RECORD OF PROCEEDINGS
AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS

IN THE MATTER OF:	DOCKET NUMBER: BC-2003-00047

	 	COUNSEL:  NONE

	 	HEARING DESIRED:  NO

_________________________________________________________________

APPLICANT REQUESTS THAT:

His discharge be upgraded to honorable.

_________________________________________________________________

THE APPLICANT CONTENDS THAT:

The reason for his discharge was definitely his own fault and unacceptable behavior that is not tolerated in the armed forces.  However, he was illegally set-up to buy hashish by an undercover narcotics agent of the Drug Suppression Team United States Air Force and Army Task Force, and was arrested by Air Force Office of Special Investigation (AFOSI) agents.

The applicant states that there was no excuse for what he did, and he has vowed to never get involved in illegal drugs, or illegal activities again.  However, he feels that he and his family have been punished enough, and enough time has passed to correct what he has done wrong.  Since his discharge, he has worked steadily for 11 years without getting into any trouble with the authorities, except speeding tickets.  He is a productive citizen, a good and loving father, and husband.  Having his discharge upgraded is very important because the one and only Federal offense that he has ever committed has tarnished his military record forever.  He would also like his discharge upgraded so that he can apply for a security position at a nuclear facility.

In support of the appeal, the applicant submits a statement with 42 signatures of family members, friends, or employers.

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

_________________________________________________________________

STATEMENT OF FACTS:

The applicant enlisted in the Regular Air Force on 30 March 1987 for a period of four years.  He was progressively promoted to the grade of sergeant on 1 July 1986.

On 22 August 1990, the commander notified the applicant of his intent to impose nonjudicial punishment under Article 15 of the Uniform Code of Military Justice (UCMJ) for violating Article 112a.  Specifically, for wrongfully using hashish between 1 December 1989 to 31 July 1990 at Kaiserslautern, Federal Republic of Germany, and wrongfully possessing 10 grams of hashish on 20 July 1990.  After consulting legal counsel, the applicant waived his right to a trial by court-martial and accepted the nonjudicial punishment.  The applicant did not submit oral or written submissions to the commander for consideration.  On 24 August 1990, the commander determined that he did commit the alleged offense and imposed nonjudicial punishment consisting of reduction to the grade of airman basic, with new date of rank (DOR) of 24 August 1990, forfeiture of $200.00 pay per month for 2 months, 45 days of extra duty, and 45 days restriction to Vogelweh/Kapaun AS complex and Ramstein AB.  He did not appeal the punishment.

His Noncommissioned Officer (NCO) status was vacated on 22 August 1990 for use and possession of illegal drugs.

In a letter, dated 19 October 1990, the commander notified the applicant of his intent to initiate administrative discharge action against him for drug abuse.  Specifically, for wrongfully using hashish and possessing 10 grams of hashish for which the applicant received an Article 15.  After consulting with military counsel, the applicant submitted a conditional waiver of his rights to a hearing before an administrative discharge board (ADB) contingent upon receipt of no less than a general discharge, and submitted statements in his own behalf. On 9 November 1990, he acknowledged that his and his spouse’s sworn statements of 20 July 1990 would be attached to his AF Form 3070, Record of Nonjudicial Punishment Proceedings, dated 22 August 1990, and would be viewed by the discharge authority.

The conditional waiver was rejected on 29 November 1990, and on that date, the applicant submitted an unconditional waiver of his rights to an ADB.

On 10 January 1991, the discharge authority approved the recommended discharge without probation and rehabilitation.

He was discharged on 18 January 1991, under the provisions of AFR 39-10 (Misconduct - Drug Abuse), with an under other than honorable conditions (UOTHC) discharge.  He completed 7 years, 9 months, and 18 days of active service.

On 31 July 1995, the Air Force Discharge Review Board (AFDRB) considered and denied applicant’s request that his discharge be upgraded.

Pursuant to the Board's request, the Federal Bureau of Investigation (FBI), Clarksburg, WV, indicated that on the basis of the data furnished, they were unable to locate an arrest record (Exhibit E).

_________________________________________________________________

AIR FORCE EVALUATION:

AFPC/DPPRS recommends the application be denied and states, in part, that the discharge was consistent with procedural and substantive requirements of the discharge regulation.  In addition, the discharge was within the discretion of the discharge authority.  The applicant has not submitted any new evidence or identified any errors or injustices that occurred in the discharge processing.

The AFPC/DPPRS evaluation is at Exhibit C.

_________________________________________________________________

APPLICANT’S REVIEW OF AIR FORCE EVALUATION:

A complete copy of the Air Force evaluation was forwarded to the applicant on 31 January 2003 for review and response within 30 days.  However, as of this date, this office has received no response.

_________________________________________________________________

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 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 Regulation in effect at the time of his separation and he was afforded all the rights to which entitled.  The applicant has provided no evidence to indicate 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 events that precipitated the discharge, and available evidence related to his post-service activities and accomplishments.  On balance, we do not believe that clemency is warranted.

_________________________________________________________________

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.

_________________________________________________________________

The following members of the Board considered Docket Number BC-2003-00047 in Executive Session on 21 August 2003, under the provisions of AFI 36-2603:

The following documentary evidence was considered:

    Exhibit A.  DD Form 149, dated 30 Dec 02, w/atchs.
    Exhibit B.  Applicant's Master Personnel Records.
    Exhibit C.  Letter, AFPC/DPPRS, dated 22 Jan 03.
    Exhibit D.  Letter, SAF/MRBR, dated 31 Jan 03.
    Exhibit E.  Request for FBI Investigative Report.