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AF | BCMR | CY2009 | BC-2009-01283
Original file (BC-2009-01283.doc) Auto-classification: Approved

                            RECORD OF PROCEEDINGS
             AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS

      IN THE MATTER OF:            DOCKET NUMBER:  BC-2009-01283
            INDEX CODE: 110.00
            ------------          COUNSEL:  NONE
                                   HEARING DESIRED:  NO

________________________________________________________________

APPLICANT REQUESTS THAT:

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

_________________________________________________________________

APPLICANT CONTENDS THAT:

He was convicted and sentenced to 25 years  in  prison  for  breaking  and
entering as a result of unfair treatment by a southern judicial system.

In support of his appeal the  applicant  provides  a  statement  from  his
representative, and documents related to his appeal.

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

_________________________________________________________________

STATEMENT OF FACTS:

The applicant enlisted in the Regular Air Force on 1 Mar 71, for a  period
of four years.

On 18 Feb 76, he was notified of his commander's intent to  recommend  him
for an undesirable discharge for  Misconduct  because  of  a  civil  court
disposition.

The commander stated the following reasons for the proposed discharge:

        a. Article 15, on 8 Jun 73, for failure to go.


        b. Article 15, on 9 Apr 74, for stealing from the Base Exchange.

        c. Letter of Reprimand, on 11 Mar 75, for  having  females  in  the
           dormitory.



        d. Civil Court Conviction, on 10 Oct 75, for burglary and sentenced
           to 25 years of hard labor.

He was advised of his rights in this matter.  He  consulted  with  counsel
and elected to exercise his right to a hearing  before  an  administrative
discharge board and submitted statements in his own behalf.

On 21 May 76, the applicant was notified of  an  administrative  discharge
board hearing.  On 7 Jun 76, the board  convened  and  recommended  he  be
discharged from the service  for  misconduct  because  of  a  civil  court
disposition, with an undesirable discharge.

A legal review was conducted  on  23  Jun  76,  in  which  the  staff  judge
advocate recommended that he be  separated  with  an  undesirable  discharge
characterization without probation and rehabilitation.

The discharge  authority  approved  the  discharge  and  on  8  Jul  76  the
applicant was discharged in the grade of sergeant for misconduct, under  the
provisions of AFR 39-12.  He was given a UOTHC  discharge  characterization.
He served a total of five years,  four  months,  and  three days  of  active
service.

On 3 Aug 09, a request for post-service information  was  forwarded  to  the
applicant for response within 30 days (Exhibit C).

On 17 Aug 09, the applicant provided a statement  from  his  representative,
and three character reference letters (Exhibit D).

________________________________________________________________

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.  The Board  finds  no  impropriety  in  the
characterization of applicant's  discharge.   It  appears  that  responsible
officials applied appropriate standards in effecting the separation, and  do
not find persuasive evidence that pertinent  regulations  were  violated  or
the applicant was not afforded all the rights to which entitled at the  time
of discharge.  The applicant has  not  shown  the  characterization  of  the
discharge was contrary to the
provisions of the governing regulation, nor has it been shown the nature  of
the  discharge  was  unduly  harsh  or  disproportionate  to  the   offenses
committed.  Under our broader mandate and  after  careful  consideration  of
all the facts and circumstances of applicant's case,  the  majority  of  the
Board is persuaded that he has been a productive  member  of  society  since
leaving the service.  In view of this, the majority of  the  Board  believes
it would be an injustice for him to continue to suffer the  adverse  effects
of the discharge he received over 23 years ago.  Therefore, the majority  of
the Board believes an upgrade of the  characterization  of  his  service  to
general (under honorable conditions) is warranted on the basis of  clemency.
 Accordingly, the majority of the  Board  recommends  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 8 Jul 76, he was discharged  with
service characterized as general (under honorable conditions).

_______________________________________________________________

The following members of the Board considered AFBCMR Docket Number  BC-2009-
01283 in Executive Session on 28 Oct 09, under the  provisions  of  AFI  36-
2603:

      Mr. ----------, Panel Chair
      Mr. ----------, Member
      Ms. ----------, Member

By a majority vote, the Board voted to correct the  record  as  recommended.
Ms. Cohen voted to deny the applicant’s appeal, but elected not to submit  a
minority report.  The following documentary evidence was considered:

      Exhibit A.  DD Form 149, undated, w/atchs.
      Exhibit B.  Applicant's Master Personnel Records.
      Exhibit C.  Letter, AFBCMR dated, 3 Aug 09, w/atch.
      Exhibit D.  Letter, Applicant, dated, 17 Aug 09, w/atchs.





                                   ---------------
                                   Panel Chair

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