RECORD OF PROCEEDINGS
AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS

IN THE MATTER OF:				DOCKET NUMBER:  02-03460
							INDEX CODE:  110.00

    							COUNSEL:  NONE

    							HEARING DESIRED:  NO

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APPLICANT REQUESTS THAT:

His Bad Conduct Discharge (BCD) be upgraded to General.

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APPLICANT CONTENDS THAT:

After nearly 16 years of honorable service, including combat duty in South Vietnam, and after receiving two earlier honorable discharges and reenlisting twice, he became involved in an isolated incident that resulted in his court-martial.  He feels this was inequitable and it has now prevented him from receiving VA health care and treatment for conditions he believes are service-connected to his duties in a combat theater.

In support of the appeal, applicant submits a personal statement, copies of correspondence between himself and a Department of Veterans Affairs officer, a separation document issued to him in 1976, and a statement by a local Veterans Employment Representative.  Applicant's complete submission, with attachments, is at Exhibit A.

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STATEMENT OF FACTS:

The applicant contracted his initial enlistment in the Regular Air Force on 12 November 1968.  He continued to serve on active duty until the separation that is the subject of this appeal by reenlisting on 20 March 1972, 19 March 1976 and 19 March 1980.  His first three periods of service ended in honorable discharges for the purpose of reenlistment.  Prior to the events under review, he had been progressively promoted to the grade of technical sergeant, effective and with a date of rank of 1 December 1979.  Subsequent to his promotion to that grade, he received 4 Airman Performance Reports (APRs) which contained overall evaluations of “9” and “firewalled” evaluations of performance.

On 1 September 1983, the applicant was convicted by a special court-martial for violation of the Uniform Code of Military Justice, Article 134 in two specifications.  The applicant had pled not guilty and was found guilty of wrongful use of marijuana on diverse occasions from on or about 30 June 1981 to on or about 1 June 1983 and wrongful possession of some amount of marijuana from on or about 30 June 1981 to 1 June 1983.  He was sentenced to be discharged with a BCD, to be confined for 2 months, to forfeit $200 per month for 2 months and to be reduced in grade to airman first class (A1C).  The sentence was approved by the officer exercising General Court-Martial authority and affirmed and directed into execution following appellate review.

In the meantime, on 19 September 1983, the applicant underwent a substance abuse evaluation at a military medical facility.  The interviewer indicated that the applicant had indicated there was only circumstantial evidence supporting his conviction.  He denied all use and possession.  Any diagnosis was deferred and it appears medical personnel determined the applicant should not be entered into a rehabilitation program.

On 20 December 1984, the applicant was discharged in the grade of A1C (E-3) with a bad conduct discharge under the provisions of AFR 39-10 (Misconduct - Drug Abuse).  He was credited with 4 years, 7 months and 12 days of active duty service for his last period of service.  He was credited with 11 years, 4 months and 7 days of prior active duty service.  Time lost was 51 days due to confinement.

Pursuant to the Board’s request, the Federal Bureau of Investigation, Clarksburg, West Virginia, provided an investigative report, which is attached at Exhibit C.

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AIR FORCE EVALUATION:

AFPC/DPPRS states that they believe the discharge was consistent with the procedural and substantive requirements of the discharge regulation at that time.  They believe the discharge was within the discretion of the discharge authority.  Therefore, they recommend denial of applicant’s request.

A complete copy of the evaluation is attached at Exhibit D.

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APPLICANT'S REVIEW OF AIR FORCE EVALUATION:

The applicant reviewed the Air Force evaluation and states that he had three previous enlistments that resulted in honorable discharges (1968-1972, 1972-1976, 1976-1980) not two as previously stated on the advisory opinion.

He realizes the verdict stands and no precedent can be established now on these matters.  He asks that these documents be reviewed before considering whether or not clemency on sentence is in order.

The assignment of errors and brief on his behalf fairly sums up some of the points he wishes would be considered.  The three negative urinalysis and negative search are the other officially documented points he wishes to convey.  Also note, this search was predicated on his use and possession of marijuana and the theft of government property.  He asks, if this search was authorized prior to the search, why stolen government property?  He states, as head medic, the hospital commander cleared him to have the First Aid Kit at his residence; it was not stolen.  This shows the authorization to search was completed after the search as there is no further mention of stolen property prior to or after the search.  He states, again, this shows the extent that the government went to secure his conviction.  The Board should also note he never tested positive for marijuana nor was any marijuana taken from him.

He states that there are several other points he would like to bring up which he feels is the main reason for this whole situation going the way it went.

The Prosecutor, Captain   was vindictive towards him on a personal level.  He believes due to two prior conflicts he had with him.

He also requests review of his APRs covering the time period of his alleged misconduct.

A copy of applicant’s response, with attachments, is attached at Exhibit F.

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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 reviewing the evidence of record, we are not persuaded that the applicant’s records are in error or that he has been the victim of an injustice.  The applicant’s discharge had its basis in his trial and conviction by a military court.  We have noted the applicant’s arguments concerning the evidence and events related to these events and are constrained to note that this Board is not empowered to set-aside or reverse the findings of guilty by a court-martial.  In other words, while the applicant may believe the evidence is questionable, it is a fact that the military court found it sufficient to reach the findings they did in his case and that the findings and sentence were approved and affirmed upon review.  In cases of this nature, according to Title 10, United States Code, Section 1552(f), actions by this Board are limited to corrections to the record to reflect actions taken by the reviewing officials and action on the sentence of the court-martial for the purpose of clemency.  There is nothing in the evidence provided, other than the applicant’s unsubstantiated allegations, which would lead us to believe that a change to the actions of any of the reviewing officials is warranted.  Furthermore, he has not provided any evidence of a successful post-service adjustment which could lead us to conclude that clemency is warranted on that basis.  In view of the above, the applicant’s request 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 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 19 March 2003, under the provisions of AFI 36-2603:

			Panel Chair
			Member
			Member

The following documentary evidence was considered:

	Exhibit A.  DD Form 149, dated 25 Oct 02, w/atchs.
	Exhibit B.  Applicant's Master Personnel Records.
	Exhibit C.  FBI Report.
	Exhibit D.  Letter, AFPC/DPPRS, dated 13 Nov 02.
	Exhibit E.  Letter, AFBCMR, dated 22 Nov 02.
	Exhibit F.  Applicant’s Response, dated 17 Dec 02, w/atchs.