RECORD OF PROCEEDINGS
AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS

IN THE MATTER OF:	DOCKET NUMBER:  02-03391
		INDEX CODE:  110.02
		COUNSEL:  NONE

		HEARING DESIRED:  Not Indicated

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APPLICANT REQUESTS THAT:

His under other than honorable conditions (UOTHC) discharge be upgraded to general (under honorable conditions).

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APPLICANT CONTENDS THAT:

The sentence he received as a result of his court-martial was sufficient punishment for the offense.  He believes that being forced out of the Air Force was excessive and that his commander was trying to make an example out of him.  He would have liked to have stayed in and rebuild his career but was denied probation and rehabilitation even though he was willing to do so.  

In support of his request, applicant provided a copy of his DD Form 293, Application for the Review of Discharge or Dismissal from the Armed Forces of the United States.  His 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 5 Dec 77.  He was progressively promoted to the grade of E-4, having assumed that grade effective and with a date of rank of 1 Sep 80.

On 17 Mar 82, the applicant was notified by his commander of his intent to recommend nonjudicial punishment under Article 15 of the Uniformed Code of Military Justice (UCMJ) for dereliction in the performance of his duties in that he drank alcoholic beverages while on duty.  He was advised of his rights in this matter and acknowledged receipt of the notification on 22 Mar 82.  After consulting counsel, the applicant waived his right to demand trial by court-martial, accepted Article 15 proceedings, and provided a written presentation to his commander.  On 23 Mar 82, his commander determined that he committed one or more of the offenses alleged and imposed punishment on the applicant.  He was ordered to forfeit $75 pay per month for 2 months.  The applicant elected not to appeal punishment. 

On 11 Feb 83, the applicant was notified by his commander of his intent to recommend nonjudicial punishment under Article 15 of the UCMJ for wrongful possession of marijuana and drug paraphernalia.  He was advised of his rights in this matter and acknowledged receipt of the notification on 16 Feb 83.  After consulting counsel, the applicant waived his right to demand trial by court-martial, accepted Article 15 proceedings, and provided a written and oral presentation to his commander.  On 17 Feb 83, his commander determined that he committed one or more of the offenses alleged and imposed punishment on the applicant.  He was reduced to the grade of airman first class, ordered to forfeit $380 pay per month for 2 months, and restricted to the limits of the base for 45 days.  The applicant elected not to appeal his punishment.

On 17 May 83, applicant was tried by special court-martial for a specification of wrongful possession of marijuana, a specification of wrongful use of marijuana, and a specification of wrongful possession of drug paraphernalia.  He plead not guilty to the possession of marijuana and drug paraphernalia charges and guilty to the wrongful use charge.  He was found guilty of wrongful use of marijuana and possession of drug paraphernalia.  His sentence, adjudged on 17 May 83, was confinement at hard labor for 2 months, reduction to the grade of E-1, and forfeiture of $150 pay per month for 2 months. On 7 Jun 83, his sentence was approved and executed.

On 9 Mar 83, applicant was notified by his commander that he was recommending that he be discharged from the Air Force in accordance with AFR 39-10, paragraph 5-49c.  The specific reason for this action was his use of marijuana as evidenced by a urinalysis taken on 6 Jan 83; and his 17 Feb 83, nonjudicial punishment for possession of marijuana and drug paraphernalia.  He was advised of his rights in this matter and acknowledged receipt of the notification on that same date.  The recommendation for discharge was later amended to include his use of marijuana and possession of drug paraphernalia as evidenced by a special court-martial order dated 7 Jun 83.  After consulting counsel, applicant requested a hearing before an administrative discharge board and elected to submit statements on his own behalf.  The administrative discharge board found that he did use marijuana between 16 Dec 82 and 6 Jan 83, he did possess marijuana on 6 Jan 83, he did possess drug paraphernalia on 6 Jan 83, he did use marijuana on 27 Mar 83, and he did possess drug paraphernalia on 27 Mar 83.  The board recommended that he be discharged because of misconduct with an under other that honorable conditions discharge and that he not be offered rehabilitation.  In a legal review of the case, the acting wing staff judge advocate, found the case legally sufficient.  On 17 Aug 83, the discharge authority directed that he be discharged with an under other than honorable conditions discharge, without probation and rehabilitation.  Applicant was discharged from the Air Force on 24 Aug 83.  He served 5 years, 6 months, and 19 days on active duty.  The period 17 May 83 to 16 Jul 83 was considered time lost.

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AIR FORCE EVALUATION:

AFPC/DPPRS recommends denial of the applicant's request.  DPPRS states that the discharge was consistent with the procedural and substantive requirements of the discharge regulation and was within the discretion of the discharge authority.  The applicant did not submit any new evidence or identify any errors or injustices that occurred in the discharge processing.  The DPPRS evaluation is at Exhibit C.

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APPLICANT'S REVIEW OF AIR FORCE EVALUATION:

A copy of the Air Force evaluation was forwarded to the applicant on 22 Nov 02 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 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.  After careful consideration of the applicant's request and the available evidence of record, we see no evidence of an error or injustice that would warrant a change in the characterization of his service.  Evidence has not been presented which would lead us to believe that the actions taken to affect his discharge from the Air Force were improper or contrary to the provisions of the governing regulation in effect at the time, or that the actions taken were based on factors other than his own misconduct.  Given the multiplicity of the offenses he committed against the good order and discipline of the service, it is our opinion that the characterization of his discharge was proper and in compliance with the appropriate directives.  In the absence of evidence to the contrary, we find no basis to recommend favorable consideration of his request.  

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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 02-03391 in Executive Session on 29 Jan 03, under the provisions of AFI 36-2603:

	Panel Chair
	Member
	Member

The following documentary evidence was considered:

    Exhibit A.  DD Form 149, dated 1 Nov 02, w/atch.
    Exhibit B.  Applicant's Master Personnel Records.
    Exhibit C.  Letter, AFPC/DPPRS, dated 13 Nov 02.
    Exhibit D.  Letter, SAF/MRBR, dated 22 Nov 02.