RECORD OF PROCEEDINGS
AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS

IN THE MATTER OF:	DOCKET NUMBER:  BC-2003-02967
		
	XXXXXXX	COUNSEL:  NONE

	XXXXXXX	HEARING DESIRED:  YES

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APPLICANT REQUESTS THAT:

His bad conduct discharge (BCD) be upgraded.

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APPLICANT CONTENDS THAT:

Since his discharge over 15 years ago, he has been a productive citizen, has not had any legal problems and has graduated from college.  Currently, he is pursuing a MBA in Human Resource Management.  He would like to teach and cannot with this discharge on his record.  He has repaid his debt to society many times.  

In support of his request, applicant provided a personal statement, a letter from SAF/MRBR, a copy of DD Form 293, a Shaw College transcript, and letters of support from his teachers.

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

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STATEMENT OF FACTS:

Applicant enlisted in the Regular Air Force on 20 November 1986 and was progressively promoted to the grade of technical sergeant.  He was tried by a general court-martial on 10 May 1988 and found guilty of wrongful use of cocaine in violation of Article 112(a), Uniform Code of Military Justice and received a bad conduct discharge.  During the trial and pre-trail stages, a military defense counsel represented him.

On 10 May 1988, the court sentenced the applicant to receive a bad conduct discharge, confinement for four months, forfeiture for $250.00 per month for four months and reduction to the grade of airman basic (E-1).  On 10 January 1989, the convening authority approved the sentence as adjudged.  Because his approved sentence included a bad conduct discharge, the applicant’s convictions were reviewed by the Air Force Court of Criminal Review on 22 September 1988.  The Court of Criminal 

Review reassessed the applicant’s sentence because the trial judge erred in admitting a Letter of Reprimand issued two days before the trial was scheduled to begin.  Having reassessed the sentence, the court approved only that portion providing for a bad conduct discharge, four months confinement and reduction to airman basic.  On 12 December 1988, the United States Court of Martial Appeals declined to grant the applicant’s petition for review. The applicant was discharged on 14 August 1989.

In response to the Board’s request, the Federal Bureau of Investigation (FBI) indicated that on the basis of the information provided, they were unable to locate an arrest record pertaining to the applicant (Exhibit C).

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AIR FORCE EVALUATION:

There is no legal basis for upgrading 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 provides no compelling rationale to mitigate the approved dishonorable discharge given the circumstances of the case.  Finally and of considerable weight is the fact that the record reveals the applicant was using cocaine even after being formally charged.  Hence, any suggestion he was the unfortunate victim of a one-time lapse in judgment is unfounded. 

While clemency is an option, there is no reason for the Board to exercise clemency in this case.  The applicant did not serve honorably.  He was thirty-five years old at the time of his offense and wore the rank of technical sergeant.  His peers and junior enlisted alike expected much of him.  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 crimes.  The applicant has provided no evidence of a clear error or injustice related to the sentence.  

The applicant presents no evidence to warrant upgrading of the discharge.  Nor does he demonstrate an equitable basis for relief.  Yet, he wants his DD Form 214 to reflect the same character of service as those who complete their terms of enlistment and follow orders that separate them from friends and family for extended periods.  

ALSA/JAJM complete evaluation is attached at Exhibit D.

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APPLICANT'S REVIEW OF AIR FORCE EVALUATION:

A copy of the Air Force evaluation was forwarded to applicant on      16 April 2004 for review and comment within 30 days.  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 to timely file.

3. After a thorough review of the evidence of record, we see no evidence to show that the applicant's discharge was erroneous or unjust.  However, we recognize the adverse impact of the discharge the applicant received; and while it may have been appropriate at the time, we believe it would be an injustice for the applicant to continue to suffer its effects.  In consideration of the applicant's current age, his apparent immaturity at the time of his enlistment, and no evidence that he has had any subsequent involvement of a derogatory nature since his separation from the Air Force, we believe that corrective action is appropriate on the basis of clemency.  Accordingly, we recommend that his records be corrected to the extent indicated below.

4.	The applicant's case is adequately documented and it has not been shown that a personal appearance with or without counsel will materially add to our understanding of the issues involved.  Therefore, the request for a hearing is not favorably considered.

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THE BOARD RECOMMENDS THAT:

The pertinent military records of the Department of the Air Force relating to APPLICANT, be corrected to show that at the time of his discharge on 2 August 1989, he was discharged with service characterized as general (under honorable conditions). 

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The following members of the Board considered AFBCMR Docket Number BC-2003-02967 in Executive Session on 3 June 2004, under the provisions of AFI 36-2603:

All members voted to correct the records, as recommended.  The following documentary evidence was considered:

	Exhibit A.	DD Form 149, dated 17 Feb 04, w/atchs.
	Exhibit B.	Applicant's Master Personnel Records.
	Exhibit C.	FBI Report, dated 28 Apr 04.
	Exhibit D.	Letter, AFPC/DPPRS, dated 2 Apr 04.
	Exhibit E.	Letter, SAF/MRBR, dated 9 Apr 04.

                                   

AFBCMR BC-2004-02967

MEMORANDUM FOR THE CHIEF OF STAFF

	Having received and considered the recommendation of the Air Force Board for Correction of Military Records and under the authority of Section 1552, Title 10, United States Code (70A Stat 116), it is directed that:

	The pertinent military records of the Department of the Air Force relating to XXXXXXX, XXXXXXX, be corrected to show that at the time of his discharge on 2 August 1989, he was discharged with service characterized as general (under honorable conditions).