RECORD OF PROCEEDINGS
AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS
IN THE MATTER OF: DOCKET NUMBER: BC-2010-03683
COUNSEL: NONE
HEARING DESIRED: NO
________________________________________________________________
THE APPLICANT REQUESTS THAT:
His under other than honorable conditions (UOTHC) discharge be
upgraded to honorable.
________________________________________________________________
THE APPLICANT CONTENDS THAT:
He is homeless, has no income or employment, and cannot access
the Department of Veterans Affairs (DVA) benefits. He was
advised at the time of discharge that his character of service
would be upgraded to honorable after one year.
In support of his appeal, the applicant provides a copy of his
DD Form 214, Report of Separation from Active Duty, issued in
conjunction with his 22 Oct 74 discharge.
The applicants complete submission, with attachment, is at
Exhibit A.
________________________________________________________________
STATEMENT OF FACTS:
The applicant enlisted in the Regular Air Force on 5 Aug 71 and
was progressively promoted to the grade of airman first class
(A1C/E-3).
The squadron commander initiated administrative discharge action
against the applicant for misconduct, specifically, civil
confinement. The underlying basis for this action was a
conviction of aggravated assault by the District Court of the
State of Montana with a sentence of not less than five years.
After consulting with counsel and having been advised of his
rights, the applicant exercised his right to a hearing before a
board of officers. The board determined the applicant should be
separated with an undesirable discharge, without Probation and
Rehabilitation (P&R). The Numbered Air Force staff judge
advocate recommended an undesirable discharge, without P&R.
Based on the applicant being convicted by the civil court and
under the Uniform Code of Military Justice (UCMJ) the maximum
punishment for aggravated assault was confinement for a term in
excess of one year. The discharge authority approved the
undesirable discharge without P&R.
The applicant was discharged under the provisions of AFR 39-12,
on 22 Oct 74, by reason of misconduct civil court conviction,
with service characterized as UOTHC. He was credited with
2 years, 6 months, and 16 days of active duty service.
Pursuant to the Boards request, the Federal Bureau of
Investigation, Clarksburg, West Virginia, provided an
investigative report, which is attached at Exhibit C.
On 31 Jan 11, a copy of the FBI report was forwarded to the
applicant for comment. At that time, he was also invited to
provide additional evidence pertaining to his activities since
leaving the service (Exhibit D). However, as of this date, no
response has been received by this office.
________________________________________________________________
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 find no evidence of an error or injustice
that occurred during the discharge process. Based on the
available evidence of record, it appears the discharge was
consistent with the substantive requirements of the discharge
regulation and within the commander's discretionary authority.
The applicant has provided no evidence which would lead us to
believe the characterization of the service was contrary to the
provisions of the governing regulation, unduly harsh, or
disproportionate to the offenses committed. We also find
insufficient evidence to warrant a recommendation that the
discharge be upgraded on the basis of clemency. We have
considered the available evidence of record; however,
considering his overall record of service, the FBI Report of
Investigation, and the lack of post service information since
his discharge, we are not persuaded that an upgrade of the
characterization of his discharge is warranted. Therefore, in
the absence of evidence to the contrary, we find no basis upon
which to recommend granting the relief sought.
________________________________________________________________
THE BOARD DETERMINES THAT:
The applicant be notified the evidence presented did not
demonstrate the existence of material error or injustice; the
application was denied without a personal appearance; and 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 AFBCMR Docket
Number BC-2010-03683 in Executive Session on 3 March 2011, under
the provisions of AFI 36-2603:
The following documentary evidence was considered:
Exhibit A. DD Form 149, dated 30 Sep 10.
Exhibit B. Applicant's Master Personnel Records.
Exhibit C. FBI Report of Investigation.
Exhibit D. Letter, AFBCMR, dated 31 Jan 11, w/atchs.
Panel Chair
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