RECORD OF PROCEEDINGS
AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS

IN THE MATTER OF:	DOCKET NUMBER: BC-2002-00690

	 	COUNSEL:  R. CHARLES JOHNSON

	 	HEARING DESIRED:  NO

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APPLICANT REQUESTS THAT:

His Bad Conduct Discharge (BCD) be upgraded to a discharge under honorable conditions.

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THE APPLICANT CONTENDS THAT:

Equitable considerations indicate that his discharge should be recharacterized as being under honorable conditions.

The applicant states that he was young and immature when the offenses occurred.  While he was on leave in California, he experimented with marijuana and again when he returned to his duty station at the insistence of his roommate and several civilian friends.  He occasionally smoked marijuana when it was available at parties, but never made efforts to procure it.  His roommate produced some Lysergic Acid Diethylamide (LSD)  at a party and persuaded him to take some of it.  An Air Force Office of Special Investigation (AFOSI) agent was present at the party and reported his LSD use.  He was interviewed by the AFOSI the following day and immediately admitted his wrongful drug use.  Consideration should be given to the fact that he was not the instigator of the offenses, but merely a follower.  The Board should also consider that the offenses were relatively minor and he acknowledged his wrongdoing at the earliest possible stages of the investigation.  Furthermore, the military judge indicates that he should be considered for the Return to Duty Program (RTDP).  The life-long burden of a BCD is overly severe.

In support of the appeal, the applicant submits his personal statement, a statement from his parents, and documentation regarding his post-service activities (i.e., college transcript, letters of recommendation, and statements from employers).

Applicant’s complete submission, with attachments, is at Exhibit A.

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STATEMENT OF FACTS:

The applicant enlisted in the Regular Air Force for a period of four years on 11 September 1996.

On 27 February 1998, he was charged with three specifications of violating Article 112a of the Uniform Code of Military Justice (UCMJ).  Specifically, for wrongfully using LSD on 5 December 1997; for wrongfully using marijuana on divers occasions between 1 May 1997 and 21 November 1997; and wrongfully possessing marijuana on 5 December 1997.

He was tried by a general court-martial on 3 April 1998 before a military judge for the three specifications of violating Article 112a of the UCMJ.  He was represented by his military defense counsel and entered into a pretrial agreement with the convening authority that, in exchange for his pleas of guilty, the convening authority would cap confinement at eight months.  The military judge sentenced him to a BCD, seven months of confinement, and reduction to the grade of E-1.  

The final court-martial order was issued on 12 March 1999, directing the BCD be executed.

He was discharged on 18 March 1999, with a bad conduct discharge.  He completed 2 years and 16 days of active service, which excludes  174 days of lost time for confinement during the period 3 April 1998 through 23 September 1998.

The United States Air Force Court of Criminal Appeals affirmed the findings and sentence on 8 December 2000.

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AIR FORCE EVALUATION:

AFLSA/JAJM recommends the application be denied. AFLSA/JAJM states, in part, that the applicant’s wrongful use of marijuana and LSD are serious offenses.  As such, a general court-martial was appropriate.  His overall military record, his youth and immaturity, and his admission of illegal drug use were all considered in determining an appropriate sentence.  He has provided no legal justification or excuse for his wrongful drug use.  Although the military judge made an oral recommendation that the applicant be considered for the RTDP, he also stated that he would further review and decide whether to make a written recommendation to the convening authority at the time he authenticated the record of trial.  However, no written recommendation was made.  Furthermore, the convening authority had the applicant’s request before him at the time he took action on the sentence and did not place him in the RTDP.  The applicant could have applied to the Clemency and Parole Board within 30 days after the convening authority action; however, he is silent as to whether he applied.  The applicant may also apply for a Presidential pardon under the provisions of Title 28, Code of Federal Regulations, Section 1.1.  While the Board may correct the applicant’s record related to the action taken by the reviewing authority and on the sentence for the purpose of clemency, the Board is without authority to reverse, set aside, or otherwise expunge the court-martial conviction.  In the applicant’s case, there is no reason to exercise clemency.

The AFLSA/JAJM evaluation is at Exhibit C.

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APPLICANT’S REVIEW OF AIR FORCE EVALUATION:

The applicant’s counsel states that the evaluation fails to point out that not all alleged drug offenses are of the same degree of seriousness.  The applicant was not selling or manufacturing drugs and was not a frequent drug user.  In addition, there is no evidence that he ever searched for drugs on his own.  The evidence used in support of the charge of wrongfully using marijuana came solely from the applicant’s own admission.  The investigation was not about his off-duty marijuana use, but his LSD use at a party.  Similarly, the charge relating to wrongful possession of marijuana was based entirely on residue found on drug paraphernalia in his apartment.  No actual marijuana was found in his apartment.  Furthermore, the evaluation fails to address the failure of the applicant’s trial defense counsel to bring the matter of the RTDP to the attention of the convening authority or assist the applicant in applying to the Clemency and Parole Board.  In the Board’s consideration of Docket Number 98-01606, they based their decision on equitable considerations and upgraded the applicant’s discharge to fully honorable and Reenlistment Eligibility (RE) code to 1J.  In the case of an individual that had a civilian conviction for possession of more than one ounce of marijuana and letters of reprimand for failure to repair and failure to get a haircut (AFDRB 78-01670), the Air Force Discharge Review Board (AFDRB) upgraded the individual’s undesirable discharge.  The AFDRB also upgraded an undesirable discharge to fully honorable of an individual that had smoked marijuana on more than one occasion (AFDRB 78-01731).

The applicant’s complete response 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 timely filed.

3.  Insufficient relevant evidence has been presented to demonstrate the existence of error or injustice.  After thoroughly reviewing the evidence of record and noting the applicant’s complete submission, we find no evidence of error or injustice.  In this respect, we note that the applicant’s discharge appears to be in compliance with the governing Air Force Instruction in effect at the time of his separation.  The applicant was afforded all the rights to which entitled and the general court-martial findings were affirmed by the United States Air Force Court of Criminal Appeals.  The contentions raised by the applicant’s counsel are duly noted; however, we do not find these assertions, in and by themselves, sufficiently persuasive to override the rationale provided by the Air Force Military Justice Division.  The Military Justice Division has adequately addressed the issues of this case and we agree with their opinions and adopt the rationale expressed as the basis for our decision that the applicant has failed to sustain his burden that his separation was inappropriate.  There being insufficient evidence to the contrary, we find no compelling basis to recommend granting the relief sought.

4.  We also find insufficient evidence to warrant a recommendation that the discharge be upgraded on the basis of clemency.  We have considered the applicant’s overall quality of service, the seriousness of the events that precipitated the discharge, his pretrial agreement, and the available evidence related to his post-service activities and accomplishments.  On balance, we do not believe that clemency is warranted.

5.  The applicant’s counsel cites a case previously decided by this Board and two cases previously decided by the Air Force Discharge Review Board (AFDRB) asserting, in essence, that similar clemency consideration should be applied to the applicant’s case and the requested relief be granted.  We disagree.  In this respect, we note that each case before this Board is considered on its own merits, and precedent does not bind us.  While we do strive for consistency in the manner in which evidence is evaluated and analyzed, we are not bound to recommend relief in one circumstance simply because the situation being reviewed appears similar to another case.    Notwithstanding, we have reviewed the cases cited by the applicant’s counsel and based on the seriousness of the applicant’s offense, we are not persuaded that he has been the victim of an error or injustice to warrant favorable consideration of his request.  In the cited AFBCMR case the Board found no impropriety in the discharge characterization; however, as a matter of equity and on the basis of clemency, determined that corrective action was appropriate.  In the applicant’s case, as indicated above, the Board considered the applicant’s overall quality of service, the seriousness of the events that precipitated the discharge, his pretrial agreement, and the available evidence related to his post-service activities and accomplishments, and does not believe that clemency is warranted.  Furthermore, in the AFDRB case cited by the applicant’s counsel, the AFDRB determined that in light of the member’s overall record and evidence to substantiate that his involvement with civilian authorities was a one time incident, there was sufficient evidence to warrant recharacterization of his discharge to General.  Unlike the applicant, this individual did not use LSD and had voluntarily completed the Drug Rehabilitation Program.  We have contacted the Pentagon Reading Room to obtain a copy of the Record of AFDRB Hearing concerning AFDRB 78-01670; however, they have indicated that they do not have a copy of the case.

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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 Docket Number BC-2002-00690 in Executive Session on 23 January 2003 under the provisions of AFI 36-2603:

The following documentary evidence was considered:

    Exhibit A.  DD Form 149, dated 20 Feb 02, w/atchs.
    Exhibit B.  Applicant's Master Personnel Records.
    Exhibit C.  Letter, AFLSA/JAJM, dated 17 May 02.
    Exhibit D.  Letter, SAF/MRBR, dated 28 Jun 02.
	Exhibit E.  Letter, Counsel, dated 9 Jul 02.