RECORD OF PROCEEDINGS
AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS
IN THE MATTER OF: DOCKET NUMBER: BC-2007-00991
INDEX CODE: 110.02
COUNSEL: NONE
HEARING DESIRED: NO
MANDATORY CASE COMPLETION DATE: 1 OCT 08
___________________________________________________________________
APPLICANT REQUESTS THAT:
His undesirable discharge be upgraded.
___________________________________________________________________
APPLICANT CONTENDS THAT:
The only thing he did wrong while in the service was being absent without
leave (AWOL) one time to witness the birth of his unborn son.
He would like his discharge upgraded so he can receive benefits and
collect social security.
In support of his application, the applicant submits his DD Form 214.
The applicant's complete submission, with attachments, is at Exhibit A.
___________________________________________________________________
STATEMENT OF FACTS:
The applicant enlisted in the Air Force (AF) on 4 January 1951 as a
private (Pvt) for a period four years.
The applicant was tried and convicted by Special Court-Martial on 18 June
1952 for being AWOL from 19 March through 14 May 1952. He was sentenced
to confinement at hard labor, and forfeiture of pay.
On 17 November 1952, the applicant was notified of his commander’s intent
to recommend him for discharge from the Air Force under the provisions of
Air Force Regulation (AFR) 39-22 for a conviction by a civil court. The
specific reason for the discharge action was:
On 15 September 1952, the applicant was tried and convicted by
civil authorities for the felony offense of murder without malice.
The applicant was discharged on 2 December 1952 in the grade of airman
basic (AB) under the provisions of AFR 39-22. He had 1 year, 5 months
and 14 days of military service. He had 226 days of lost time.
Pursuant to the Board’s request, the FBI provided a copy of an
Investigation Report pertaining to the applicant (Exhibit C).
___________________________________________________________________
AIR FORCE EVALUATION:
None. The applicant has not shown the characterization of his discharge
was contrary to the provisions of AFR 39-22, Enlisted Personnel,
Disposition of Individuals Convicted by Civil Court (Exhibit D). Nor has
the applicant shown the nature of the discharge was unduly harsh or
disproportionate to the offense committed. Notwithstanding the absence
of error or injustice, the Board has the prerogative to grant relief on
the basis of clemency if so inclined.
___________________________________________________________________
APPLICANT'S REVIEW OF AIR FORCE EVALUATION:
On 16 May 2007, the Board staff forwarded the applicant a copy of the FBI
report for his review and comment within 30 days. As of this date, no
response has been received by this office (Exhibit E).
The applicant in response to the FBI report submitted a letter clarifying
the incidents on the report (Exhibit F).
___________________________________________________________________
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. We took notice of the applicant's
complete submission in judging the merits of the case; however, we agree
with the opinion and recommendation of the Air Force and adopt its
rationale as the basis for our decision that the applicant has failed to
sustain his burden of proof that he has suffered either an error or an
injustice. Based on the documentation in the applicant's records, it
appears that the processing of his service and the characterization of the
discharge were appropriate and accomplished in accordance with Air Force
regulation. Therefore, in the absence of evidence to the contrary, we find
no compelling basis 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 AFBCMR Docket Number BC-2007-
00991 in Executive Session on 8 August 2007 under the provisions of AFI 36-
2603:
Mr. James W. Russell III, Panel Chair
Mr. Grover L. Dunn, Member
Mr. Clarence R. Anderegg, Member
The following documentary evidence was considered:
Exhibit A. DD Form 149, dated 8 Feb 07, w/atch.
Exhibit B. Applicant's Master Personnel Records.
Exhibit C. FBI Report.
Exhibit D. AFR 39-22, Enlisted Personnel, Disposition of
Individuals Convicted by Civil Court.
Exhibit E. Letter, AFBCMR, dated 16 May 07.
Exhibit F. Letter, Applicant, dated 21 May 07.
JAMES W. RUSSELL III
Panel Chair
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