RECORD OF PROCEEDINGS
             AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS


IN THE MATTER OF:      DOCKET NUMBERS:  BC-2004-02271
            INDEX CODE 106.00
            COUNSEL:  None

            HEARING DESIRED:  Yes

_________________________________________________________________

APPLICANT REQUESTS THAT:

His 1958 Bad Conduct Discharge (BCD)  with  service  characterized  as
Under-Other-Than-Honorable-Conditions (UOTHC) be upgraded.

_________________________________________________________________

APPLICANT CONTENDS THAT:

He wants his discharge upgraded in recognition of the  many  years  of
distinguished service he has performed since  the  incident  46  years
ago.  He suffers  from  Parkinson’s  Disease  and  needs  an  upgraded
discharge to obtain necessary medication.  He asserts he was a  member
of the US Coast Guard Auxiliary during the period 1971-1978,  and  has
been a member of the Jewish War Veterans (JWV)  for  approximately  35
years.

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

_________________________________________________________________

STATEMENT OF FACTS:

The following information was extracted from the applicant’s  military
personnel records and his  court-martial  records  obtained  from  the
National Archives through AFLSA/JAJM:

The applicant enlisted in the Regular Air Force on  31 Jul  56  for  a
period of four years and was promoted to airman third class  on  9 Nov
56.  During the period in  question,  he  was  assigned  to  the  25th
Bombardment Squadron at Schilling AFB, KS, as a technical mechanic and
then as assistant crew chief.

On 9 May 57, a .38 caliber revolver was discovered  missing  from  the
Unit Supply.   Shortly  thereafter,  the  applicant  displayed  a  .38
caliber revolver to another airman.  On 27 May 57, an inventory of the
same Unit Supply  revealed  three  more  .38  caliber  revolvers  were
missing.

Following an investigation  and  after  being  read  his  rights,  the
applicant provided a statement indicating he procured a key  and  took
one .38 caliber revolver on 5 May 57.  A few evenings later, on 24 May
57, the applicant and another airman used a key to enter the Arms Room
and took three .38 caliber revolvers.  One gun was given  to  a  staff
sergeant.  The guns were  found  in  an  automobile  owed  by  another
airman.

On 1 Jul 57, the applicant was charged with wrongfully appropriating a
.38 caliber Smith & Wesson revolver, valued at more than $20.00, on or
about 5 May 57, at Schilling AFB; and with stealing three .38  caliber
Smith & Wesson revolvers, at a total value of more than $50.00, on  or
about 24 May 57, at Schilling AFB.   The  charges  and  specifications
were referred to special court-martial on 12 Jul 57.  At the  time  of
the incident, the applicant was 18 years and 10 months of age.

On 18 Jul 57, the applicant pled guilty to and was found guilty of the
charges  and  specifications  and  was  sentenced  to  a  BCD,  $50.00
forfeiture in pay per month for six months, and  confinement  to  hard
labor for six months.  The applicant  elected  to  remain  silent  and
presented nothing on the merits; however, his counsel made an  unsworn
statement in mitigation and extenuation  on  the  applicant’s  behalf.
The court-martial panel recommended the applicant be sent to [Amarillo
AFB, TX] for rehabilitation.

On 19 Jul 57, a post-trial interview was conducted by  the  802nd  Air
Base Group staff judge advocate  (JAG)  at  Schilling  AFB.   The  JAG
reported the applicant had been advised of his rights before giving  a
statement that he had found some .38 caliber ammunition in  a  car  he
had purchased locally and wanted to expend the ammunition.  He decided
to obtain a .38 caliber gun from the Unit Supply.  In his  attempt  to
return the gun, he informed two other airmen about his  problem.   The
two airmen became interested and suggested they go to  the  Gun  Room,
Unit Supply, to get three more and “divide them  up.”   The  applicant
indicated he believed he had a fair trial and  his  appointed  defense
counsel (ADC) did all he could do and “did  a  very  good  job.”   The
applicant indicated he wanted to stay in the Air Force at Schilling in
his present career field and strongly did not want to go  to  Amarillo
for  retraining  and  rehabilitation.   The  JAG  recommended  against
sending the applicant to Amarillo  and  noted  the  applicant’s  first
sergeant and squadron did not want him returned to their unit. The JAG
recommended the sentence adjudged be  approved  and  ordered  executed
without further clemency.

Legal review by the Westover AFB JAG, on 19 Aug 57,  determined  there
were no errors which materially prejudiced any substantial  rights  of
the accused and the evidence of record was sufficient to  sustain  the
findings.  The sentence was  adjudged  as  appropriate,  but  the  JAG
recommended the punitive discharge be suspended for six  months  after
the accused had served his -confinement at Amarillo AFB  in  order  to
extend an opportunity for rehabilitation and restoration.

On 23 Aug 57, the sentence was approved but the execution of  the  BCD
was suspended for the period of confinement and six months thereafter,
at which time, unless the suspension was sooner vacated, the suspended
portion would be remitted without further action.

On 3 Dec 57, the unexecuted portion  of  the  sentence  pertaining  to
forfeitures only was remitted, effective 18 Dec 57.  The applicant was
restored to duty on 18 Dec 57 with the BCD suspended to 18 Jun 58 with
automatic remission.

According to Special Court-Martial Order No. 124, dated 5 May  58,  so
much of the order as suspended execution of the sentence  to  BCD  was
vacated pursuant to Article 72 and would be duly executed.  No further
information is provided in the record.  Special Order No. R-72,  dated
14 May 58, discharged the applicant with a UOTHC  characterization  of
service effective 14 May 58.  He was issued a DD Form 259 AF, BCD.

Pursuant to the Board's request, the Federal Bureau  of  Investigation
(FBI), Washington, D.C., provided an investigative  report,  which  is
attached at Exhibit C.  According to the report, the applicant appears
to have been arrested on 4 Jul 58 for larceny and burglary, was  found
guilty and sentenced to five years of confinement.

_________________________________________________________________

AIR FORCE EVALUATION:

HQ AFPC/DPPRS was unable to determine the propriety of  the  discharge
based on the lack of documentation in the applicant’s master personnel
records.  [Note:  Court-martial records were obtained for the  Board’s
review--see Exhibit B.]  DPPRS contends the applicant did  not  submit
any evidence or identify any errors or injustices that occurred in his
discharge processing.  They defer to the Board.

A complete copy of the evaluation is at Exhibit D.

_________________________________________________________________

APPLICANT'S REVIEW OF AIR FORCE EVALUATION:

The applicant asserts two other individuals equally  involved  in  the
incident received lighter punishment.   He  was  provided  incompetent
counsel.  He was not informed of his right to have  his  own  counsel.
His ADC told him to plead guilty to protect the other two because they
were family men.  At the time of the incident he was only 18 years  of
age and basically alone in the  world.   He  did  not  understand  his
rights, the seriousness of the situation, or  its  future  importance.
Today, the incident would have been handled much differently.  He asks
the Board recognize his subsequent contributions  to  the  safety  and
defense of his country and reverse this injustice.

A complete copy of applicant’s response is at Exhibit F.

The  AFBCMR  Staff  invited  the  applicant  to  submit   post-service
information and also provided him a copy of  the  FBI  report.   These
letters are at Exhibits G and H.

The applicant indicates he started his own roofing business, which has
operated continuously for 44 years.  He provides  a  certificate  from
the Coast Guard of his licensing and character references.  He’s  been
an active member of many charitable and fraternal  organizations.   He
has attempted to the best of his ability to be a  good  and  honorable
citizen.

The applicant’s complete submission, with attachments, is  at  Exhibit
I.

_________________________________________________________________

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 error or injustice.  After a thorough review  of  the
evidence of record and the applicant’s submission, a majority  of  the
Board is not persuaded his discharge  should  be  upgraded.   In  this
regard, we found the applicant’s 14 May 58 discharge  characterization
appropriate and supported by the evidence of the record.  We also note
he was arrested on 4 Jul 58 for larceny and burglary and was sentenced
to five years of confinement, according to the FBI  report.   However,
the applicant apparently has had no problems with the law  since  then
and  he  provided  several  supporting  statements  attesting  to  his
character.  As the applicant has not demonstrated  his  BCD  discharge
was unjustified, the only basis for  relief  in  this  case  would  be
clemency.  We commend the applicant for becoming a  productive  member
of society.  However, the Board majority is unpersuaded  his  civilian
activities have overcome his military performance and 1958  conviction
sufficiently to warrant  an  upgraded  discharge  with  the  resultant
benefits.  In view of the above, and absent persuasive evidence to the
contrary, the Board majority finds no compelling  basis  on  which  to
grant the applicant’s request.

4.    The applicant’s case is adequately documented  and  it  has  not
been shown that a personal appearance with  or  without  counsel  will
materially  add  to  our  understanding  of  the  issue(s)   involved.
Therefore, the request for a hearing is not favorably considered.
_________________________________________________________________

RECOMMENDATION OF THE BOARD:

A majority of the  panel  finds  insufficient  evidence  of  error  or
injustice and recommends the application be denied.

_________________________________________________________________

The following members of the  Board  considered  this  application  in
Executive Session on 12 January 2005 under the provisions of  AFI  36-
2603:

                 Ms. Martha J. Evans, Panel Chair
                 Mr. Gregory A. Parker, Member
                 Mr. Alan A. Blomgren, Member

By a majority vote, the Board recommended denial of  the  application.
Ms. Evans voted to upgrade the discharge to general, but does not wish
to submit a  Minority  Report.   The  following  documentary  evidence
relating to AFBCMR Docket Number BC-2004-02271 was considered:

   Exhibit A.  DD Form 149, dated 2 Jul 04, w/atchs.
   Exhibit B.  Applicant's Master Personnel Records.
   Exhibit C.  FBI Report.
   Exhibit D.  Letter, HQ AFPC/DPPRS, dated 2 Aug 04, w/atch.
   Exhibit E.  Letter, SAF/MRBR, dated 6 Aug 04.
   Exhibit F.  Letter, Applicant, dated 12 Aug 04.
   Exhibit G.  Letter, AFBCMR, dated 31 Aug 04.
   Exhibit H.  Letter, AFBCMR, dated 9 Sep 04.
   Exhibit I.  Letter, Applicant, dated 13 Sep 04, w/atchs.





                                   MARTHA J. EVANS
                                   Panel Chair


AFBCMR BC-2004-02271



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

SUBJECT:  AFBCMR Application of

      After considering the evidence available for my review, I  agree
with the minority member of the panel that the applicant’s request  to
upgrade his bad conduct discharge (BCD) with service characterized  as
under other than honorable conditions (UOTHC) should be granted.

      While the applicant’s BCD may  have  been  appropriate  for  the
circumstances at the time, I  note  he  has  lived  with  its  adverse
effects for more than 46 years.  According  to  the  FBI  report,  two
months after his separation, while he  still  in  his  teens,  he  was
arrested for larceny and burglary and sentenced to confinement.  Since
that time, however, he has been a responsible citizen.  In  fact,  the
Chief of Police in his hometown confirmed the applicant  has  been  an
outstanding resident for over 20 years  and,  to  his  knowledge,  has
never had a problem with any law enforcement.  In  addition,  I  noted
the applicant provided additional supporting statements  attesting  to
his character and his being an asset to the community.


      Certainly I do not condone the behavior that  led  to  his  BCD;
nonetheless, since it serves no useful purpose to the Air Force or  to
society in general to continue the nature of  his  discharge  at  this
late date,  it  is  my  decision  that  the  characterization  of  his
discharge should be upgraded to general (under  honorable  conditions)
on the basis of clemency.





                                  JOE G. LINEBERGER
                                  Director
                                  Air Force Review Boards Agency


AFBCMR BC-2004-02271



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 14 May 1958, he
was discharged with service characterized as general (under honorable
conditions).




            JOE G. LINEBERGER
            Director
            Air Force Review Boards Agency