RECORD OF PROCEEDINGS
             AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS

IN THE MATTER OF:      DOCKET NUMBER: BC-2007-02240
            INDEX CODE:  110.02
            COUNSEL:  None
            HEARING DESIRED:  NO

MANDATORY CASE COMPLETION DATE: 19 May 2008
_________________________________________________________________

APPLICANT REQUESTS THAT:

His discharge for unfitness be upgraded to general or honorable.
 _________________________________________________________________

APPLICANT CONTENDS THAT:

His last court-martial, after 3 years, 14 months, and  1  day,  was  unjust.
What was unjust in 1957 remains unjust.

He had less than 30 days remaining on his  4-year  enlistment  when  he  was
discharged and previously had been approved  for  a  six-month  “early  out”
because he wanted to attend school.

His commanding officer disliked him and in the end that was all that  seemed
to matter.

His commanding officer had a crush on his girlfriend and threatened  him  in
front of other officers.

His work schedule was changed without him receiving the normal  notification
from his non-commissioned officer in charge of  the  shift.   He  was  later
told by the commander’s clerk that the commander had  changed  the  schedule
and had informed the clerk not to post it to his barrack’s bulletin board.

He has great respect for the military and  has  also  performed  service  on
military bases during the Cold War as a professor teaching U.S.  Air  Force,
Naval, and Marine officers in a Master of Science program  in  International
Relations.

In support of his application, the applicant provided a copy of his DD  Form
214, Special Orders, Naval Orders, and a statement in
his own behalf.

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

_________________________________________________________________




STATEMENT OF FACTS:

The applicant entered the active duty Air Force on 23 Aug 54.

On 23 May 56, the applicant was found guilty by  Summary  Court-Martial  for
unlawfully entering the Number 4 Dining Hall, Building  345,  Ernest  Harmon
Air Force Base.  His sentence consisted of reduction to the grade of  airman
third class and forfeiture of $30.

On 19 Jun 56, the applicant was found guilty by  Summary  Court-Martial  for
being absent without leave (AWOL) and sentenced to  reduction  in  grade  to
airman basic, and forfeiture of $60.

On 14 Nov 57, the applicant was found guilty by  Summary  Court-Martial  for
failure to go.  He was sentenced to 30 days confinement at  hard  labor  and
forfeiture of $65.

Prior to the applicant’s discharge proceedings, his  commander  requested  a
physical and mental evaluation.  Records indicate that  on  2  Dec  57,  the
applicant was found to “be able to distinguish right from wrong  and  adhere
to the right, both then and at the time of his alleged offenses.”

The applicant was discharged for unfitness on 18 Jan 58.

On 23 Jun 58, the Air Force Discharge Review Board  denied  the  applicant’s
request for a discharge upgrade.

Pursuant to the  Board’s  request,  the  Federal  Bureau  of  Investigations
provided an investigative report, 780670S11, which is at Exhibit C.

_________________________________________________________________

AIR FORCE EVALUATION:

None.  At the time of the applicant’s discharge,  AFR  39-17,  paragraph  8,
stated that when discharged because of unfitness, an  Undesirable  Discharge
(UD) will be furnished.  However, in 1959, AFR 39-17 was  changed  to  state
that an airman discharged under  this  regulation  should  be  furnished  an
undesirable discharge, unless the particular circumstances in a  given  case
warrants a general or honorable discharge. Criteria for the issuance  of  an
undesirable, general, or honorable discharge is  outlined  in  paragraph  9,
AFR 39-10 (See  Exhibit  E).    Notwithstanding  the  absence  of  error  or
injustice, the Board has the prerogative to grant relief  on  the  basis  of
clemency if so inclined.

Attached at Exhibit F is a memorandum  prepared  by  the  Air  Force  Review
Boards Agency Legal Advisor addressing  the  issue  of  characterization  of
service and how standards have changed since 1959.

_________________________________________________________________

APPLICANT'S REVIEW OF THE FBI REPORT:

Copies  of  the  FBI  report  and  post-service  information  bulletin  were
forwarded to the applicant on 9 Aug 07 (Exhibit G).  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.    The Board finds no impropriety in the characterization of  applicant's
discharge and the applicant  has  not  shown  the  characterization  of  his
discharge was contrary to the provisions of AFR 39-17, Enlisted Personnel  –
Discharge – Unfitness, copy attached as Exhibit D.  Nor  has  he  shown  the
nature of  the  discharge  was  unduly  harsh  or  disproportionate  to  the
offenses  committed.  It  appears   that   responsible   officials   applied
appropriate standards in effecting  the  separation,  and  we  do  not  find
persuasive evidence that pertinent regulations were  violated  or  that  the
applicant was not afforded all the rights to which entitled at the  time  of
his discharge.  Considered alone,  we  conclude  the  discharge  proceedings
were proper and the characterization of the  discharge  was  appropriate  to
the existing circumstances.

4.    Consideration of this Board, however, is not  limited  to  the  events
which precipitated the discharge.  We have  a  Congressional  mandate  which
permits consideration of other factors; e.g.,  applicant's  background,  the
overall   quality   of   service,   and    post-service    activities    and
accomplishments.  Further, we may base our decision  on  matters  of  equity
and clemency rather than simply  on  whether  rules  and  regulations  which
existed at the time were followed.  This is  a  much  broader  consideration
than officials involved in the discharge were permitted,  and  our  decision
in no way discredits the validity of theirs.

5.    Under our broader mandate and after careful consideration of  all  the
facts and circumstances of the  applicant's  case,  the  Board  Majority  is
persuaded that the applicant has overcome the behavioral  traits  which  led
to  the  contested  discharge.  We  recognize  the  adverse  impact  of  the
discharge the applicant received; and, while it may  have  been  appropriate
at the time, the Board Majority believes it would be an  injustice  for  the
applicant to continue to suffer its effects.  Therefore, the Board  Majority
recommends  the  applicant’s  discharge  be  upgraded  to   general   (under
honorable conditions) as a matter of equity and on the basis of clemency.

_________________________________________________________________

THE BOARD RECOMMENDS THAT:

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

_________________________________________________________________

The following members of the Board considered  Docket  Number  BC-2007-02240
in Executive Session on 18 September 2007, under the provisions of  AFI  36-
2603:

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

By majority vote, the Board voted to correct  the  records  as  recommended.
Mr. Yount declined to submit a minority report.

The following documentary evidence was considered:

    Exhibit A.  DD Form 149, w/atchs, dated 10 Jul 07.
    Exhibit B.  Applicant's Master Personnel Records.
    Exhibit C.  FBI Report.
    Exhibit D.  Extract, AFR 39-17.
    Exhibit E.  Extract, AFR 39-10.
    Exhibit F.  Memorandum, SAF/MRB Legal Advisor, dated
                17 Apr 07.
    Exhibit G.  Letters, AFBCMR, w/atchs, dated 9 Aug 07.




                                   THOMAS S. MARKIEWICZ
                                   Chair










      AFBCMR BC-2007-02240






      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:


            The pertinent military records of the Department of the Air
      Force relating to XXXXX, be corrected to show that on 18 January 1958,
      he was discharged with service characterized as general (under
      honorable conditions).








                                                             JOE G.
      LINEBERGER
                                                             Director
                                                             Air Force
      Review Board Agency