RECORD OF PROCEEDINGS
         AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS

IN THE MATTER OF:	DOCKET NUMBER:  BC-2003-03720
		INDEX CODE:  110.00

		COUNSEL:  NONE

		HEARING DESIRED:  NO

_________________________________________________________________

APPLICANT REQUESTS THAT:

His dishonorable discharge be upgraded to a general or an honorable discharge.

_________________________________________________________________

APPLICANT CONTENDS THAT:

He was rushed in court with no support or counsel.  He paid for private counsel later.  The case against him was not proven.

Applicant did not submit any documents in support of the appeal.

Applicant's complete submission is attached at Exhibit A.

_________________________________________________________________

STATEMENT OF FACTS:

Applicant enlisted in the Regular Air Force on 17 November 1969 for a period of four years.  Prior to the events under review, he was progressively promoted to the grade of airman first class (E-3).  He received four Enlisted Performance Reports in which the overall evaluations were 7, 5, 5, and 4 based on a rating system of “1” to “9”, “9” being the highest rating.

On 25 February 1970, the commander notified the applicant that he was proposing to impose punishment upon him pursuant to Article 15, Uniform Code of Military Justice (UCMJ).  The reasons for the punishment were:  The applicant did, at Sheppard Air Force Base, Texas, on or about 5 February 1970, behave himself with disrespect toward his superior commissioned officer by displaying a very negative, insubordinate and disrespectful attitude, while being counseled by his superior commissioned officer, in violation of Article 89, UCMJ.  Further investigation disclosed that he did, at Sheppard Air Force Base, on or about 19 February 1970, without authority, failed to go at the time prescribed to his appointed place of duty, to wit:  Building XXX, Sheppard AFB, in violation of Article 86, UCMJ.  The punishment consisted of the applicant being ordered to forfeit $25.00, and to serve 30 days of Correctional Custody.

On 20 March 1970, the commander notified the applicant that he was proposing to impose punishment upon him pursuant to Article 15, Uniform Code of Military Justice (UCMJ).  The reason for the punshment was:  He did, at Sheppard AFB, TX, on or about 9 March 1970, having knowledge of a lawful order issued by SSgt 	   to clean the barracks, an order which it was his duty to obey, fail to obey the same, in violation of Article 92 UCMJ.  The punishment consisted of reduction to the grade of airman basic.

On 9 November 1970, the applicant was evaluated by the Department of Mental Health Services.  As a result of this evaluation it was determined that he did not have a psychiatric disorder requiring action uder the provisions of AFM 35-4, but he did have a character and behavior disorder as described in AFM 39-12, Chapter 2, Para 2-4b, which was best classified as explosive personality, chronic, unchanged.

On 1 December 1970, the commander notified the applicant that he was proposing to impose punishment upon him pursuant to Article 15, Uniform Code of Military Justice (UCMJ).  The reason for the punishment was:  He did, at Sheppard Air Force Base, Texas, on or about 19 and 20 November 1970, at Sheppard AFB, TX, without authority, fail to go at the time prescribed to his appointed place of duty, to wit:  Building XXX, supervised study, in violation of Article 86, UCMJ.  The punishment consisted of the applicant being reduced to the grade of airman basic, but the execution of that portion of this punishment which provides for reduction to airman basic was suspended until 30 May 1971, at which time, unless this suspension was sooner vacated, it would be remitted without further action.

On 23 January 1973, the commander notified the applicant that he was proposing to impose punishment upon him pursuant to Article 15, Uniform Code of Military Justice (UCMJ).  The reason for the punishment was:  The applicant did, at Ramey AFB, Puerto Rico, on or about 11 January 1973, behave himself with disrespect toward his superior commissioned officer, by contemptuously turning from and walking away while he, the superior commissioned officer, was talking to him, in violation of the UCMJ, Article 89.  The punishment consisted of reduction to the grade of airman and an order to perform extra duty for 20 consecutive days, but the execution of that portion of this punishment which provided for reduction to airman was suspended until 1 June 1973, at which time, unless this suspension was sooner vacated, it will be remitted without further action.

On 27-28 September 1973, the applicant was tried by a general court-martial at Ramey Air Force Base, Puerto Rico.  He was charged with failing to obey a lawful general regulation by possessing 76.28 grams of marijuana and by selling 409.7 grams of marijuana, in violation of Article 92, UCMJ.  The applicant was found guilty in a trial before a judge alone.  On 28 September 1973, the court sentenced him to receive a dishonorable discharge, be confined for one year, forfeit all pay and allowances, and be reduced to the grade of airman basic.  On 13 December 1973, the convening authority approved the sentence as adjudged.  On 1 April 1974, that portion of the applicant’s sentence in excess of nine months of confinement was remitted based on clemency.

Because his approved sentence included a dishonorable discharge, the applicant’s conviction was reviewed by the United States Air Force Court of Military Review (now called the Air Force Court of Criminal Appeals).  On 5 April 1974, the Air Force Court of Military Review affirmed the finding of guilty.  On 6 August 1974, United States Court of Military Appeals (now the U.S. Court of Appeals for the Armed Forces) denied the applicant’s petition for Grant of Review.  The applicant was discharged on 5 September 1974 with a dishonorable discharge.  He served 4 years, 3 months and 11 days on active duty.  Time lost was the period 28 September 1973 through 4 April 1974 (187 days) due to confinement.

On 7 January 2004, AFPC/DPPRSP informed the applicant that there was an error on his DD Form 214, Certificate of Release or Discharge from Active Duty, and another DD Form 214 had been completed to correct his character of service to dishonorable, rather than under other than honorable conditions as shown on the old DD Form 214.

Pursuant to the Board’s request, the Federal Bureau of Investigation, Clarksburg, West Virginia, provided an investigative report which is attached at Exhibit C.

_________________________________________________________________

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 possessed and sold marijuana when he was aware it was illegal.  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 four years, forfeiture of all pay and allowances, and reduction to the lowest enlisted grade.  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.  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 dishonorable 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 dishonorable 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 D.

_________________________________________________________________

APPLICANT'S REVIEW OF AIR FORCE EVALUATION:

On 16 January 2004, a copy of the Air Force evaluation was forwarded to the applicant for review within 30 days; on 20 February 2004, a copy of the Federal Bureau of Investigation (FBI) Report was forwarded to the applicant for review within 14 days, as of this date, no response has been received by this office.

_________________________________________________________________

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 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 court-martial.  In view of the extreme seriousness of the misconduct he committed (i.e., the possession and sale of an illegal substance), the less than satisfactory overall quality of his service and his refusal to accept responsibility for his actions, we do not believe the clemency is warranted at the present time.

_________________________________________________________________

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.

_________________________________________________________________

The following members of the Board considered this application in Executive Session on 22 April 2004, under the provisions of AFI 36-2603:

The following documentary evidence was considered:

	Exhibit A.	DD Form 149, dated 10 Nov 03.
	Exhibit B.	Applicant's Master Personnel Records.
	Exhibit C.	FBI Report.
	Exhibit D.	Letter, AFLSA/JAJM, dated 11 Dec 03.
	Exhibit E.	Letter, SAF/MRBR, dated 16 Jan 04.