RECORD OF PROCEEDINGS
         AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS

IN THE MATTER OF:	DOCKET NUMBER:  BC-2003-01446
		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:

The punishment he received in June of 1992 for the ingestion of a controlled substance (LSD) was harsh and unjust.  He served five months of confinement, was demoted to airman basic and was given a Bad Conduct discharge.  Other than this isolated incident, his military career and civilian record were flawless.

The applicant provides two personal statements in support of his appeal.

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 30 March 1989 for a period of four years.  Prior to the events under review, he was progressively promoted to the grade of senior airman (E-4).  He received two Enlisted Performance Reports in which the promotion recommendations were “3s.”

On 28 January 1992, the applicant was tried by a general court-martial at Bergstrom AFB, TX.  He was charged with wrongful use of LSD in violation of Article 112a, UCMJ.  The applicant pled and was found guilty in a trial by judge alone.  The court sentenced him to a bad conduct discharge, confinement for five months, forfeiture of all pay and allowances, and reduction to the grade of airman basic.

On 3 February 1993, the applicant was discharged with a bad conduct discharge.  He served 3 years 5 months and 23 days of active duty service.  Time lost was the period 28 January 1992 through 9 June 1992 due to confinement.

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AIR FORCE EVALUATION:

AFLSA/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.  

The applicant wrongfully used LSD.  He knew it was illegal to do so, as reflected in his responses to the military judge during his guilty plea inquiry.  For that offense, the applicant was tried in 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 allowances, 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.  Consequently, the use of illegal substances may not be addressed in the same manner as in civilian criminal justice systems.

The military judge and the Air Force Court of Military Review were convinced of the applicant’s guilt beyond a reasonable doubt.  His sentence is appropriate.  The applicant did not serve this enlistment honorably.  There are consequences for criminal behavior.  The military judge, convening authority and the appellate court believed a bad conduct discharge was an appropriate consequence that accurately characterized his military service and his crime.  It would be unjust to change that characterization to one that hundreds of thousands of airmen, who have served honorably, also carry.  The applicant has provided no evidence of a clear error or injustice related to the sentence.  The applicant presents no evidence to warrant upgrading the bad conduct discharge, nor has he demonstrated an equitable basis for relief.  Therefore, they recommend denial of applicant’s request.

A complete copy of the evaluation is attached at Exhibit C.

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APPLICANT'S REVIEW OF AIR FORCE EVALUATION:

On 11 July 2003, a copy of the Air Force evaluation was forwarded to the applicant for review and response 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 probable error or injustice.  After reviewing the evidence of record, we are not persuaded that the applicant’s records are in error or that he has been the victim of an injustice.  Therefore, we agree with opinions and recommendations of the Air Force and adopt their rationale as the basis for the conclusion that the applicant has not been the victim of an error or injustice.  We also find insufficient evidence to warrant a recommendation that the discharge be upgraded on the basis of clemency.  We have considered applicant’s overall quality of service, the events which precipitated the discharge, and available evidence related to post-service activities and accomplishments.  On balance, we do not believe that clemency is warranted.  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 this application in Executive Session on 25 February 2004, under the provisions of AFI 36-2603:
The following documentary evidence was considered:

	Exhibit A.	DD Form 149, dated 21 Apr 03, w/atchs.
	Exhibit B.	Applicant's Master Personnel Records.
	Exhibit C.	Letter, AFLSA/JAJM, dated 24 Jun 03.
	Exhibit D.	Letter, SAF/MRBR, dated 11 Jun 03.

					Panel Chair