RECORD OF PROCEEDINGS
         AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS

IN THE MATTER OF:      DOCKET NUMBER:  BC-2004-00652
            INDEX CODE:  110.00

            COUNSEL:  AMERICAN LEGION

            HEARING DESIRED:  NO

________________________________________________________________

APPLICANT REQUESTS THAT:

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

________________________________________________________________

APPLICANT CONTENDS THAT:

He always felt that being discharged because of a petty  theft  charge
was rather unjust.  Also, he did not have any other  offenses  against
him.  He realizes that he waited a long time to request an upgrade  on
this discharge, but he felt there was nothing that interfered with him
finding a good job.  He kept everything in perspective.  He  has  been
living a good Christian life with his family and  kept  a  good  clean
record through the years after the military.  He does not regret  that
he got the undesirable discharge.  He promised his dad that before  he
died he would try to get the matter changed.

Applicant did not submit any  documents  in  support  of  the  appeal.
Applicant's complete submission is at Exhibit A.

________________________________________________________________

STATEMENT OF FACTS:

Applicant enlisted in the Regular Air Force on 13  September  1956  in
the grade of airman  basic  for  a  period  of  four  years.   He  was
progressively promoted to the grade of airman third class (A/3C) on  5
December 1956.  He received  two  Airman  Performance  Reports  (APRs)
closing 16 October 1956 and 10 December 1956,  in  which  the  overall
evaluations were “excellent.”

The applicant’s discharge  case  file  has  been  lost  or  destroyed.
However, information extracted from the  Air  Force  Discharge  Review
Board (AFDRB) Examiner’s Brief prepared on 13 June 1958, when the file
was a part of his master  personnel  records,  indicates  that,  on  7
October 1957, the applicant’s Squadron  Commander  recommended  he  be
discharged from the Air Force under the provisions of  AFR  39-22  for
civil court conviction.  Specifically, the applicant was found  guilty
of misdemeanor theft and fined $25.00  and  sentenced  to  five  days’
imprisonment in the county jail.

On 16 August 1957, the applicant  did  unlawfully  take  one  hub  cap
valued at $6.00 without the owner’s consent.  The case was  called  to
trial on 18 September  1957.   Defendant  waived  trail  by  jury  and
submitted  decision  to  court.   Defendant  pleaded  guilty  to  this
accusation the court assessed his punishment  at  a  $25.00  fine  and
imprisonment in the county jail for five days.

On 3 October 1957, the Criminal District  Attorney  advised  that  the
maximum punishment for misdemeanor theft under the Penal Code of Texas
was imprisonment in the county jail for a period  not  to  exceed  two
years and a fine not to exceed $500.00.

On 18 October 1957, the applicant was discharged with  an  undesirable
discharge.  He served one year and one month on active duty.  He had a
total of 17 days’ lost time.

The Air  Force  Discharge  Review  Board  (AFDRB)  denied  applicant’s
request for an upgrade of discharge on 18 June 1958.  A  copy  of  the
AFDRB hearing record is attached at Exhibit B.

Pursuant to the Board’s request, the Federal Bureau of  Investigation,
Clarksburg,  West  Virginia,  indicated  on  the  basis  of  the  data
furnished they were unable to locate an arrest record (Exhibit C).

________________________________________________________________

AIR FORCE EVALUATION:

AFPC/DPPRS states 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  sound  discretion  of  the  discharge
authority.  Therefore, they recommend denial of applicant’s request.

A complete copy of the evaluation is at Exhibit D.

________________________________________________________________

APPLICANT'S REVIEW OF AIR FORCE EVALUATION:

On 2 April 2004, a copy of the Air Force evaluation was  forwarded  to
the applicant for review and response within  30  days.   As  of  this
date, this office has received no response.

On 22 April 2004, the Board staff requested the applicant provide post-
service documentation within 30 days (Exhibit E).  As  of  this  date,
this office has received no response.

________________________________________________________________

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.  Although no evidence has been provided  which  would  lead  us  to
believe the applicant’s discharge was improper  at  the  time  it  was
effected, we believe evidence supports a  recommendation  for  partial
relief based on clemency.  Prior to  the  incident  that  led  to  the
applicant’s  separation,  he  served  honorably  for   a   period   of
approximately  11  months.   While  not  condoning   the   applicant’s
misconduct,  we  believe  under  current  standards,  an   undesirable
discharge is excessively harsh.  In addition, it has been more than 45
years since the applicant’s separation and it appears likely, based on
the negative FBI report, that the applicant  has  made  a  good  post-
service adjustment.  We therefore  believe  his  discharge  should  be
characterized as “under honorable conditions.”  We are not inclined to
recommend the discharge be upgraded to fully honorable  based  on  the
short period of time the applicant actually served and in the  absence
of any documentary evidence from him pertaining  to  his  post-service
activities.

________________________________________________________________

THE BOARD RECOMMENDS THAT:

The pertinent military records of the  Department  of  the  Air  Force
relating to APPLICANT be corrected to show that on 18 October 1957, he
was discharged with service characterized as general (under  honorable
conditions).

________________________________________________________________

The following members of the  Board  considered  this  application  in
Executive Session on 23 June 2004, under the  provisions  of  AFI  36-
2603:

                  Mr. Thomas S. Markiewicz, Chair
                  Ms. Cheryl V. Jacobson, Member
              Ms. Barbara R. Murray, Member


All members voted to correct the records pertaining to  BC-2004-00652,
as recommended.  The following documentary evidence was considered:

   Exhibit A.  DD Form 149, dated 18 Feb 04, w/atch.
   Exhibit B.  Applicant's Master Personnel Records.


   Exhibit C.  FBI Report.
   Exhibit D.  Letter, AFPC/DPPRS, dated 31 Mar 04.
   Exhibit E.  Letter, AFBCMR, dated 22 Apr 04.
   Exhibit F.  Letter, SAF/MRBR, dated 2 Apr 04.




                                   THOMAS S. MARKIEWICZ
                                   Chair







AFBCMR BC-2004-00652




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 1 October 1957, he was
discharged with service characterized as general (under honorable
conditions).






            JOE G. LINEBERGER
            Director
            Air Force Review Boards Agency



MEMORANDUM FOR THE EXECUTIVE DIRECTOR, AIR FORCE BOARD FOR
                          CORRECTION OF MILITARY RECORDS (AFBCMR)


FROM:  SAF/MRB


SUBJECT:  , AFBCMR Docket Number BC-2004-00652

      I have carefully considered all aspects of this case and agree
with the AFBCMR panel that the applicant’s discharge should be
upgraded.  Because of the reasons set forth hereinafter, however, I
believe his discharge should be upgraded to honorable.

      The applicant was discharged on 18 October 1957, under the
provisions of AFR 39-22 for civil court conviction, with an under
other than honorable conditions (UOTHC) discharge after serving one
year and one month on active duty.  He had received two performance
reports with overall evaluations of excellent, and except for the
misdemeanor conviction, had no other derogatory information on file.
The applicant was 18 years old when he pled guilty in civil court for
the theft of one hubcap valued at $6.00.  He received a $25.00 fine
and was imprisoned for five days.  However, the Criminal District
Attorney advised Air Force officials that the maximum punishment for
this misdemeanor under the Penal Code of Texas was imprisonment in the
county jail for a period not to exceed two years and a fine not to
exceed $600.00.  Conviction of an offense that carried a penalty of
more than one year automatically forced the commander to recommend
discharge under AFR 39-22 with an undesirable discharge at the time.

      On 17 March 1959, AFR 39-22 was changed to permit commanders to
recommend honorable discharges.  The AFR in question, stated, among
other things, that where an airman has served faithfully and performed
to the best of his ability, and has been cooperative and conscientious
in doing his assigned tasks, he may be furnished an honorable
discharge.

      Certainly, I do not condone the behavior that led to his under
other than honorable conditions discharge.  Nevertheless, considering
all the circumstances of this case (i.e., excellent duty performance,
nature of offense committed (petty theft) change in policy regarding
characterization of these discharges, no involvement with law
enforcement officials since discharge and the length of time he has
been stigmatized by his discharge), I believe it would be an injustice
for him to continue to suffer the adverse effects of the under other
than honorable conditions discharge he received over 45 years ago.
Therefore, it is my decision that his discharge be upgraded to fully
honorable on the basis of clemency.






                             JOE G. LINEBERGER
                             Director
                             Air Force Review Boards Agency











AFBCMR BC-2004-00938




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 18 October 1957, he was
honorably discharged and furnished an Honorable Discharge certificate.





                                        JOE G. LINEBERGER
                                        Director
                                        Air Force Review Boards Agency