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AF | BCMR | CY2007 | BC-2007-02192
Original file (BC-2007-02192.doc) Auto-classification: Denied

RECORD OF PROCEEDINGS
             AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS

IN THE MATTER OF:      DOCKET NUMBER: BC-2007-02192
            INDEX CODE:  110.02
            COUNSEL:  NONE
            HEARING DESIRED:  NO

MANDATORY CASE COMPLETION DATE: Jan 14, 2009

_________________________________________________________________

APPLICANT REQUESTS THAT:

His under other than honorable conditions discharge  be  upgraded  to  under
honorable conditions (general discharge).
_________________________________________________________________

APPLICANT CONTENDS THAT:

As a young man, he made a mistake which resulted in his general discharge.

He has lived with regret for many years and loves his family and country.

His father is a retired master sergeant.

In support of his request, the applicant provided a  copy  of  his  DD  Form
214, Report of Separation  from  Active  Duty,  AF  Form  100,  Request  and
Authorization for Separation, a copy of his discharge notification letter.

The applicant's complete submission, with attachments, is at Exhibit A.

_________________________________________________________________

STATEMENT OF FACTS:

The applicant entered the active duty Air Force on 16  May  72.   He  served
for a period of 1 year, 3 months, and 23 days.

On 10 Nov 72, the applicant received an Article 15 for failure to go at  the
prescribed time to his  appointed  place  of  duty.   Additionally,  he  was
ordered to forfeit $25 and perform extra duty for seven days.

On 13 Dec 72, the applicant was  apprehended  by  civilian  authorities  and
charged with larceny and burglary.  He was released on  bond  pending  court
action on 16 Dec 72.

On 24 May 73, he was indicted on two counts by a Grand Jury for  stealing  a
1972 green Honda valued at $800 and  personal  property  in  the  amount  of
$4,200.  He was sentenced to 7 years and 5 years,  to  run  concurrently  in
the state penitentiary.  The sentence was suspended and  he  was  placed  on
probation for 5 years and ordered to pay court costs.

On 18 Jul 73, the applicant was notified of pending discharge actions  under
AFM 39-12, Separation  for  Unsuitability;  Misconduct,  Personal  Abuse  of
Drugs; Resignation or Request for Discharge for the  Good  of  the  Service;
and Procedures for the Rehabilitation Program, for having been convicted  in
a civilian criminal court for an  offense  for  which  the  maximum  penalty
under the uniform code of military justice   would  include  confinement  in
excess of one year.

On 24 Jul 73, the applicant requested a  board  hearing.   The  hearing  was
conducted on 15 Aug 73.  The board recommended the applicant  be  discharged
from the service for misconduct because of a  civil  court  disposition  and
furnished an undesirable discharge.  It was further recommended that  he  be
considered for rehabilitation procedures with a  conditional  suspension  of
the discharge under Chapter 4, AFM 39-12.

The discharge authority determined the applicant was not a fit  subject  for
probation and  rehabilitation  and  directed  an  undesirable  discharge  be
furnished to the applicant.

The applicant was  discharged  on  13  Sep  73  with  an  under  other  than
honorable conditions discharge.

At the time of  the  applicant’s  discharge,  AFR  39-12,   paragraph  2-23,
stated  that  an  airman  is  subject  to  discharge  for  misconduct   upon
conviction by civil authorities  (foreign  and  domestic)  or  action  taken
which it tantamount to a finding of guilty  of  an  offense  for  which  the
maximum penalty under the uniform code  of  military  justice  is  death  or
confinement for one year or more....  Notwithstanding the absence  of  error
or injustice, the Board has the prerogative to grant relief on the basis  of
clemency if so inclined.

Pursuant to  the  Board’s  request,  the  Federal  Bureau  of  Investigation
provided a copy of an Investigative Report, Number 689842X11,  which  is  at
Exhibit C.

_________________________________________________________________

APPLICANT'S REVIEW OF FBI REPORT EVALUATION:

A copy  of  the  FBI  report  and  post-service  information  bulletin  were
forwarded to the applicant on 9 Aug 07 for  review  and  comment  within  30
days (Exhibit D).   As  of  this  date,  this  office  has  not  received  a
response.

_________________________________________________________________
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 note  the
applicant has not shown the characterization of his discharge  was  contrary
to the provisions of AFR  39-12.   Nor  has  he  shown  the  nature  of  the
discharge was unduly harsh or disproportionate to  the  offenses  committed.
 Additionally, the Board declined to consider  upgrade  of  the  applicant’s
discharge on the basis of clemency.  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  Docket  Number  BC-2007-02192
in Executive Session on 25 September 2007, under the provisions of  AFI  36-
2603:

      Mr. James W. Russell, Panel Chair
      Ms. Josephine L. Davis, Member
      Mr. Don H. Kendrick, Member

The following documentary evidence was considered:

    Exhibit A.  DD Form 149, w/atchs, dated 4 Jul 07.
    Exhibit B.  Applicant's Master Personnel Records.
    Exhibit C.  FBI Report
    Exhibit D.  Letters, AFBCMR, w/atchs, dated 9 Aug 07.



                                   JAMES W. RUSSELL, III
                                   Panel Chair


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