RECORD OF PROCEEDINGS
AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS
IN THE MATTER OF: DOCKET NUMBER: BC-2013-05844
COUNSEL: NONE
HEARING DESIRED: NO
APPLICANT REQUESTS THAT:
His undesirable discharge be upgraded to honorable.
APPLICANT CONTENDS THAT:
He was charged with a civil offense for which he was later granted a pardon. He is now a disabled 80 year old, who should have received an honorable discharge about 60 years ago. He was young and naïve at the time and not advised of his rights as it relates to the Uniform Code of Military Justice (UCMJ). Although his situation may not be as important, there was a major in the 1870s who received a reprimand for negligence and failure to perform his duty; however, 100 years later all charges were cleared by the Army. Also, in 1945, a navy captain was court-martialed due to the loss of his ship; however, all records of this event were expunged by the Navy. He served four years with pride and honor, never being charged with breaking any air force regulations, and received a good conduct medal. He has six months to a year to live and feel an honorable discharge is warranted.
The applicants complete submission, with attachments, is at Exhibit A.
STATEMENT OF FACTS:
The applicants military personnel records indicate he enlisted in the Regular Air Force on 12 Jul 1951.
On 13 Jun 1955, the applicant pled guilty in criminal court for breaking and entering, and petit larceny. He was found guilty and his case was referred to a probation officer.
On 30 Jun 1955, the applicants commander initiated action for an undesirable discharge from the Air Force. The reasons for the action included the following:
a) The applicant was arrested on a charge of breaking and entering a home with the intent to commit a misdemeanor.
b) The applicant committed petit larceny by stealing a .38 revolver.
On 7 Jul 1955, the discharge authority directed the applicant be furnished a discharge under undesirable conditions.
On 13 Jul 1955, the applicant was furnished an under other than honorable conditions (UOTHC) discharge in the grade of airman first class and issued a DD Form 258AF, Undesirable Discharge Certificate.
On 6 Sep 1955, according to documentation submitted by the applicant, he was placed on probation for five years.
On 26 Jun 1967, according to documentation submitted by the applicant, he was granted a full and complete pardon of his offenses; thereby restoring to him full and complete civil rights.
On 12 Sep 14, a request for post-service information was forwarded to the applicant for comment within 30 days. As of this date, no response has been received by this office (Exhibit C).
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 applicants complete submission was thoroughly reviewed and his comments were duly noted. However, the Board majority is not persuaded an error or injustice occurred in the discharge process. Based on the available evidence of record, it appears the applicants undesirable discharge was consistent with the substantive requirements of the discharge regulation and within the commanders discretionary authority. We note the applicant has cited two cases in which the charges against one military member were cleared and in the other case the members record was expunged. Essentially, the applicant is asserting that the circumstances are significantly close to his request and that similar consideration should be applied to his case and relief be granted. We note that each case is considered on its own merits and the Board evaluates and analyzes the evidence presented in a case and does not recommend relief in one case simply because the situation being reviewed appears similar to another case. In the cases cited by the applicant, while those individuals may have had corrections to their records, the circumstances giving rise to corrections are unknown. Therefore, other than the applicants own assertions, he is not similarly situated to these individuals and the adjudication of their cases is not a controlling issue in the Boards majority decision on the instant case. Furthermore, the applicant has provided no evidence which would lead us to believe the characterization of his service was improper or contrary to the provisions of the governing directive, or unduly harsh. In the interest of justice, we considered upgrading the applicants discharge based on clemency; however, the Board majority found that in the absence of any evidence related to the applicants activities since leaving the service, they find no basis to recommend granting the relief sought on that basis. In view of the foregoing, and in the absence of evidence to the contrary, the Board majority finds no basis exists to upgrade the applicants undesirable discharge to honorable.
RECOMMENDATION OF THE BOARD:
A majority of the Board finds insufficient evidence of error or injustice and recommends the application be denied.
The following members of the Board considered AFBCMR Docket Number BC-2013-05844 in Executive Session on 28 Oct 14, under the provisions of AFI 36-2603:
Panel Chair
Member
Member
By a majority vote, the Board voted to deny the applicants request. voted to correct the record; however, he declined to submit a minority report. The following documentary evidence was considered:
Exhibit A. DD Form 149, dated 18 Dec 13, w/atchs.
Exhibit B. Applicant's Master Personnel Records.
Exhibit C. Letter, SAF/MRBR, dated 12 Sep 14.
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