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AF | BCMR | CY2006 | BC-2006-01015
Original file (BC-2006-01015.doc) Auto-classification: Denied


                            RECORD OF PROCEEDINGS
             AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS


IN THE MATTER OF:            DOCKET NUMBER:  BC-2006-01015
                             INDEX CODE: 106.00
      XXXXXXX                COUNSEL:  None

                             HEARING DESIRED:  No

MANDATORY CASE COMPLETION DATE:  5 Oct 07

_________________________________________________________________

APPLICANT REQUESTS THAT:

His 1970 under  other  than  honorable  conditions  (UOTHC)  (formerly
undesirable) discharge be upgraded.

_________________________________________________________________

APPLICANT CONTENDS THAT:

The records are unjust.  He was told by his military attorney that  he
would receive a better discharge.  This injustice has hindered him  in
all aspects of his life.

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

_________________________________________________________________

STATEMENT OF FACTS:

The applicant enlisted in the Regular Air Force for a period  of  four
years on 16 May 69.

According to Special Court-Martial Order No. 2, dated 30 Jan  70,  the
applicant  was  convicted  by  special  court-martial  (SCM)  for  the
following:  Unlawfully striking a fellow airman on the  forehead  with
his fist on 5 Dec 69; failing to go to his appointed place of duty  on
6 Dec 69 and on 22 and 23 Dec 69.  He was sentenced to  forfeiture  of
$82.00 per month for two months, confinement at  hard  labor  for  two
months, and reduction from airman to airman basic.

Psychiatric evaluation on 25 Mar 70 found the applicant  was  free  of
mental  defect  or  derangement,  and  had  the  mental  capacity   to
understand the nature and probable consequence of all of his acts.  He
was found  to  have  intact  judgment  and  insight  as  well  as  the
capability to distinguish between right and wrong.

On  27 Mar  70,  court-martial  charges  were  preferred  against  the
applicant for the following:  Without authority, failing to go to  his
appointed place of duty at the time  prescribed  for  the  period  17-
21 Mar 70; and failing to obey a  direct  order  from  a  commissioned
officer on 25 and 26 Mar 70.

On 28 Mar 70, after being advised of his rights  and  privileges,  the
applicant requested to be discharged for the good of the service.   He
understood that if his  request  was  approved  he  could  receive  an
undesirable discharge.  He submitted statements in his behalf.

On 30 Mar 70, the applicant’s military counsel requested a psychiatric
examination to determine whether or not the applicant suffered from  a
character-behavior disorder.  The applicant was evaluated on 6 Apr  70
and diagnosed with a character and behavior disorder, namely  passive-
aggressive personality, of several years’ duration.  The diagnosis did
not  qualify  for  action  under  existing  medical  regulation.   The
applicant  provided  an  affidavit  on  6 Apr  70  in  mitigation  and
extenuation concerning the charges against him.

On 7 Apr 70, the applicant’s  commander  recommended  the  applicant’s
request for discharge in lieu of trial  by  special  court-martial  be
accepted and the applicant be separated with an undesirable  discharge
for  character  and   behavior   disorder,   without   probation   and
rehabilitation (P&R).  The case was found legally sufficient  and,  on
8 Apr  70,  the  discharge  authority  approved  separation  with   an
undesirable discharge.

The applicant was separated in the grade of airman basic on 14 Apr 70,
with UOTHC (formerly undesirable) discharge, after  9  months  and  10
days of active service.

On 11 Jul 77, the Air Force Discharge Review Board (AFDRB) denied  the
applicant’s request to upgrade his UOTHC discharge.

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.

_________________________________________________________________

AIR FORCE EVALUATION:

HQ AFPC/DPPRS recommends the application  be  denied.   Based  on  the
master personnel  records,  the  discharge  was  consistent  with  the
procedural and substantive requirements of  the  discharge  regulation
and was within the discharge authority’s discretion.

A complete copy of the HQ AFPC/DPPRS evaluation is at Exhibit D.

_________________________________________________________________

APPLICANT'S REVIEW OF AIR FORCE EVALUATION:

A complete copy of the Air  Force  evaluation  was  forwarded  to  the
applicant on 5 May 06 for review and comment within 30  days  (Exhibit
E).  As of this date, this office has received no response.

A complete copy of the FBI Report was forwarded to the applicant on 31
May 06 for review and comment within 14 days (Exhibit F).  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.    Insufficient relevant evidence has been presented to demonstrate
the existence of probable error or injustice to warrant upgrading  the
applicant’s UOTHC discharge. After being advised  of  his  rights  and
privileges, the applicant requested discharge in  lieu  of  a  special
court-martial and indicated his  understanding  he  could  receive  an
undesirable discharge. He had the mental capacity  to  understand  the
nature  and  probable  consequence  of  his  acts  yet  continued  his
misbehavior. The applicant has provided no persuasive evidence showing
the actions taken against him were based on factors other than his own
misconduct or that his discharge was unjust, improper, or contrary  to
the provisions of the governing regulations in  effect  at  the  time.
Further,  the  contents  of  the  FBI  Report  reveal  his  misconduct
continued after his discharge.  Therefore, we find no basis in  error,
injustice, or clemency on  which  to  recommend  granting  the  relief
sought in this application.

_________________________________________________________________

THE BOARD DETERMINES THAT:

The  applicant  be  notified  that  the  evidence  presented  did  not
demonstrate the existence of material error  or  injustice;  that  the
application was denied without a personal  appearance;  and  that  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  this  application  in
Executive Session on 22 August 2006 under the provisions  of  AFI  36-
2603:

                 Mr. Robert H. Altman, Panel Chair
                 Mr. Wallace F. Beard, Jr., Member
                 Ms. Karen A. Holloman, Member

The following documentary evidence relating to AFBCMR Docket Number BC-
2006-01015 was considered:

   Exhibit A.  DD Form 149, dated 11 Apr 06, w/atch.
   Exhibit B.  Applicant's Master Personnel Records.
   Exhibit C.  FBI Report.
   Exhibit D.  Letter, HQ AFPC/DPPRS, dated 19 Apr 06.
   Exhibit E.  Letter, SAF/MRBR, dated 5 May 06.
   Exhibit F.  Letter, SAF/MRBC, dated 31 May 06.




                                   ROBERT H. ALTMAN
                                   Panel Chair

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