RECORD OF PROCEEDINGS
AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS

IN THE MATTER OF:	DOCKET NUMBERS:  BC-2002-02833
	INDEX CODE 105.01  105.06  106.04
	 	COUNSEL:  None

	 	HEARING DESIRED:  No

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APPLICANT REQUESTS THAT:

Her 2001 bad conduct discharge (BCD) be upgraded.

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APPLICANT CONTENDS THAT:

She has been out of trouble since the incident. She has been drug free since Jul 00 and has become a certified nursing assistant. She plans to go to nursing school and make a better life for herself.

The applicant’s complete submission is at Exhibit A.

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STATEMENT OF FACTS:

The applicant entered active duty on 14 Oct 98 and was assigned to the 325th Medical Support Squadron at Tyndall AFB, FL, as an information management apprentice.  

On 14 Jun 00, she received a referral Enlisted Performance Report (EPR).  The overall rating was 3, and the rater’s comments indicated the commander had twice reprimanded the applicant for a failed monthly weigh-in and failure to maintain government quarters. The applicant provided a rebuttal.

She was subsequently tried at a general court-martial on 28 Sep 00 for wrongful use of a drug known as Ecstasy more than once between 1 Jan and 31 Jun 00. She and the convening authority had entered into a pretrial agreement wherein the applicant offered to plead guilty, to waive her right to the Article 32 investigation, to request trial by military judge alone, and to cooperate and testify truthfully in three other courts-martial under a grant of immunity in exchange for the convening authority approving no more than 7 months of confinement. She was found guilty. She was sentenced to 8-months’ confinement, forfeiture of all pay and allowances, reduced from airman first class to airman basic, and discharged with a BCD. In accordance with the pretrial agreement, the convening authority on 25 Oct 00 reduced the confinement to 7 months but otherwise approved the sentence.

The case was reviewed by the Air Force Court of Criminal Appeals (AFCCA). On 29 Mar 01, AFCCA affirmed the findings of guilty and the sentence. The applicant did not appeal. The BCD was ordered executed on 26 Apr 01. The applicant was discharged on 1 May 2001. She had 2 years, 1 month and 1 day of active service.

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AIR FORCE EVALUATION:

AFLSA/JAJM advises that Title 10, USC, Section 1552(f) limits the AFBCMR’s ability to correct records related to courts-martial.  Essentially, the Board is without authority to reverse, set aside, or otherwise expunge a court-martial conviction which occurred on or after 5 May 50, but the Board may change a court-martial sentence for the purpose of clemency. The Board should not exercise clemency in this case because the applicant did not serve honorably. The BCD was an appropriate consequence that accurately characterized her military service and crime. Denial is recommended.

A complete copy of the evaluation is at Exhibit C.

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APPLICANT'S REVIEW OF AIR FORCE EVALUATION:

A complete copy of the Air Force evaluation was forwarded to the applicant on 3 Jan 03 for review and comment within 30 days.  As of this date, this office has received no response. 

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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 a thorough review of the evidence of record and applicant’s submission, we are not persuaded that her BCD should be upgraded. The applicant’s contentions are duly noted; however, we do not find these uncorroborated assertions, in and by themselves, sufficiently persuasive to override the rationale provided by the Air Force. The applicant’s service was not honorable. She received a referral EPR and was convicted by general court-martial for use of a controlled substance. The applicant has not shown that the court-martial sentence was in error or unduly harsh. We therefore agree with the recommendation of the Air Force and adopt the rationale expressed as the basis for our decision that the applicant has failed to sustain her burden of having suffered either an error or an injustice. In view of the above and absent persuasive evidence to the contrary, we find no compelling basis to recommend granting the relief sought.

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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 3 April 2003 under the provisions of AFI 36-2603:

The following documentary evidence relating to AFBCMR Docket Number BC-2002-02833 was considered:

   Exhibit A.  DD Form 149, dated 9 Sep 02.
   Exhibit B.  Applicant's Master Personnel Records.
   Exhibit C.  Letter, AFLSA/JAJM, dated 5 Dec 02.
   Exhibit D.  Letter, SAF/MRBR, dated 3 Jan 03.