RECORD OF PROCEEDINGS
AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS

IN THE MATTER OF:	DOCKET NUMBER: BC-2003-01414

		COUNSEL:  NONE

		HEARING DESIRED:  NO

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APPLICANT REQUESTS THAT:

His discharge be upgraded to honorable.

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THE APPLICANT CONTENDS THAT:

In essence, that his discharge should be upgraded based on clemency.

The applicant states that while the type of discharge was appropriate at the time, it was based on isolated incidents and not indicative of his character of behavior.  Since his discharge, he has not engaged in that behavior, has been employed by a major telecommunications company, and graduated from college at the top of his class, with a double major.  He requests his discharge be upgraded so that he may enter the Air Force Reserve.

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

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STATEMENT OF FACTS:

The applicant enlisted in the Regular Air Force on 9 November 1978 for a period of four years.

On 24 October 1979, 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 111 (i.e., drunken or reckless driving).  Specifically, for operating a vehicle while drunk on 21 October 1979.   After consulting military legal counsel, he waived his right to a trial by court-martial and accepted the nonjudicial punishment.  After considering the applicant’s oral submission, on 9 November 1979, the commander determined that he did commit the alleged offense and imposed nonjudicial punishment consisting of reduction to the grade of airman basic (suspended until 19 April 1980) and forfeiture of $50.00.  He did not appeal the punishment. 

On 18 March 1980, the commander again notified him of his intent to impose nonjudicial punishment under Article 15 of the UCMJ for violating Article 92 (i.e., failure to obey an order or regulation).  Specifically, for failing to obey the lawful order of his superior commissioned officer to not drive a vehicle on Luke AFB from 19 November 1979 to 18 November 1980, which he did on 4 March 1980.  He acknowledged his right to consult with military legal counsel and chose not to avail himself to counsel.  He waived his right to a trial by court-martial and accepted the nonjudicial punishment.  After considering his oral submission, on 19 March 1980, the commander determined that he did commit the alleged offense and imposed nonjudicial punishment consisting of forfeiture of $50.00 per month for two months and 14 days extra duty. He appealed the punishment; however, his appeal was denied.

On 14 March 1980, the commander notified him that based on his misconduct on 4 March 1980, the suspension of his reduction in grade was vacated, and the reduction duly executed.

He was tried by a special court-martial and pled guilty to the charge of violating Article 134 of the UCMJ.  Specifically, for wrongfully possessing one gram of marijuana on 23 March 1980.  He was found guilty of the charge and sentenced to a bad conduct discharge (BCD), three months confinement at hard labor, and forfeiture of $100.00 per month for three months.  The sentence was adjudged on 3 April 1980

The DD Form 214, Certificate of Release or Discharge from Active Duty, issued in conjunction with his 2 December 1980 discharge indicates that he received an Other Than Honorable Conditions (OTHC) discharge.  However, based on the final Special Court-Martial Order #33, dated 2 December 1980, and the original sentence, his DD Form 214 should reflect that he received a BCD.  He completed 1 year, 10 months, and 11 days of active service.

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AIR FORCE EVALUATION:

AFPC/DPPRS recommends the application be denied and states, in part, that the applicant did not submit any new evidence or identify any errors of injustices.  Furthermore, he provided no other facts warranting an upgrade of his discharge.  AFPC/DPPRS states that the applicant’s DD Form 214, Certificate of Release or Discharge from Active Duty, indicates that he received a UOTHC discharge; however, based on the final Special Court-Martial Order #33, dated 2 December 1980, and the original sentence, his DD Form 214 should reflect that he received a BCD.  A discharge of OTHC is less severe than a BCD and they defer to the Board to determine if this should be changed in accordance with documentation contained in his records.

The AFPC/DPPRS evaluation is at Exhibit C.

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APPLICANT’S REVIEW OF AIR FORCE EVALUATION:

A complete copy of the Air Force evaluation was forwarded to the applicant on 30 May 2003 for review and response within 30 days.  However, 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 to warrant upgrading the applicant’s discharge.  After thoroughly reviewing the evidence of record and noting the applicant’s complete submission, we are not persuaded that a change to his characterization of service is warranted.  The evidence of record indicates that the applicant was convicted by a special court-martial of wrongfully possessing one gram of marijuana on 23 March 1980.  No evidence has been presented which would lead us to believe that the applicant’s service characterization was improper.  Therefore, in the absence of sufficient evidence to the contrary, we adopt the Air Force rationale and conclude that no basis exists to recommend granting the relief sought in this application.

4.  As indicated above, we found no basis warranting an upgrade of the applicant’s discharge.  With respect to the incorrect characterization of service reflected of the applicant’s DD Form 214, his record will be administratively corrected by the appropriate Air Force office of primary responsibility to properly reflect that he was discharged with a Bad Conduct discharge.

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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-2003-01414 in Executive Session on 10 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 6 May 03, w/atch.
    Exhibit B.  Applicant's Master Personnel Records.
    Exhibit C.  Letter, AFPC/DPPRS, dated 20 May 03.
    Exhibit D.  Letter, SAF/MRBR, dated 30 May 03.

                                   
                                   Panel Chair