RECORD OF PROCEEDINGS
             AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS

IN THE MATTER OF:                       DOCKET NUMBER:  BC-2007-02044
                                             INDEX CODE:  106.00
      XXXXXXXXXXXXX                     COUNSEL:  NONE

                                             HEARING DESIRED:  NO


MANDATORY CASE COMPLETION DATE:  27 December 2008


________________________________________________________________

APPLICANT REQUESTS THAT:

His discharge be upgraded.

________________________________________________________________

APPLICANT CONTENDS THAT:

He was only 17 when he entered the military, and he  was  not  convicted  in
any military court.

In support of his appeal, he has provided a copy of his DD Form  214,  dated
17 December 1953.

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

________________________________________________________________

STATEMENT OF FACTS:

Applicant entered the active Air Force on 15 November 1951 for a  period  of
four years and served in a Food Services Squadron.  He  was  apprehended  by
civil authorities on or  about  28 January  1953  and  held  on  charges  of
Larceny.  On 3 March 1953, he was tried in civil court on a charge of  Grand
Larceny, was found guilty as charged, and was sentenced to serve a  term  of
one to two years confinement in the State Penitentiary.  He was  also  tried
before the same court  on  a  charge  of  Petty  Larceny,  found  guilty  as
charged, and was sentenced to confinement for a period of one to  two  years
to run concurrently with the sentence for Grand Larceny.

On 23 November 1953, applicant’s squadron commander  requested  that  he  be
discharged prior to the expiration of his term of service due to  his  being
convicted of a criminal  offense  by  civil  authorities.   The  commander’s
request also indicates applicant was convicted by  a  Summary  Court-Martial
on 17 September 1952 for being AWOL from on or about 9 August 1952 to on  or
about 9 September 1952, and that he was  sentenced  to  restriction  to  the
limits of Nellis AFB, NV,  for  14  days  and  forfeiture  of  $25.00.   His
commander also stated that  his  character  was  poor,  his  efficiency  was
unsatisfactory, and that he had been dropped from the rolls  as  a  deserter
on 8 September 1952 and 17 January 1953.  His DD Form 214 indicates  he  had
a total of 415 days of lost time during his enlistment.

Applicant was discharged on 17 December 1953 in the grade  of  Airman  Third
Class (E-2), with an undesirable discharge characterization,  in  accordance
with AFR 39-22, Enlisted  Personnel:  Disposition  of  Airmen  Convicted  by
Civil Court….  He served a total of 11 months  and  9  days  of  net  active
service.

Pursuant to the Board’s request, the Federal Bureau of Investigation  (FBI),
Clarksburg, WV, provided a copy of  an  Investigation  Report  which  is  at
Exhibit C.

________________________________________________________________

AIR FORCE EVALUATION:

None.  The applicant has not shown the  characterization  of  his  discharge
was contrary to AFR 39-22 (extract copy attached as Exhibit G), nor  has  he
shown that the nature of the discharge was unduly harsh or  disproportionate
to the offense  committed.   At  the  time  of  his  discharge,  AFR  39-22,
paragraph 5, stated that the general policy would be to discharge an  airman
with an undesirable discharge when the airman had been convicted by a  civil
court of an offense punishable by imprisonment for more than one  year,  and
that the consent of the airman  to  such  discharge  or  recourse  to  board
proceedings was unnecessary.  Paragraph 11 further  stated  that  an  airman
discharged under this regulation due to conviction  by  civil  court  of  an
offense  punishable  by  imprisonment  for  more  than  one  year  would  be
furnished a DD Form 258 AF, “Undesirable Discharge.”

The applicant has not alleged any impropriety in the  manner  in  which  the
discharge was conducted, and  the  record  indicates  he  was  afforded  all
rights to which he was entitled.  However, notwithstanding  the  absence  of
error or injustice, the Board has the prerogative to  grant  relief  on  the
basis of clemency if so inclined.

On 17 April 2007, the SAF/MRB  Legal  Advisor  provided  a  generic  opinion
concerning service characterization which is contained at Exhibit D.

________________________________________________________________

APPLICANT'S REVIEW OF AIR FORCE EVALUATION:

Applicant responded on 24 August 2007, stating that he has  lived  in  Wayne
County since 1967 and worked for a plant in Huntington until they  went  out
of business in  1982.   He  then  worked  for  the  Wayne  County  Board  of
Education for 23 years until retiring three years ago.  He has not  been  in
any kind of trouble since 1954, is currently  married  to  his  wife  of  52
years, and has three grown children.  He has  been  a  member  of  the  Lick
Creek Baptist Church for a number of years, been  an  upstanding  member  of
his community, is a former deacon, and has been an  election  worker  for  a
number of years.

He states that when he was in the military, he was too  young  and  was  not
grown-up enough to know the results of what was going on.  He  was  only  17
when he was discharged and it would be different if  he  could  do  it  over
again.  The trouble he got into in 1952 was in his home town  in  Tennessee.
He was home on leave and got into a fight over a  girl  he  knew  before  he
went into the military which resulted in his arrest  which  lead  to  a  bad
discharge.  When he  enlisted,  his  parents  lied  for  him  and  said  his
birthday was 1934 when it was actually 1935 and thought  they  were  helping
him, but he was not grown-up or ready for military life.

Applicant’s complete response is at 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. After a thorough review of the evidence of record, we see no evidence  to
show that the applicant’s  discharge  was  erroneous  or  unjust.   However,
while his undesirable discharge may have been appropriate at  the  time,  we
believe that it would be an injustice for him  to  continue  to  suffer  its
adverse effects more than 50 years later.  Therefore,  in  consideration  of
his current age, his apparent immaturity at the time of his enlistment,  and
his apparent successful transition to civilian life as evidenced by a  clean
FBI report since 1954, the Board is of the opinion  that  corrective  action
based on clemency is appropriate,  and  recommends  that  his  discharge  be
upgraded to general  and  that  his  records  be  corrected  to  the  extent
indicated below.

_______________________________________________________________

THE BOARD RECOMMENDS THAT:

The pertinent military records of the Department of the Air
Force relating to APPLICANT be corrected to show that on
17 December 1953, he was discharged with service  characterized  as  general
(under honorable conditions).

________________________________________________________________

The following members of the Board considered  Docket  Number  BC-2007-02044
in Executive Session on 18 September 2007, under the provisions of  AFI  36-
2603:

                       Mr. Thomas S. Markiewicz, Chair
                       Mr. Patrick C. Daugherty, Member
                       Mr. Joseph D. Yount, Member

The following documentary evidence was considered:

    Exhibit A.  DD Form 149, dated 19 Jun 07, w/atch.
    Exhibit B.  Applicant's Master Personnel Records.
    Exhibit C.  USDOJ FBI Report, dated 27 Jul 07.
    Exhibit D.  Letter, SAF/MRB Legal Advisor, dated 17 Apr 07.
    Exhibit E.  Letter, AFBCMR, dated 17 Aug 07.
    Exhibit F.  Letter, Applicant, dated 24 Aug 07.
    Exhibit G.  AFR 39-22 Extract, dated 23 Sep 53.




                                   THOMAS S. MARKIEWICZ
                                   Chair




AFBCMR BC-2007-02044




MEMORANDUM FOR THE CHIEF OF STAFF

      Having received and considered the recommendation of the Air Force
Board for Correction of Military Records and under the authority of
Section 1552, Title 10, United States Code (70A Stat 116), it is directed
that:

      The pertinent military records of the  Department  of  the  Air  Force
relating to XXXXXXXXXXXXXXXXXXXXX, be corrected to show that on 17  December
1953, he  was  discharged  with  service  characterized  as  general  (under
honorable conditions).









  JOE G. LINEBERGER

  Director

  Air Force Review Boards Agency