RECORD OF PROCEEDINGS
         AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS

IN THE MATTER OF:	DOCKET NUMBER:  BC-2003-00167
		INDEX CODE:  106.00, 110.02
		COUNSEL:  

		HEARING DESIRED:  NO

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APPLICANT REQUESTS THAT:

His bad conduct discharge (BCD) be upgraded to general (under honorable conditions).

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APPLICANT CONTENDS THAT:

He makes no contentions.

Applicant’s complete submission is at Exhibit A.

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STATEMENT OF FACTS:

The applicant entered into the Air Force on 25 February 1970 and was progressively promoted to the grade of technical sergeant.

He was tried at a general court-martial on 2-3 March 1988.  He was charged with the use of cocaine, in violation of Article 112a, UCMJ.  The applicant was found guilty in a trial before members.  On 3 March 1988, the court sentenced him to a BCD, confinement for one year, forfeitures of $200.00 per month for one year, and reduction to the grade of airman basic.  On 25 May 1988, the convening authority approved the sentence.

His case was then reviewed by the United States Air Force Court of Military Review, which is now called the Air Force Court of Criminal Appeals.  On 28 July 1988, the Air Force Court of Military Review affirmed the findings of guilty and the sentence as approved by the convening authority.  The applicant was discharged with a BCD on 31 January 1989.  The applicant’s DD Form 214 is dated 28 February 1989 and reflects a BCD.  He served 18 years and 3 months on active duty.

Pursuant to the Board’s request, the Federal Bureau of Investigation, Clarksburg, WV, provided a copy of an Investigation Report pertaining to the applicant, which is attached at Exhibit C.

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AIR FORCE EVALUATION:

AFLSA/JAJM recommends denial.  The applicant presents no basis for upgrading his 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 to the court, and the convening authority.  The applicant provides no compelling rationale to mitigate the approved punitive discharge given the circumstances to the case.

The applicant used cocaine despite knowing it is illegal.  For that offense, the applicant was tried by the appropriate forum-a general court-martial.  The maximum punishment authorized for the offense for which the applicant was convicted was a dishonorable discharge, confinement for five years, forfeiture of all pay and allowance, and reduction to the lowest enlisted grade.  The sentence was well within the legal limits and was appropriate punishment for the offense committed.

While clemency is an option, there is no reason for the Board to exercise clemency in this case.  It is important to note that clemency was granted on 31 October 1988 as a result of the convening authority’s action remitting any confinement remaining after 1 November 1988.  

The AFLSA/JAJM evaluation is at Exhibit D.

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APPLICANT'S REVIEW OF AIR FORCE EVALUATION:

A copy of the Air Force evaluation was forwarded to the applicant on 28 March 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 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 an error or injustice warranting an upgrade of his discharge.  After careful consideration of the available evidence, we found no indication that the actions taken to effect his discharge were improper or contrary to the provisions of the governing regulations in effect at the time, or that the actions taken against the applicant were based on factors other than his own misconduct.  Therefore, we agree with the opinion and recommendation of the Air Force office of primary responsibility and adopt their rationale as the basis for our conclusion that the applicant has not been the victim of an error or injustice.  Therefore, in the absence of 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 Docket Number BC-2003-00167 in Executive Session on 1 July 2003, under the provisions of AFI 36-2603:

 
The following documentary evidence was considered:

	Exhibit A.	DD Form 149, dated 13 Jan 03.
	Exhibit B.	Applicant's Master Personnel Records.
	Exhibit C.	FBI Report.
	Exhibit D.	Letter, AFLSA/JAJM, dated 5 Mar 03.
	Exhibit E.	Letter, SAF/MRBR, dated 28 Mar 03.