RECORD OF PROCEEDINGS
AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS

IN THE MATTER OF:	DOCKET NUMBERS:  BC-2003-02123
		INDEX CODE 106.00
	 	COUNSEL:  None

	 	HEARING DESIRED:  No

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APPLICANT REQUESTS THAT:

His 1978 bad conduct discharge (BCD) be upgraded to honorable.

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APPLICANT CONTENDS THAT:

The applicant provides no contentions other than he wants copies of his records and his discharge upgraded so he can apply for Social Security/medical assistance.

The 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 18 Nov 74 and was promoted to the grade of airman first class with a date of rank of 10 Dec 74. 

On 8 Oct 75, he was tried at a general court-martial at Lackland AFB, TX, for several specifications of wrongful sale to other airmen and possession, both on and off-base, of a dangerous drug, phentermine (a controlled substance related to the amphetamine class of drugs used to treat obesity and commonly known as “anorectics” or “anorexigenics,” having possible adverse reactions in the cardiovascular, central nervous and gastrointestinal systems) during the months of Mar-Apr 75. Further, the applicant was charged with selling marijuana at Lackland AFB around 16 Jul 75 and being absent without leave (AWOL) from his unit during the period 4-18 Aug 75. The applicant pled guilty and was found guilty of all specifications and charges. His sentence was discharge from the service with a BCD, confinement to hard labor for 22 months, forfeiture of pay/allowances, and reduction to the lowest enlisted grade. The sentence was adjudged on 8 Oct 75.

A 15 Nov 74 Duty Status Change (AF Form 2098) reported that on 17 Oct 74, the applicant’s status changed from present for duty to confinement in the Bexar County Jail, San Antonio, TX, because he was charged with delivery of LSD. He was returned to the custody of the squadron first sergeant on 5 Nov 74 pending trial.

On 10 Nov 75, pursuant to a pre-trial agreement, the convening authority approved only so much of the sentence as provided for a BCD, confinement for 16 months, forfeiture of $255 pay per month for 18 months, and reduction to airman basic.  

Following the appellate process, two specifications were dismissed, the remaining offenses were affirmed, and the applicant’s final modified sentence provided for a BCD, eight months of confinement, forfeiture of $240 pay per month for ten months, and reduction to airman basic. 

The applicant was separated on 8 Jun 78 with 3 years, 6 months and 21 days of active service and 343 days of lost time. The applicant’s DD Form 214 indicates an under-other-than-honorable-conditions (UOTHC) characterization of service and that he was issued a DD Form 259AF certificate. According to AFM 39-12(C7), 25 Mar 74, if the discharge is given by special or general court-martial and the characterization is UOTHC, then the type of certificate for a bad conduct discharge is a DD Form 259AF.

On 11 Aug 03, pursuant to the applicant’s request, HQ AFPC/DPSAMP forwarded him copies of his medical, discharge and courts-martial records. He was also advised where to obtain his pay records.

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AIR FORCE EVALUATION:

AFLSA/JAJM asserts there is no legal basis for upgrading the applicant’s discharge and, while clemency is an option, there is no reason for the Board to exercise clemency in this case. He admitted his guilt and his bad conduct was clearly prejudicial to good order and discipline. To the further discredit of his military service, the applicant was independently convicted by civilian authorities of another drug offense (delivery of LSD) while his court-martial appeal was pending. He was granted a reduction in his adjudged sentence by the convening authority and a further reduction by the Court of Military Review. The applicant was afforded all rights granted by statute and regulation and has already received a substantial reduction in his sentence, which was well within the legal limits and appropriate for the offenses committed. The applicant did not serve his enlistment honorably and it would be unjust to change his characterization to one that thousands of airmen, who did serve honorably, also carry. Denial is recommended.

A complete copy of the 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 10 Oct 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 error or injustice. After a thorough review of the evidence of record and the applicant’s submission, we are not persuaded that his BCD should be upgraded. The applicant has not shown that his punitive discharge was unsupported by his own serious misconduct or that he was denied any rights to which he was entitled. Further, he has not submitted any evidence demonstrating he became a productive and respectable member of society after his discharge. The applicant received a substantial reduction in his sentence through the appellate process and we find no grounds for bestowing any additional relief on the basis of error, injustice or clemency. We therefore agree with the rationale and recommendations of the Air Force that the applicant has not sustained his burden of having suffered either an error or an injustice. In view of the above and absent persuasive evidence to the contrary, we conclude the applicant’s request should be denied.

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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 20 November 2003 under the provisions of AFI 36-2603:

The following documentary evidence relating to AFBCMR Docket Number BC-2003-02123 was considered:

   Exhibit A.  DD Form 149, dated 20 Jul 03, w/atch.
   Exhibit B.  Applicant's Master Personnel Records.
   Exhibit C.  Letter, AFLSA/JAJM, dated 26 Sep 03.
   Exhibit D.  Letter, SAF/MRBR, dated 10 Oct 03.