receive a  discharge  any  better  than  the  worst  authorized.   The
commander did not recommend the applicant for probation and  rehabilitation.
 Rehabilitative efforts consisted of counseling’s by his supervisors,  first
sergeant, and his  section  commander.   Under  the  circumstances,  further
efforts were not warranted.

The commander advised the applicant of his right to consult  legal  counsel,
to present his case before an administrative  discharge  board,  and  submit
statements in his own behalf; or waive the  above  rights  after  consulting
with counsel.

On 14 March 1978, after consulting with counsel, the applicant  submitted  a
conditional  waiver  of  his  rights  associated  with   an   administrative
discharge board hearing.  This waiver was contingent on  his  receipt  of  a
general discharge if the recommendation for his discharge was approved.

On 20 March 1978, the Staff Judge Advocate recommended  that  the  discharge
authority accept the applicant’s waiver and  recommended  the  applicant  be
discharge with a general discharge without probation and rehabilitation.

On  5  April  1978,  the  discharge  authority  approved   the   applicant’s
conditional waiver and general discharge.

Applicant was discharged on 6 April 1978,  in  the  grade  of  airman  first
class with a general  (under  honorable  conditions)  discharge,  under  the
provisions of AFM 39-12 (Civil Court  Conviction).   He  served  1  year,  1
month, and  21 days  of  total  active  military  service.   He  received  a
Reenlistment Eligibility (RE) code of 2C - Separated under AFM 39-12.

_________________________________________________________________

AIR FORCE EVALUATION:

AFPC/DPPRS recommended denial.  They indicated  that  the  applicant  stated
his civil case was closed and his  record  expunged;  however,  he  did  not
submit evidence of this action or identify any  errors  or  injustices  that
occurred in the discharge processing.  Additionally, he  provided  no  facts
warranting an upgrade of his discharge.  He has not filed a timely request.

The evaluation is at Exhibit C.

_________________________________________________________________

APPLICANT'S REVIEW OF AIR FORCE EVALUATION:

On 3 October 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.    Insufficient relevant evidence has been presented to  demonstrate  the
existence of an error or injustice warranting an upgrade of the  applicant’s
discharge.  We  took  notice  of  the  applicant's  complete  submission  in
judging the merits of the case; however,  we  agree  with  the  opinion  and
recommendation of the Air Force and adopt their rationale as the  basis  for
our decision that the applicant has failed to sustain  his  burden  that  he
has suffered either an error or an injustice.  Based  on  the  documentation
in the applicant's records, it appears that the processing of the  discharge
and the characterization of the discharge were appropriate and  accomplished
in accordance with Air Force policy.  Therefore, in the absence of  evidence
to the contrary, we find no  compelling  basis  to  recommend  granting  the
relief sought.

_________________________________________________________________

THE BOARD DETERMINES THAT:

The applicant be notified that the evidence presented  did  not  demonstrate
the existence of an 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 AFBCMR Docket Number  BC-2003-
02880 in Executive Session on 12 November 2003, under the provisions of  AFI
36-2603:

                  Mr. David C. Van Gasbeck, Panel Chair
                  Mr. James W. Russell III, Member
                  Ms. Patricia Kelly, Member

The following documentary evidence was considered:

   Exhibit A.  DD Form 149, dated 23 August 2003, w/atchs.
   Exhibit B.  Master Personnel Records.
   Exhibit C.  Letter, AFPC/DPPRS, dated 19 September 2003.
   Exhibit D.  Letter, SAF/MRBR, dated 3 October 2003.




                                DAVID C. VAN GASBECK
                                Panel Chair

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