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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