RECORD OF PROCEEDINGS
         AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS

IN THE MATTER OF:      DOCKET NUMBER:  BC-2007-00767
            INDEX CODE:  110.02

      XXXXXXX JR.      COUNSEL:  NONE

            HEARING DESIRED: NO


MANDATORY CASE COMPLETION DATE:  14 SEP 2008


___________________________________________________________________

APPLICANT REQUESTS THAT:

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

___________________________________________________________________

APPLICANT CONTENDS THAT:

He made a mistake while on  leave  and  was  incarcerated  for  two
months.  His work record was very good  and  at  the  time  of  his
discharge he was told he would receive a better discharge.

Applicant  states,  he  is  being  evaluated  for  bilateral   lung
transplant and would like to qualify  for  Department  of  Veterans
Affairs (DVA) benefits.

In support of his appeal, applicant submitted a personal statement;
a copy of his DD Form 214, Report of Separation from  Active  Duty,
dated 22 Jan 74, and several letters of character reference.

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

___________________________________________________________________

STATEMENT OF FACTS:

Prior to the events under review, applicant enlisted in the Regular
Air Force on 21 Jul 71 for a period of four years in the  grade  of
airman basic.  He  was  progressively  promoted  to  the  grade  of
sergeant with a date of rank of 1 Jul 73.

On 19 Dec 73, the squadron section  commander  initiated  discharge
action against the applicant for misconduct.  The  reason  for  the
action was based on AFM 39-12, Chapter 2, Section C,  paragraph  2-
23, “discharge for misconduct because of civil court  disposition.”
The specific reason for the proposed action was that  on  or  about
9 Jul 73 applicant was involved in a 3-car automobile accident  and
subsequently charged with manslaughter  on  or  about  17  Jul  73.
Applicant was speeding an estimated  80  mph  in  a  35  mph  zone,
failure to obey a traffic signal, and driving under  the  influence
(DUI).

On  that  same  date,  applicant  acknowledged   receipt   of   the
notification and his squadron section commander recommended him for
a general discharge.  On 4 Jan 74, the staff judge  advocate  found
the case file legally sufficient and concurred with the commander’s
recommendation of a general discharge, without  rehabilitation  due
to the gravity  of  the  offense.   On  7  Jan  74,  support  group
commander accepted the waiver submitted by the applicant in lieu of
board action and after considering all the facts and  circumstances
in the case, recommended applicant be furnished a general discharge
certificate.  On 16 Jan  74,  the  discharge  authority  found  the
applicant’s overall military record not sufficiently meritorious to
warrant the issuance of  an  honorable  or  general  discharge  and
directed  applicant   be   furnished   an   undesirable   discharge
certificate.

On 22 Jan 74, applicant was discharged under the provisions of  AFM
39-12, Chapter 2, Section C, with service  characterized  as  under
other than honorable conditions.  He was  credited  with  2  years,
6 months and  2  days  active  duty  service  (excludes  time  lost
9 Jul 73 to 16 Jul 73 and 19 Nov 73 to 22 Jan 74).

At the time of  the  applicant’s  discharge,  AFM  39-12,  Chap  2,
paragraph 2-25, stated an  airman  discharged  under  this  section
should be furnished an Undesirable Discharge, unless the particular
circumstances in a  given  case  warrant  a  general  or  honorable
discharge (Exhibit C).

Pursuant  to  the  Board’s   request,   the   Federal   Bureau   of
Investigation, Clarksburg, WV, indicated on 16 Jul 07, that, on the
basis of data furnished, they are unable to locate an arrest record
(Exhibit D).

___________________________________________________________________

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.   The  discharge
appears to be in compliance with the governing regulations  and  we
find no evidence to indicate that his separation from the Air Force
was   inappropriate.    The   applicant   has   not    shown    the
characterization of his discharge was contrary to the provisions of
AFR 39-12, Chap 2, Sec C., (Discharge  for  Misconduct  Because  of
Civil Court Disposition).  Nor has  he  shown  the  nature  of  the
discharge was unduly harsh  or  disproportionate  to  the  offenses
committed.  We find no evidence of error in  this  case  and  after
thoroughly reviewing the documentation that has been  submitted  in
support of applicant's appeal, we do not believe  he  has  suffered
from an injustice.  Therefore, based on the available  evidence  of
record, we find no basis upon  which  to  favorably  consider  this
application.

4.  Although   the   applicant   did   not   specifically   request
consideration based on clemency, we also find insufficient evidence
to warrant a recommendation that the discharge be upgraded on  that
basis.  We have considered applicant's overall quality of  service,
the events which precipitated the discharge and available  evidence
related  to  post-service  activities  and   accomplishments.    On
balance, we do not believe that clemency is warranted.

___________________________________________________________________

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 AFBCMR Docket  Number
BC-2007-00767 in Executive Session on 30  August  2007,  under  the
provisions of AFI 36-2603:

      Mr. Jay H. Jordan, Panel Chair
      Mr. James L. Sommer, Member
      Mr. Steven A. Cantrell, Member

The following documentary evidence was considered:

    Exhibit A.  DD Form 149, dated 8 Mar 07, w/atchs.
    Exhibit B.  Applicant's Master Personnel Records.
    Exhibit C.  Air Force Manual 39-12.
    Exhibit D.  FBI Response, dated 16 Jul 07.




                                   JAY H. JORDAN
                                   Panel Chair