RECORD OF PROCEEDINGS
             AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS


IN THE MATTER OF:      DOCKET NUMBER:  BC-2001-02110
            INDEX CODE:  110.00

            COUNSEL:  NONE

            HEARING DESIRED:  YES

MANDATORY CASE COMPLETION DATE:  28 AUG 07

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APPLICANT REQUESTS THAT:

His undesirable discharge be upgraded.

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APPLICANT CONTENDS THAT:

In July 1950, he was convicted of breaking and entering.   He  indicates  he
is 76 years old and believes his discharge should be upgraded.

In support of his appeal, the applicant provided DD  Form  293,  Application
for the Review of Discharge or  Dismissal  from  the  Armed  Forces  of  the
United States.

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

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STATEMENT OF FACTS:

On 12 February 1948, the applicant enlisted in the Regular Air Force in  the
grade of private for a period of three years.

On 29 July 1950, the applicant was  convicted  by  the  State  of  Oklahoma,
Garfield County, for breaking and entering.  He was sentenced to  two  years
confinement in the State Penitentiary.

On 9 August 1950,  the  applicant’s  commander  initiated  discharge  action
against him for the July 1950 civil conviction.

On 16  August  1950,  the  applicant  was  discharged  with  an  undesirable
discharge in the grade of corporal under  the  provisions  of  AFR  39-22  -
Conviction by Civil Court.  He served two years, six months, and  five  days
on active duty.

On 27 March 1957, the Air Force Discharge Review  Board  (AFDRB)  considered
and denied  the  applicant’s  request  that  his  undesirable  discharge  be
upgraded to an honorable discharge.  They concluded the  evidence  submitted
was insufficient  to  warrant  a  change  in  the  type  or  nature  of  his
discharge.  They further  concluded  the  type  of  discharge  received  was
equitable and proper (Exhibit B).

Pursuant to the Board's request, the Federal Bureau of  Investigation  (FBI)
Report of Investigation,  Clarksburg,  West  Virginia,  provided  an  arrest
record which is  at  Exhibit  C.   The  report  was  not  forwarded  to  the
applicant because the only entry was the civil  conviction  -  breaking  and
entering while on active duty.

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AIR FORCE EVALUATION:

AFPC/DPPRS recommends denial.  DPPRS states based on  the  documentation  on
file in the master personnel records, the discharge was consistent with  the
procedural and substantive requirements of the discharge regulation and  was
within the discretion of the discharge authority.

The applicant did  not  submit  any  evidence  or  identify  any  errors  or
injustices that occurred in the discharge processing.  Nor  did  he  provide
facts warranting a change to his character of service.

The DPPRS complete evaluation is at Exhibit D.

HQ AFPC/JA recommends denial.  JA states  the  application  was  not  timely
filed and should be denied on that basis  alone.   The  applicant  possessed
all the information necessary to pursue his claim long  before  the  statute
of limitations expired and he offers no meaningful explanation  for  why  he
waited 56 years for his discharge to be reviewed by the AFBCMR  other  than:
“Give me a break!! I’m 76 years old.”  In their opinion,  the  interests  of
justice would not be served by excusing the applicant’s  failure  to  submit
this issue within the required time period; such waivers should  be  limited
to situations to preclude an actual injustice.

Timeliness aside, the applicant’s  claim  also  fails  on  the  merits.   To
obtain relief, the applicant must show by a preponderance  of  the  evidence
there exists some error or injustice warranting  corrective  action  by  the
Board.  The United States Claims Court has repeatedly defined  an  injustice
in the context of BCMR cases as  “treatment  by  military  authorities  that
shocks  the  sense  of  justice.”   The  applicant  provides  no  persuasive
evidence that  his  discharge  characterization  did  not  comply  with  the
requirements contained in the version of AFR 39-22 in effect at the time  he
was administratively separated.  There is no  error  or  injustice  in  this
case.

The JA complete evaluation is at Exhibit E.

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APPLICANT'S REVIEW OF AIR FORCE EVALUATION:

On 7 April 2006, copies of the Air Force evaluations were forwarded  to  the
applicant for review and comment within 30 days (Exhibit  F).   As  of  this
date, this office has received no response.

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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  upgrade  of  the  applicant’s
discharge.  After a thorough review of the evidence  provided,  we  are  not
persuaded  that  the  applicant’s  discharge  and  characterization  of  his
service are erroneous or unjust.  Evidence  has  not  been  presented  which
would show that the appropriate standards  were  not  applied  or  that  the
applicant was not afforded all the rights to which entitled at the  time  of
his discharge.  Therefore, we agree with the  opinions  and  recommendations
of  the  Air  Force  offices  of  primary  responsibility  and  adopt  their
rationale as the basis for our conclusion that the applicant  has  not  been
the victim of an error or injustice.  The only other  basis  upon  which  to
upgrade his discharge would be based on clemency.  However,  he  has  failed
to provide documentation pertaining to his post-service activities.   Should
he provide such documentary evidence we would be willing to  reconsider  his
appeal.  Otherwise, we find no basis upon which to  favorably  consider  his
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 involved.  Therefore, the request  for
a hearing is not favorably considered.

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THE BOARD DETERMINES THAT:

The applicant be notified the evidence presented  did  not  demonstrate  the
existence of an error or an injustice; the application was denied without  a
personal appearance; and 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-2001-
02110 in Executive Session on 13 June 2006, under the provisions of AFI  36-
2603:

                 Ms. Kathleen F. Graham, Panel Chair
                 Ms. Karen A. Holloman, Member
                 Mr. Wallace F. Beard, Jr., Member

The following documentary evidence was considered:

   Exhibit A.  DD Form 149, dated 25 Feb 06, w/atchs.
   Exhibit B.  Applicant's Master Personnel Records.
   Exhibit C.  FBI Report of Investigation.
   Exhibit D.  Letter, AFPC/DPPRS, dated 24 Mar 06.
   Exhibit E.  Letter, AFPC/JA, dated 31 Mar 06.
   Exhibit F.  Letter, SAF/MRBR, dated 7 Apr 06, w/atch.




                 KATHLEEN F. GRAHAM
                 Panel Chair