RECORD OF PROCEEDINGS
         AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS

IN THE MATTER OF:	DOCKET NUMBER:  BC-2002-03787
		INDEX CODE:  110.00

		COUNSEL:  NONE

		HEARING DESIRED:  NO

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APPLICANT REQUESTS THAT:

His bad conduct discharge be upgraded to a general discharge.
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APPLICANT CONTENDS THAT:

When he graduates from college, he does not want his discharge to hinder his chance for future employment with a state or federal agency.  It has been 15 years since his discharge.  He has not been in any trouble and has been gainfully employed.  He is married, a homeowner and a member of the Volunteer Fire Department.

No supporting documents were submitted.  The applicant’s complete submission is at Exhibit A.
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STATEMENT OF FACTS:

Applicant contracted his enlistment in the Regular Air Force on 19 Mar 84 for a period of 4 years.  He was progressively promoted to the grade of airman first class (E-3).  Pursuant to a General Court-Martial Order, he was reduced to the grade of airman basic (E-1).

On 26 Nov 84, applicant was notified of his commander's intent to impose nonjudicial punishment (Article 15) for stealing approximately $180.00 from another airman, in violation of Article 121, UCMJ.  The applicant consulted a lawyer, waived his right to demand trial by court-martial and accepted nonjudicial punishment.  After considering all matters presented to him, the commander found that the applicant did commit one or more of the offenses alleged.  The commander imposed punishment of forfeiture of $50.00 per month for one month and restriction to base for 14 days.  Applicant did not appeal the punishment.

On 1 May 86, applicant was tried before a general court-martial at Homestead AFB.  He was charged with using and distributing cocaine and marijuana, in violation of Article 134, UCMJ, and conspiring with another airman to possess cocaine, in violation of Article 81, UCMJ.  The applicant pled guilty to all charges.  He was found guilty and sentenced to a bad conduct discharge, confinement for 32 months, reduction in grade to airman basic (E‑1) and forfeiture of all pay and allowances.  Subsequent to reducing the confinement to 30 months, the convening authority approved the sentence on 5 Jun 86.

The applicant received a bad conduct discharge on 7 Apr 87 under the provisions of General Court-Martial Order (GCMO) No. 135, dated 3 Mar 87, (conviction by court-martial (other than desertion)).  He had completed a total of 2 years, 1 month and 12 days and was serving in the grade of airman basic (E-1) at the time of discharge.  The applicant’s lost time was during the period 1 May 86 through 7 Apr 87.
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AIR FORCE EVALUATION:

AFLSA/JAJM recommends the application be denied.  JAJM indicated that the applicant did not appeal his court-martial conviction and sentence to the U.S. Court of Military Appeals.  JAJM states that there is no legal basis for upgrading the applicant’s discharge.  The appropriateness of the applicant’s sentence, within the prescribed limits, is a matter within the discretion of the court-martial and may be mitigated by the convening authority or within the course of the appellate review process.  The applicant had the assistance of counsel in presenting extenuating and mitigating matters in their most favorable light to the court and the convening authority.  These matters were considered in review of the sentence.  The applicant was thus afforded all rights granted by statute and regulation.  In this case, the convening authority reduced the applicant’s sentence to confinement.  The applicant provides no compelling rationale to mitigate the approved bad conduct discharge given the circumstances of the case.  He used and distributed both marijuana and cocaine.  For those offenses, the applicant was tried by the appropriate forum -- a general court-martial.  The maximum punishment authorized for the offenses for which the applicant was convicted was a dishonorable discharge, confinement for 42 years, forfeiture of all pay and allowances and reduction to the lowest enlisted grade.  While clemency is an option, JAJM states that there is no reason for the Board to exercise clemency in this case.  The applicant has identified no error or injustice related to the sentence.  His alleged later good conduct does not justify criminal behavior during his enlistment.  The applicant presents insufficient evidence to warrant upgrading the bad conduct discharge and does not demonstrate an equitable basis for relief.  In addition, his request, made 15 years after his conviction and discharge, is untimely.  The AFLSA/JAJM evaluation is at Exhibit C.

HQ AFPC/DPPRS recommends the application be denied.  Based upon the documentation in the file, DPPRS believes the discharge was consistent with the procedural and substantive requirements of the discharge regulation.  DPPRS states that the applicant did not submit any new evidence or identify any errors or injustices that occurred in the discharge processing.  He provided no other facts warranting an upgrade of the discharge.  The HQ AFPC/DPPRS evaluation is at Exhibit D.
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APPLICANT'S REVIEW OF AIR FORCE EVALUATIONS:

Copies of the Air Force evaluations were forwarded to applicant on 7 Mar 03 for review and response.  As of this date, no response has been received by this office (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 error or injustice.  We thoroughly reviewed applicant’s record and the circumstances surrounding the discharge in 1987.  In this respect, we note that the applicant’s discharge had its basis in his trial and conviction by a duly constituted military court.  We believe it is significant that a substantially harsher punishment was authorized under the UCMJ for the offenses of which the applicant stood convicted.  Considering the extremely serious nature of his infractions against the good order and discipline of the service, we agree with the opinion and recommendation of the Military Justice Division and adopt the rationale expressed as the basis for our decision that the applicant has failed to sustain his burden that he has suffered either an error or an injustice.  While the applicant indicates he has made a successful post-service adjustment, he provides no documents to substantiate that he has maintained the standards of good citizenship in the community since his discharge.  Therefore, we are not inclined to exercise clemency in the form of an upgrade to his discharge.  In view of the foregoing and absent evidence to the contrary, we find no compelling basis to recommend granting the relief sought in this application.
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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 10 Apr 03, under the provisions of AFI 36‑2603:

The following documentary evidence was considered in connection with AFBCMR Docket Number BC-2002-03787.

   Exhibit A.  DD Form 149, dated 22 Nov 02.
   Exhibit B.  Applicant's Master Personnel Records.
   Exhibit C.  Letter, HQ AFLSA/JAJM, dated 10 Feb 03.
   Exhibit D.  Letter, HQ AFPC/DPPRS, dated 25 Feb 02.
   Exhibit E.  Letter, SAF/MRBR, dated 7 Mar 03.