RECORD OF PROCEEDINGS
AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS

IN THE MATTER OF:	DOCKET NUMBER:  BC-2003-03281
		
		COUNSEL:  NONE

		HEARING DESIRED: YES 

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APPLICANT REQUESTS THAT:

His bad conduct discharge (BCD) be upgraded so he can reenlist in the National Guard.
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APPLICANT CONTENDS THAT:

He had the honor to serve his country and the Air Force for over 17 ½ years.  He brought to the military an artistic ability that was beneficial to his field and recognized by the highest echelons.  While his artwork was exploited, he nurtured his skill and his pride.  At the same time, he was suffering from a debilitating disease - alcoholism.

After receiving his fourth honorable discharge, he divorced the mother of his child and foolishly married an Air Force officer for all the wrong reasons.  At his time, alcoholism took over his life and he hit bottom.  The Air Force recognized the problem and he believes they gave him a chance to overcome but to no avail.  In his sick mind, he equated his marriage and the military, as one and he wanted to get out.  He looks back on his court martial as the worst day of his life.  

He appeals to the Board to understand that he loved the Air Force and to upgrade his discharge would not only recognize his 16 years of honorable service but would restore his pride.  Since his separation, he has recognized his disease, and with the grace of God, he has maintained complete sobriety for over three years.  He has been very involved with his church, AA and the community.  In retrospect, he knows his conduct would have been to of a stellar career airman if not for the cunning and baffling disease in which he suffered.  

His ultimate goal for this upgrade is to make him eligible to re-enter the National Guard where his talents could be a viable asset serving the country, which he loves. 

In support of his request, applicant provided a personal statement, character references, a copy of his DD Form 214, Certificate of Release or Discharge from Active Duty, a copy of Statement of Service and samples of his artwork.

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

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STATEMENT OF FACTS:

The applicant contracted his initial enlistment in the Regular Air Force on 31 July 1978 and was progressively promoted to the grade of technical sergeant, having assumed that grade effective and with a date of rank of 1 February 1991.

The applicant was tried by a general court-martial at Nellis Air Force Base, Nevada on 8 August 1995.  The applicant was charged with violating Article 112a of the UMCJ by wrongfully using metamphetamine on diverse occasions between on or about 30 April 1995 and on or about 16 May 1995.  In accordance with his pleas, the applicant was found guilty in a trial before a judge alone.  The court sentenced him to receive a bad conduct discharge, six months of confinement, forfeiture of $427.00 pay per month for six months, and reduction to the grade of E-1 (airmen basic).  The convening authority approved the sentence as adjudged on    20 September 1995.  On 14 December 1995, the confinement portion of applicant’s sentence was remitted, effective 19 December 1995.  On 30 January 1996, the Air Force Court of Criminal Appeals affirmed the findings and sentence as approved.  The US Court of Appeals for the Armed Forces denied his petition for review on 12 April 1996.  The applicant was discharge on 9 August 1996.

The following is a resume of the applicant's last 6 Enlisted Performance Reports:

	PERIOD ENDING	PROMOTION RECOMMENDATION

		20 Nov 94		1 (Referral)
		14 Mar 94		5
		30 Aug 93		3
		30 Aug 92		5
		30 Aug 91		4
		30 Aug 90		5

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AIR FORCE EVALUATION:

AFLSA/JAJM recommends denial of the applicant's request and states that the applicant used methamphetamine.  For that offense, the applicant was tried by 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 E-1.  The sentence was well within the legal limits and was an appropriate punishment for the offenses committed.  

While clemency is an option, there is no reason for the Board to exercise clemency in this case.  The applicant’s EPRs reflect that the applicant was quite capable of doing good work and performing at a very high caliber, but that he was unreliable.  He did not maintain his high standard of work/behavior consistently.  Despite his incredible artistic ability and great work on behalf of the Air Force, his illegal use of methamphetamine amounts to bad conduct.  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.  It would be unjust to change that characterization to one that hundreds of thousands of airmen, who have served honorably, also carry.  The facts do indicate the applicant’s problems and decisions in his personal life likely contributed to his drug use.  Nonetheless, his misfortune cannot serve as justification for his bad conduct.  His astonishing talents would be helpful to any organization.  However, his talents do not overshadow his misconduct.  

The military judge and the Air Force Court of Military Review were convinced of the applicant’s guilty beyond a reasonable doubt.  His sentence was appropriate.  The applicant did not serve this enlistment honorably.  His sentence was appropriate.  The applicant has provided no evidence of a clear error or injustice related to the sentence.  The applicant presents no justification to warrant upgrading his bad conduct discharge and does not demonstrated an equitable basis for relief.  In addition, his request, made more than seven years after his conviction, is untimely. 

AFLSA/JAJM complete evaluation is 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 9 January 2004 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 an error or injustice. After reviewing all the evidence presented, we are not persuaded that action to upgrade the applicant's discharge based on clemency is appropriate. The applicant's discharge had its basis in his trial and conviction by a duly constituted military court and upheld by the Air Force Court of Criminal Appeals and the US Court of Appeals for the Armed Forces.  While we find his post-service accomplishments and artistic abilities commendable, and notwithstanding his otherwise good service record, in view of the extreme seriousness of the misconduct he committed (i.e., the use of methamphetamine on diverse occasions), we do not believe a sufficiently lengthy period of time has elapsed since the applicant's discharge to warrant the exercise of clemency at the present time. 

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 issue involved.  Therefore, the request for a hearing is not favorably considered.

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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-2003-03281 in Executive Session on 17 February 2004, under the provisions of AFI 36-2603:

The following documentary evidence was considered:

    Exhibit A.  DD Form 149, undated, w/atchs.
    Exhibit B.  Applicant's Master Personnel Records.
    Exhibit C.  Letter, AFLSA/JAJM, dated 16 Dec 03.
    Exhibit D.  Letter, SAF/MRBR, dated 9 Feb 04.