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AF | BCMR | CY2007 | BC-2007-00991
Original file (BC-2007-00991.doc) Auto-classification: Denied

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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