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
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