RECORD OF PROCEEDINGS
AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS

IN THE MATTER OF:	DOCKET NUMBER:  01-02120
		INDEX CODE:  102.07, 128.00
		COUNSEL:  NONE

		HEARING DESIRED:  YES

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APPLICANT REQUESTS THAT:

Her late husband be reinstated to his former grade of SSgt (E-5) with back pay and allowances.  

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APPLICANT CONTENDS THAT:

Her late husband did not receive a fair hearing and was erroneously charged with an offense (illicit drug possession) because he was not living with his ex-wife at the time. 

In support of her request, applicant provides a personal statement and a copy of her husband’s death certificate.  Her complete submission, with attachments, is at Exhibit A.

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STATEMENT OF FACTS:

On 7 February 1977, the former member contracted his initial enlistment in the Regular Air Force.  He was progressively promoted to the grade of staff sergeant (E-5) with an effective date and date of rank of 1 August 1980.  The former member continued to reenlist, his last reenlistment on occurring 2 February 1987, in the grade of E-5, for a period of 6 years.  He was reduced to the grade of airman first class (E-3), with a date of rank of 4 June 1992, as a result of his conviction by a Special Court-Martial.  The summary of the facts related to his court-martial conviction and retirement in the grade of airman first class follow.

On 29 April 1992, the former member was found guilty by a court-martial for constructive possession of marijuana, on divers occasions, between on or about 14 April 1987 and 13 April 1992.  His punishment consisted of confinement for three months, reduction from staff sergeant (E-5) to airman first class (E-3), and a reprimand.  On 20 October 1992, a discharge board was held at Keesler AFB, MS, to decide if he should be discharged prior to the expiration of his term of service.  The discharge board found that he was subject to discharge for drug abuse and recommended he be discharged from the Air Force with a general discharge.  The board did not recommend he be offered probation and rehabilitation.  Information extracted from the record reveals that although he was convicted for illegal possession of marijuana on divers occasions, his conviction was derived from his failure to act to stop the illegal conduct (possession and use of marijuana) in his residence.  According to the case file, there was no evidence introduced at his court-martial or at the discharge board hearing to indicate that he personally used marijuana.  Based on the fact that he was credited with more than 19 years of active military service, he requested and was considered for lengthy service probation under the provisions of AFR 39-10, Chapter 6, Section F, paragraph 6-35.  On 18 December 1992, the discharge authority approved a general (under honorable conditions) discharge and recommended lengthy service probation.  The Secretary of the Air Force approved this recommendation on 1 April 1993.

On 15 April 1993, the former member applied for voluntary retirement, to be effective 1 October 1993.  On 7 June 1993, the Secretary of the Air Force determined he did not serve satisfactorily in the higher grade of staff sergeant.  However it was found that he did serve satisfactorily in the grade of senior airman and that he be advanced to that grade on the Retired List upon completion of all required service which would have been effective 5 September 2003.  On 30 September 1993, he was relieved from active duty and retired on 1 October 1993 in the grade of airman first class, after serving 20 years, and 26 days on active duty.  Dates of time lost were 29 April 1992 through 14 July 1992 due to confinement. 

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AIR FORCE EVALUATION:

AFPC/DPPPWB recommends the application be denied.  DPPPWB states that the applicant’s deceased husband was found guilty of possession of marijuana, although the drug was not directly in his possession.  However, he allowed with full knowledge, his spouse at the time, and her friend to possess and use marijuana in his on-base government quarters at Kessler AFB MS.  

DPPPWB also states the application should be time-barred.  The applicant has failed to provide any rationale for the delay in filing an application even though she was present and aware of her husband’s grade during his court-martial.  DPPPWB evaluation is at Exhibit C.
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APPLICANT'S REVIEW OF AIR FORCE EVALUATION:

Applicant responded to the DPPPWB advisory and reiterates that she believes that her late husband’s records should be changed.  The military should not try to prove something at the expense of her husband’s reputation.

In further support of her request applicant provides an additional copy of her original letter dated 11 August 2001.  Applicant’s complete submission is at 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 probable error or injustice.  The former member was reduced in grade from staff sergeant to airman first class as the result of his conviction by a court-martial.  It appears the applicant believes her late husband did not commit an offense triable by a military court.  We are constrained to note that, with respect to the records of courts-martial, Title 10, Unites States Code, Section 1552(f) limits this Board to correction of a record to reflect actions taken by reviewing officials and action on the sentence of a court-martial for the purposes of clemency.  There is no indication in the evidence provided that the sentence of the military court exceeded the maximum punishment allowable under the UCMJ nor do we believe it was unjust based on the offense for which the former member stood convicted.  As a matter of clemency, the former member received lengthy service probation to enable him to reach retirement eligibility.  Between the time of his court-martial and retirement for length of service, the former member was not promoted and, therefore, properly retired in the grade of airman first class.  Other than her own assertions, we have seen no persuasive evidence by the applicant indicating the sentence of the military court was excessive or unjust, further clemency is warranted in this case, or the former member’s substantial rights were violated.  To the contrary, considering the circumstances of this case, we believe Air Force authorities acted humanely toward the former member.  Accordingly, in view of the above, the applicant’s request is not favorably considered.

4.  The applicant's case is adequately documented and it has not been shown that a personal appearance with or without counsel will materially add to our understanding of the issues involved.  Therefore, the request for a hearing is not favorably considered.

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THE BOARD DETERMINES THAT:

The applicant be notified that the evidence presented did not demonstrate the existence of probable 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 5 December 2001, under the provisions of AFI 36-2603:

	Panel Chair
	Member
	Member

The following documentary evidence was considered:

    Exhibit A.  DD Form 149, dated 14 July 2001 w/atchs.
    Exhibit B.  Applicant's Master Personnel Records.
    Exhibit C.  Letter, AFPC/DPPWB, dated 22 August 2001.
    Exhibit D.  Letter, SAF/MIBR, dated 31 August 2001.
    Exhibit E.  Letter, Applicant, dated 10 September 2001,
                w/Atchs.