RECORD OF PROCEEDINGS
         AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS

IN THE MATTER OF:      DOCKET NUMBER:  BC-2007-00771
            INDEX CODE:  110.02

      XXXXXXX    COUNSEL:  NONE

            HEARING DESIRED: NO


MANDATORY CASE COMPLETION DATE:  14 SEP 2008


___________________________________________________________________

APPLICANT REQUESTS THAT:

His undesirable discharge be upgraded.

___________________________________________________________________

APPLICANT CONTENDS THAT:

He received, an other than honorable conditions characterization of
service for stealing a radio he was  just  borrowing  from  another
soldier; however the Air Police came and sent him to jail  for  six
months, resulting in his subsequent discharge.  Applicant was  only
17 years of age at the time and did not realize the rights  he  had
and the consequences of his actions.  The  offense  was  minor  and
should not have resulted in discharge

In support of  his  appeal,  applicant  submitted  a  copy  of  his
DD Form 214, Armed Forces of the United States Report  of  Transfer
or Discharge, dated 28 Nov 56 and a memo from  the  Texas  Veterans
Commission, dated 9 Mar 07.

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

___________________________________________________________________

STATEMENT OF FACTS:

Applicant enlisted in the Regular Air Force on 23  Feb  56  in  the
grade of airman basic for a period  of  four  years.   His  highest
grade held was airman third class.

On 28 Sep 56, applicant was convicted by Summary Court-Martial  for
stealing one (1) Coronado Table Model Radio of a value of less than
twenty dollars ($20), the  property  of  another  airman.   He  was
sentenced to CHL for 30 days and forfeiture of $50.

On  or  about  24   Oct   56,   applicant’s   commander   initiated
administrative  discharge  action   against   the   applicant   for
unfitness; on that same date, after consulting with legal  counsel,
applicant acknowledged  receipt  of  the  administrative  discharge
action and waived his entitlement  to  appear  before  a  board  of
officers and requested discharge in lieu of board proceedings.   He
further acknowledged he understood  that  if  his  application  was
approved, that his separation could be under conditions other  than
honorable and that he could receive an undesirable  discharge,  and
this may deprive him of rights as a veteran under both federal  and
state legislation.

On 20 Nov 56, the group commander approved an undesirable discharge
and  directed  that  the  applicant  be  issued  a   DD Form 258AF,
“Undesirable Discharge Certificate.”  On 3 Aug  55,  applicant  was
discharged  under  the  provisions  of  AFR 39-17,   with   service
characterized as under other than  honorable  conditions.   He  was
credited with 7 months and 12 days active service (excludes 54 days
of lost time due to two periods of confinement).

Pursuant  to  the  Board’s   request,   the   Federal   Bureau   of
Investigation, Clarksburg, West Virginia, provided an investigative
report which is attached at Exhibit C.


___________________________________________________________________

AIR FORCE EVALUATION:

None.  The applicant has not  shown  the  characterization  of  his
discharge was contrary to the provisions of AFR 39-17A  (unfitness)
(extract copy of applicable portion attached as  Exhibit  D).   Nor
has he shown the nature  of  the  discharge  was  unduly  harsh  or
disproportionate to the offenses committed.  At  the  time  of  the
applicant’s discharge, AFR 39-17A, paragraph 8,  stated  that  when
discharged because of unfitness, an Undesirable Discharge (UD) will
be furnished.  However, in 1959, AFR 39-17  was  changed  to  state
that when an airman discharged  under  this  regulation  should  be
furnished  an  undesirable   discharge,   unless   the   particular
circumstances in a given  case  warrants  a  general  or  honorable
discharge.  Criteria for the issuance of an  undesirable,  general,
or honorable discharge is outlined in paragraph 9, AFR  39-10  (See
Exhibit E).  Notwithstanding the absence of error or injustice, the
Board has the prerogative to grant relief on the basis of  clemency
if so inclined.

Attached at Exhibit F is a memorandum prepared  by  the  Air  Force
Review  Boards  Agency  Legal  Advisor  addressing  the  issue   of
characterization of service and how standards  have  changed  since
1959.

___________________________________________________________________

APPLICANT'S REVIEW OF THE FBI REPORT:

A copy of the FBI Report of  Investigation  was  forwarded  to  the
applicant on 20 Apr 07 for review and comment within 30  days.   As
of this  date,  no  response  has  been  received  by  this  office
(Exhibit G).

___________________________________________________________________

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.  The Board finds  no  impropriety  in  the  characterization  of
applicant's  discharge.   It  appears  that  responsible  officials
applied appropriate standards in effecting the separation,  and  we
do not find persuasive evidence  that  pertinent  regulations  were
violated or that applicant was not afforded all the rights to which
entitled at the time of discharge.  Considered alone,  we  conclude
the discharge proceedings were proper and characterization  of  the
discharge was appropriate to the existing circumstances.

4.  Consideration of this Board, however, is  not  limited  to  the
events which precipitated the discharge.  We have  a  Congressional
mandate  which  permits  consideration  of  other  factors;   e.g.,
applicant's background, the overall quality of service,  and  post-
service activities and accomplishments.  Further, we may  base  our
decision on matters of equity and clemency rather  than  simply  on
whether rules and  regulations  which  existed  at  the  time  were
followed.  This is a  much  broader  consideration  than  officials
involved in the discharge were permitted, and our  decision  in  no
way discredits the validity of theirs.

5.  However, insufficient relevant evidence has been  presented  to
demonstrate the existence of  error  or  injustice.   We  found  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.   In
addition, based on his overall record of service, the events  which
precipitated the discharge, and the contents of the FBI report,  we
are not persuaded that an upgrade of the  characterization  of  his
discharge is warranted on the basis of clemency.

___________________________________________________________________

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-2007-00771 in Executive Session  on  26  June  2007,  under  the
provisions of AFI 36-2603:

      Ms. Patricia J. Zarodkiewicz, Vice Chair
      Mr. Jeffery R. Shelton, Member
      Ms. Dee R. Reardon, 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.  FBI Report of Investigation.
    Exhibit D.  Air Force Regulation 39-17A.
    Exhibit E.  Air Force Regulation 39-10.
    Exhibit F.  Memorandum, SAF/MRB Legal Advisor, 17 Apr 07.
    Exhibit G.  Letter, AFBCMR, dated 25 Apr 07.




                                   PATRICIA J. ZARODKIEWICZ
                                   Vice Chair