RECORD OF PROCEEDINGS 

AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS 

 
DOCKET NUMBER: BC-2012-01820 
COUNSEL:   
HEARING DESIRED: NO 

IN THE MATTER OF: 
   
   
 
_________________________________________________________________ 
 
APPLICANT REQUESTS THAT: 
 
His  undesirable  discharge  be  upgraded  to  general  (under 
honorable conditions) or honorable.  
 
_________________________________________________________________ 
 
APPLICANT CONTENDS THAT: 
 
He  was  a  passenger  in  a  vehicle that  had  a  weapon  in  it;  he  had 
no knowledge of and/or connection to the weapon.   
 
He  appeared  in  court  without  an  attorney,  was  found  guilty  and 
sentenced  to  90  days  in  jail.    He  was  unjustly  discharged  for 
being a passenger; he did nothing wrong.  
 
In  a  letter,  dated  17  Oct  12,  the  applicant  states  he  appeared 
before  a  judge  in  Florida  on  an  unrelated  matter  and  was 
informed  that  since  his  1959  arrest  the  Supreme  Court  ruled  in 
Gideon v. Wainwright that defendants have a Constitutional right 
to  legal  assistance.    The  judge  went  on  to  say  that  many  cases 
have  been  overturned  since  this  ruling  and  his  charge  could 
possibly  be  removed  from  his  record.    The  applicant  states  that 
his application for correction is based on the belief that legal 
precedents  since  his  1959 arrest  and  discharge  should  be 
considered.  If he were afforded the opportunity of an attorney, 
he  could  have  been  found  not  guilty  and  finished  his  commitment 
to the Air Force. 
 
In  a  letter,  dated  20  Oct  12,  the  applicant  states  in  1977  he 
appeared  in  a  Florida  court  on  an  unrelated  matter  without  an 
attorney, just like in 1959. 
 
The  applicant's  complete  submission,  with  attachments,  is  at 
Exhibit A. 
 
_________________________________________________________________ 
 
STATEMENT OF FACTS: 
 
On 7 Mar 57, the applicant enlisted in the Regular Air Force.  
 
On  21  Oct  59,  his  commander  notified  him  that  he  was 
recommending  his  discharge  from  the  Air  Force  under  the 
provisions  of  AFR  39-17,  Unfitness.    The  specific  reasons  for 

 

  

 

  

the action was unsatisfactory standards of conduct, attitude and 
character  ratings,  both  present  and  past.    The  applicant 
acknowledged  receipt  of  the  notification  of  discharge.    After 
consulting  with  counsel,  the  applicant  waived  his  right  to  a 
hearing before an administrative discharge board and to submit a 
statement  in  his  own  behalf.    For  a  full  accounting  of  the 
offenses and punishments, please see Exhibit B. 
 
On  18  Nov  59,  the  25th  Air  Division  commander  reviewed  the  case 
and  recommended  the  Western  Air  Defense  Force  commander 
(WADF/CC) approve the applicant’s undesirable discharge.   
 
On  4  Dec  59,  the  WADF/CC  directed  the  applicant  be  discharged 
under  the  provisions  of  AFR  39-17  and  be  issued  an  undesirable 
discharge.   
 
On  28  Dec  59,  the  applicant  was  discharged  with  service 
characterized  as  under  other  than  honorable  conditions  (UOTHC) 
in  the  grade  of  airman  basic  and  issued  a  DD  Form  258AF, 
Undesirable  Discharge  Certificate.    He  served  2  years,  6  months 
and 19 days of total active service. 
 
Pursuant  to  the  Board’s  request,  the  Federal  Bureau  of 
Investigation  (FBI)  provided  a  copy  of  an  Investigative  Report, 
which is at Exhibit C.   
 
On  25  Sep  12,  a  copy  of  the  FBI  report  was  forwarded  to  the 
applicant  for  review  and  comment  within  30  days  which  is  at 
(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.  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  in  the  discharge  processing.    While  the  applicant 
states  that  he  was  not  afforded  legal  counsel,  based  on  the 
available  evidence  of  record,  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 
discharge.    Moreover,  the  evidence  reveals  military  counsel  was 

 

  
2 

 

  

made available to the applicant and he was notified of his right 
to employ civilian counsel if so desired.  In addition, his case 
was reviewed by the Staff Judge Advocate and found to be legally 
sufficient.    Therefore,  we  conclude  that  the  discharge 
proceedings  were  proper  and  characterization  of  the  discharge 
was  appropriate  to  the  existing  circumstances.    In  the  interest 
of  justice,  we  considered  upgrading  the  discharge  on  the  basis 
of  clemency;  however,  after  considering  the  contents  of  the 
applicant's  FBI  report  and  his  overall  quality  of  service,  we 
are  not  persuaded  the  characterization  of  the  applicant’s 
discharge  warrants  an  upgrade  to  general  (under  honorable 
conditions) or to a fully honorable discharge on this basis.  In 
view  of  the  above  and  in  the  absence  of  evidence  to  the 
contrary, we find no basis upon which to favorably consider 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  AFBCMR  Docket 
Number  BC-2012-01820  in  Executive  Session  on  14  Feb  13,  under 
the provisions of AFI 36-2603: 
 
 
 

  
 

 
 

 
 

 
 

 
 

 
 

Panel Chair 
Member 
Member 

Exhibit A.  DD Form 149, dated 24 Apr 12, w/atchs. 
Exhibit B.  Applicant's Master Personnel Records. 
Exhibit C.  FBI Identification Record, dated 13 Jun 12.  
Exhibit D.  Letter, SAF/MRBC, dated 25 Sep 12. 

 
The following documentary evidence was considered: 
 
 
 
 
 
 
 
 
 
 
 
 

 
Panel Chair  

  
  

 
 

 
 

 
 

 
 

 

  

3