RECORD OF PROCEEDINGS
AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS

IN THE MATTER OF:	DOCKET NUMBER:  BC-2003-00765
					INDEX CODE:  110.00

	APPLICANT		COUNSEL: None

	SSN				HEARING DESIRED: No

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APPLICANT REQUESTS THAT:

His bad conduct discharge (BCD) be upgraded to an honorable discharge.
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APPLICANT CONTENDS THAT:

He served in the military for nine and one-half years.  He was given a general court-martial for one bad urinalysis.  He had two prior honorable discharges.  He worked for the Inspector General and his work was exemplary.  He is currently homeless and seeking assistance from Veterans Affairs (VA).

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

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STATEMENT OF FACTS:

Applicant enlisted in the Regular Air Force on 25 October 1979 for a period of four (4) years as an airman basic.  On 1 June 1983, the applicant reenlisted in the Air Force for a period of four years.

The applicant received two Letters of Reprimand for failure to go.

The applicant’s NCO status was vacated due to substandard duty performance on 22 May 1986.

On 10 March 1987, the applicant was denied award of the Air Force Good Conduct Medal (AFGCM) based on a review of his Personnel Record and Unfavorable  Information  File (UIF), for the period 16 December 1986 to 15 April 1987.

The applicant met all the eligible criteria for appointment to NCO status.  His NCO status was reinstated on 5 August 1987.

General Court-Martial Order #12, dated 21 November 1988, indicates that the applicant was tried and found guilty of wrongful use of cocaine and marijuana.  He was sentenced to a bad conduct discharge, confinement for 13 months, forfeiture of $250.00 per month for 13 months, and reduction in grade to airman basic.  The sentence was adjudged on 31 August 1988.  The convening authority approved the sentence and except for the part of the sentence extending to a BCD, the sentence was to be executed.  General Court-Martial Order #368, dated 25 September 1989, affirmed the sentence and directed the bad conduct discharge be executed.

Applicant’s performance profile is listed below.

			PERIOD ENDING		OVERALL EVALUATION

			     24 Oct 80			7
			     24 Oct 81			7
			      2 Aug 82			8
			      5 Jun 83			8
			      1 Jun 84			8
			      1 Jun 85			8
			      1 Jun 86			6
			      1 Jun 87			9
			      1 Jun 88			9

The applicant was discharged with service characterized as BCD on 20 October 1989.  He served a total of nine years, three months and one  day of active  duty service.  He had lost time between 31 August 1988 through 25 May 1989.

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AIR FORCE EVALUATION:

According to AFLSA/JAJM, the applicant was charged with a single use of marijuana and multiple uses of cocaine, in violation of Article 112a, Uniformed Code of Military Justice (UMCJ).  The applicant admitted to using marijuana and cocaine at the home of another military member on 2 June 1988.  The applicant agreed to a urinalysis, which established the presence of both drugs in the applicant’s system.  The applicant pled guilty to using marijuana and cocaine on the one occasion and pled not guilty to any other uses of marijuana and cocaine.  

On 7 March 1989, the Air Force Court of Military Review (now called the Air Force Court of Criminal Appeals) affirmed the findings of guilty and sentence.  On 16 August 1989, the applicant’s petition for review by the U.S. Court of Military 
Appeals (now called the U.S. Court of Appeals for the Armed Forces) was denied.  

AFLSA/JAJM states an application must be filed within 3 years after the error or injustice was discovered, or, with due diligence, should have been discovered.  An application may be denied on the basis of being untimely, however, an untimely filing may be excused in the interest of justice.  The applicant’s request comes 13 years after his discharge.  He has not identified an error on injustice in the processing of his discharge.

Under 10 USC Section 1552(f), which amended the basic correction board legislation, the AFBCMR’s ability to correct records related to courts-martial is limited.  Specifically, Section 1552(f)(1) permits the correction of a record to reflect actions taken by reviewing authorities under the Uniform Code of Military Justice (UCMJ).  Additionally, Section 1552(f)(2) permits the correction of records related to action on the sentence of courts-martial for the purpose of clemency.  Apart from these two limited exceptions, the effect of Section 1552(f) is that AFBCMR is without authority to reverse, set aside, or otherwise expunge a court-martial conviction that occurred on or after 5 May 1950 (the effective date of the UMCJ).

They further state that there is no legal basis for upgrading the applicant’s discharge.  His sentence was within the prescribed limits and was a matter within the discretion of the court-martial and could have been mitigated by the convening authority or during the course of the appellate review.  The applicant was afforded all rights guaranteed by statute and regulation.  He has provided no compelling basis based on the circumstances of his case that would warrant a change in his discharge.

AFLSA/JAJM further states that while clemency is an option, there is no reason for the Board to exercise clemency in the applicant’s case.  The applicant did not serve honorably during this enlistment, even before his drug use.  Two years before his court-martial, his NCO status was vacated.  He received two Letters of Reprimand and needed close supervision.  The military judge, convening authority and the appellate court believed a BCD, appropriately characterized the applicant’s military service and crimes.  The applicant has not presented sufficient evidence to warrant upgrading his discharge and therefore they recommend the requested relief be denied.

A complete copy of the evaluation is attached 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 3 June 2003, respectively, for review and response.  As of this date, no response has been received by this office.  

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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 of timely file.

3.	Insufficient relevant evidence has been presented to demonstrate the existence of error or injustice.  After thoroughly reviewing the evidence or record, we find no evidence to show that the applicant’s discharge as a result of his conviction by court-martial was erroneous or unjust.  The applicant’s contentions are duly noted, however, he has not submitted persuasive evidence to support these contentions.  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 either an error or an 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 AFBCMR Docket Number BC-2003-00765 in Executive Session on 22 July 2003, under the provisions of AFI 36‑2603:

				Panel Chair
				Member
				Member

The following documentary evidence was considered:

   Exhibit A.  DD Form 149, dated 12 Mar 03, w/atchs.
   Exhibit B.  Master Personnel Records.
   Exhibit C.  Letter, AFLSA/JAJM, dated 19 May 03.
   Exhibit D.  Letter, SAF/MRBR, dated 3 Jun 03.

					
							Panel Chair