RECORD OF PROCEEDINGS
         AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS

IN THE MATTER OF:	DOCKET NUMBER:  BC-2001-00310
		INDEX CODE:  110.00

		COUNSEL:  NONE

		HEARING DESIRED:  NO

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APPLICANT REQUESTS THAT:

His bad conduct discharge be upgraded.
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APPLICANT CONTENDS THAT:

It appears the applicant believes he was unjustly punished.

In support of his request, the applicant submits a copy of his DD Form 214.  The applicant’s complete submission, with attachment, is at Exhibit A.
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STATEMENT OF FACTS:

Applicant contracted his initial enlistment in the Regular Air Force on 1 Apr 80.  He was progressively promoted to the grade of staff sergeant (E-5), with an effective date and date of rank of 1 Mar 86.

On 14 Mar 95, applicant was tried before a general court-martial at --- AFB.  He pled guilty to wrongfully using cocaine on divers occasions from on or about 1 Mar 94 to on or about 23 Sep 94.  He was found guilty and sentenced to a bad conduct discharge, confinement for four (4) months and a reduction to the grade of airman basic (E-1).  The sentence was approved by the convening authority on 24 May 95.  On 4 Mar 96, the Air Force Court of Criminal Appeals affirmed the findings and sentence.  On 12 Jul 96, the U.S. Court of Appeals for the Armed Forces denied the applicant’s petition for review.

The applicant received a bad conduct discharge on 14 May 97 under the provisions of AFI 36-3208 (Court-Martial - General Court-Martial Order No. --).  He had completed a total of 16 years, 10 months and 8 days on active duty and was serving in the grade of airman basic (E-1) at the time of discharge.  The applicant’s lost time was during the period of 14 Mar 95 - 20 Jun 95.
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AIR FORCE EVALUATION:

AFLSA/JAJM recommends the application be denied.  JAJM states that there is no legal basis for upgrading the applicant’s discharge.  The applicant had the assistance of counsel in presenting extenuating and mitigating matters to the court and the convening authority.  Specifically, during the trial and pre-trial stages, a military defense counsel and two civilian attorneys represented him.  The applicant was thus afforded all rights granted by statute and regulation.  The applicant provides no compelling rationale to mitigate the approved discharge given the circumstances of the case.  The applicant repeatedly used crack cocaine, which was revealed twice as a result of urinalysis testing.  The maximum punishment for the offenses for which the applicant was convicted was confinement for five years, forfeiture of all pay and allowances and reduction to the lowest grade.  The sentence was well within the legal limits and was an appropriate punishment for the offenses committed.  While clemency is an option, there is no reason for the Board to exercise clemency in this case.  The applicant did not serve honorably and the military judge, convening authority and the appellate court believed a bad conduct discharge was an appropriate consequence that accurately characterized his military service and his crimes.  The applicant presents no evidence to warrant upgrading the discharge.  The AFLSA/JAJM evaluation is at Exhibit D.
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APPLICANT'S REVIEW OF AIR FORCE EVALUATION:

A copy of the Air Force evaluation was forwarded to applicant on 28 Feb 03 for review and response.  As of this date, no response has been received by this office (Exhibit E).
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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 reviewed the applicant’s record and the circumstances surrounding his discharge in 1987.  In this respect, we note that the applicant’s discharge had its basis in his trial and conviction by a duly constituted military court.  We believe it is significant that a substantially harsher punishment was authorized under the UCMJ for the offenses of which the applicant stood convicted.  Therefore, we do not believe he was unjustly punished for his offenses as he asserts.  Considering the extremely serious nature of his infractions against the good order and discipline of the service, we agree with the opinion and recommendation of the Military Justice Division and adopt the rationale expressed as the basis for our decision that the applicant has failed to sustain his burden that he has suffered either an error or an injustice.  In view of the above and absent evidence to the contrary, we find no compelling basis to recommend granting the relief sought in this application.
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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.
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The following members of the Board considered this application in Executive Session on 22 May 03, under the provisions of AFI 36‑2603:

	            Panel Chair
	            Member
	            Member

The following documentary evidence was considered: 

   Exhibit A.  DD Form 149, dated 23 Dec 02.
   Exhibit B.  Applicant's Master Personnel Records.
   Exhibit C.  Letter, AFLSA/JAJM, dated 13 Feb 03.
   Exhibit D.  Letter, SAF/MRBR, dated 28 Feb 03.

                                   
                                   Panel Chair