RECORD OF PROCEEDINGS
             AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS

IN THE MATTER OF:                       DOCKET NUMBER:  BC-2004-00064
                                             INDEX CODE:  110.02
                                             COUNSEL:  NONE

                                             HEARING DESIRED:  NO

________________________________________________________________

APPLICANT REQUESTS THAT:

His  undesirable  discharge  (under  other  than  honorable  conditions)  be
changed to honorable.
________________________________________________________________

APPLICANT CONTENDS THAT:

He joined the Air  Force  in  October  1961.   He  initially  entered  Basic
Training at Lackland, TX, and was later transferred to  Amarillo  Air  Force
Base, TX, to complete Basic Training.  He then entered Jet Aircraft  Fighter
School, and completed fighter school training  with  a  final  grade  of  87
percent.  He was then transferred  to  Hill  AFB,  UT,  completed  training,
obtained his five-level,  and  received  an  80  percent  on  his  Specialty
Knowledge Test.

In April 1964, he received Civil Papers to appear in court on the charge  of
Carnal Knowledge.  His  Commanding  Officer  and  First  Sergeant  tried  to
arrange a marriage, but he told them he had no intentions  on  this  matter.
He spoke to his lawyer, who advised him “it would be his word  against  hers
in court, and that her word would be accepted first.”  He was informed  that
Carnal Knowledge carried a sentence of one to five years in prison, and  was
advised that pleading guilty might result in a  lighter  sentence,  such  as
probation.  On 5 October 1964, he was sentenced to serve five months in  the
County Jail, and was given one and one-half years probation.

After he was incarcerated, he hired a new lawyer  who  was  able  to  obtain
information that refuted the accusations against him.  On 1 March  1965,  he
was released from jail.  He reappeared  in  court,  on  8  March  1965,  for
imposition  of  his  probation  sentence;  however,  in  light  of  the  new
information, the judge dropped his probation, and stated that  the  plea  of
guilty or conviction as previously entered was thereby  set  aside  and  the
action was dismissed.

In support of his request, the applicant submits a personal statement,  four
(4) affidavits, and excerpts  from  his  military  personnel  records.   The
applicant’s submission, with attachments, is at Exhibit A.
________________________________________________________________
STATEMENT OF FACTS:

The applicant’s military personnel records are  incomplete.   The  following
information was extracted from the remaining documentation, and  the  Airman
Military Record, AF Form 7.

On 9 October 1961, the applicant enlisted in the Regular Air  Force  at  the
age of 20 in the grade of airman basic for a period of four years.   He  was
progressively promoted to the grade of airman second class (E-3),  effective
and with a date of rank of 1 February 1963.

On 12 June 1963, he  received  an  Article  15,  Uniform  Code  of  Military
Justice (UCMJ), for  being  absent  from  his  organization  without  proper
authority.  He was reduced to the grade of airman  basic  and  ordered  into
correctional custody for 30 days.  The Wing Commander restored his grade  to
airman second class on 17 September 1963.  On 23 May 1964,  he  received  an
Article 15, UCMJ, for failing to go at the time prescribed to his  appointed
place of duty, and was again reduced to the grade of airman basic.

On 23 September 1964, the applicant’s commander notified the applicant  that
he  was  recommending  he  be  discharged  from  the  Air  Force  under  the
provisions of Air Force Regulation  39-22  (conviction  by  a  civil  court)
because of Moral Turpitude involving indecent assault  upon  a  16-year  old
female.  The applicant was further advised an  undesirable  discharge  would
be recommended.

The applicant acknowledged  receipt  of  the  notification  and  waived  his
rights to consult counsel, but did submit  statements  in  his  own  behalf.
The discharge case file was reviewed by the staff judge  advocate,  and  was
found legally sufficient.  The discharge authority approved the  recommended
separation on 16 October 1964, and directed that the applicant be  separated
with an under other than honorable conditions discharge.  The applicant  was
separated from the Air Force on 16 October 1964.  He had  served  on  active
duty for a period of 2 years, 11 months, and 13 days.

In 1965, applicant  applied  to  the  Air  Force  Board  for  Correction  of
Military Records (AFBCMR) for upgrade of his  discharge  to  honorable;  and
restoration  of  all  his  previous  rights,  grades,  skill  ratings,   and
reenlistment privileges.  His application was denied  by  the  Board  on  28
April 1965.  A copy of the case file (Docket Number 65-711)  is  at  Exhibit
C.

Pursuant to the Board’s request, the Federal Bureau of  Investigation  (FBI)
provided a copy of an  investigative  report  pertaining  to  the  applicant
(Identification Record No. 244400S8), which is at Exhibit G.
________________________________________________________________

AIR FORCE EVALUATION:

HQ AFPC/DPPRS recommends  denial.   DPPRS  states  that  the  discharge  was
consistent  with  the  procedural  and  substantive  requirements   of   the
discharge regulation, and that the discharge was within  the  discretion  of
the discharge authority.  They conclude that the applicant  did  not  submit
any evidence or identify any errors  or  injustices  that  occurred  in  the
discharge processing, and that he provided no facts  warranting  an  upgrade
of the discharge received (Exhibit D).
________________________________________________________________

APPLICANT'S REVIEW OF AIR FORCE EVALUATION:

On 13 February 2004, a copy of the Air Force  evaluation  was  forwarded  to
the applicant for review and comment.  On 17 February 2004, a  copy  of  the
Federal  Bureau  of  Investigations  (FBI)  report  was  forwarded  to   the
applicant.

On 24 February  2004,  the  applicant  was  invited  to  submit  information
pertaining to  his  post-service  accomplishments.   As  of  this  date,  no
response has been received.

In response to the advisory opinion, he submits a statement that  reiterates
his earlier comments, and a supportive letter from  his  current  supervisor
(Exhibit F).

In response to the FBI report, the applicant submits a  personal  statement,
a copy of a Final Discharge order issued  by  the  State  of  Utah,  and  an
additional personal statement  that  restates  his  request,  which  are  at
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.  After a thorough review of the evidence of record, we  see  no  evidence
to show that the applicant’s discharge was erroneous or unjust.  It  appears
likely that he has led  a  stable  and  productive  life  and  there  is  no
evidence that he has had any subsequent serious involvement of a  derogatory
nature since his separation from the Air Force.  In light of the  above,  we
believe that it would be an injustice for him  to  continue  to  suffer  the
adverse effects of an undesirable discharge.  Therefore,  on  the  basis  of
clemency,  we  believe  an  upgrade  of  his  discharge  to  general  (under
honorable conditions) is warranted.  His request for  upgrade  to  honorable
was considered.  As noted  in  the  1965  legal  opinion  provided  for  the
Board’s review, there is no indication that the expunging of the  record  by
the State of Utah was intended as a reversal of the conviction  or  that  it
shows the applicant would not have been convicted in the  first  place.   In
the absence of documentary evidence by the applicant showing  the  contrary,
in view of the seriousness of the offense that led  to  his  separation  and
because the available evidence shows that the applicant’s  service  was  not
wholly meritorious, it is our opinion that an upgrade to a  fully  honorable
discharge is not warranted.  Accordingly, we recommend that his  records  be
corrected as indicated below.
________________________________________________________________

THE BOARD RECOMMENDS THAT:

The pertinent military records of the Department of the Air  Force  relating
to  APPLICANT  be  corrected  to  show  that  on  16 October  1964,  he  was
discharged  with  service  characterized   as   general   (under   honorable
conditions).
________________________________________________________________

The following members of the Board considered this application in  Executive
Session on 11 May 2004, under the provisions of AFI 36-2603:

                 Mr. John L. Robuck, Panel Chair
                 Ms. Olga M. Crerar, Panel Member
                 Ms. Martha J. Evans, Panel Member

The following documentary evidence was considered in connection with AFBCMR
Docket Number BC-2004-00064.

      Exhibit A.  DD Form 149, with attachments, dated 2 Jan 04.
      Exhibit B.  Applicant’s Master Personnel Records.
      Exhibit C.  SAFCB 65-711, with attachments.
      Exhibit D.  Letter, HQ AFPC/DPPRS, 9 Feb 04.
      Exhibit E.  Letter, SAF/MRBR, dated 13 Feb 04; and,
                   Letters, AFBCMR, dated 24 Feb and 17 Mar 2004.
      Exhibit F.  Applicant’s Rebuttal, undated, with attachments.
      Exhibit G.  FBI Identification Record No. 244400S8.
      Exhibit H.  Applicant’s Letter, undated, with attachments.




      JOHN L. ROBUCK
      Panel Chair



AFBCMR BC-2004-00064




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 APPLICANT be corrected to show that on 16 October 1964, he was
discharged with service characterized as general (under honorable
conditions).





  JOE G. LINEBERGER

  Director

  Air Force Review Boards Agency