RECORD OF PROCEEDINGS
AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS

IN THE MATTER OF:	DOCKET NUMBER:  BC-2003-03474
		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 (under honorable conditions).

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APPLICANT CONTENDS THAT:

He desires his discharge upgraded and would like to enlist in the XXXXXX Air National Guard.

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 10 September 1997 in the grade of airman basic.

On 21 January 2000, the applicant was tried and found guilty by a General Court Martial for the following reasons:

	Specification 1:  the applicant, did, at or near Tucson, Arizona, on divers occasions, between on or about 1 August 1999 and on or about 31 August 1999 wrongfully use cocaine.

	Specification 2:  the applicant, did, at or near Tucson, Arizona, on divers occasions, between on or about 1 September 1999 and on or about 27 September 1999 wrongfully use cocaine.

	Specification 3:  the applicant did, at or near Tucson, Arizona, on divers occasions, between on or about 1 September 1999 and on or about 27 September 1999 wrongfully use methamphetamine.

	Specification 4:  the applicant did, at or near Tucson, Arizona, between on or about 25 September 1999 and on or about 27 September 1999 wrongfully possess methamphetamine.

	Pleas and Findings:  Guilty to all specifications.

	Sentence:  bad conduct discharge, confinement for five months, and reduction to the grade of E-1, airman basic.

On 21 January 2000, the sentence was adjudged.

Applicant was discharged on 21 April 2001, in the grade of airman basic with a bad conduct discharge (BCD), under the provisions of AFI 36-3208, Court Martial (Drug Related Offense).  He served 3 years, 7 months, and 11 days total active duty service with five months lost time.

The applicant’s performance report reflects a rating of “2” for the time period 10 September 1997 through 11 May 1999.

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AIR FORCE EVALUATION:

AFLSA/JAJM recommended denial.  They indicated that there is no legal basis for changing the applicant’s discharge.  The maximum punishment for the four specifications was a bad conduct discharge, confinement for 20 years, total forfeiture of all pay and allowances, and reduction to E-1.  The sentence given was well within the legal limits and was an appropriate punishment for the offenses committed.  The appropriateness of a 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.  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.  Applicant was afforded all rights granted by statute and regulation.

His record of service prior to his court martial was not unblemished.  His duty performance evaluation prior to the subject incident was satisfactory.  He has provided no evidence of a clear error or injustice related to the sentence.

The evaluation is at Exhibit C.

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APPLICANT'S REVIEW OF AIR FORCE EVALUATION:

On 9 January 2004, a copy of the Air Force evaluation was forwarded to the applicant for review and response 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 timely filed.

3.	Insufficient relevant evidence has been presented to demonstrate the existence of an error or injustice.  After thoroughly reviewing the evidence of record, we find no evidence to show that the applicant’s discharge as a result of his conviction by court-martial was erroneous or unjust.  While the applicant believes his bad conduct discharge should be upgraded, we note the convening authority approved the bad conduct discharge and determined the bad conduct discharge was an appropriate consequence that accurately described the applicant’s military service and his crimes.  In view of the foregoing, we agree with the opinion and recommendation of the Military Justice Division and adopt their rationale expressed as the basis for our decision that the applicant has failed to sustain his burden that he has suffered either an error or an injustice.  Therefore, in the absence of evidence to the contrary, we find no compelling basis to recommend granting the relief sought.

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THE BOARD DETERMINES THAT:

The applicant be notified that the evidence presented did not demonstrate the existence of an 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 11 February 2004, under the provisions of AFI 36-2603:

The following documentary evidence pertaining to AFBCMR Docket Number BC-2003-03474 was considered:

   Exhibit A.  DD Form 149, dated 24 October 2003, w/atchs.
   Exhibit B.  Applicant's Master Personnel Records.
   Exhibit C.  Letter, AFLSA/JAJM, dated 19 December 2003.
   Exhibit D.  Letter, SAF/MRBR, dated 9 January 2004.