RECORD OF PROCEEDINGS
AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS

IN THE MATTER OF:				DOCKET NUMBER:  BC-2004-00066
								INDEX CODE:  131.05
								COUNSEL:  NONE

								HEARING DESIRED:  NO
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APPLICANT REQUESTS THAT:

He be restored to the grade of Master Sergeant (E-7).
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APPLICANT CONTENDS THAT:

He decided to retire in January 1993 after completing 20 years of military service.  In April 1993, he was randomly selected for a drug urinalysis test that indicated the presence of cocaine.

His responsibilities as command equipment manager included the acquisition, distribution and transfer of five hundred million dollars worth of A-10 aircraft support equipment, and attending site surveys.  His knowledge and job performance allowed him to continue in his normal duties.  He was tried and convicted by a military judge, reduced to the rank of senior airman, and served three months of jail time.  He retired in February 1994.  His wife of 20 years divorced him; he was mentally drained and could not handle his personal responsibilities.  His monthly income is minimal, and he owes $8,000.00 in child support.  

In May 1995, he relocated to Greenville, South Carolina, to work for an independent aircraft maintenance contractor for one year.  However, this position terminated after three months, and he worked in a series of other positions until he returned to his home of record in New Jersey.  He currently works for a tractor-trailer company as a welder for $13.00 an hour.  

His military attorney had told him that he would have to wait 30 years (20 years of active duty plus 10 years of inactive reserve) to have his rank restored, and there was no guarantee his rank would be restored.

He served in the military for over twenty years, and is proud to have been a part of the greatest military organization in the world.  His dedication to country and commands is reflected in his performance reports, decorations, and professional military education.

In support of his request, the applicant has submitted a personal statement and his separation document.  The applicant’s complete submission, with attachments, is at Exhibit A.
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STATEMENT OF FACTS:

On 30 July 1973, the applicant enlisted in the Regular Air Force at the age of 18 in the grade of airman basic for a period of four years.  The applicant was progressively promoted to the rank of master sergeant, effective and with a date of rank of 1 December 1989.  The following is a resume of his Enlisted Performance Reports (EPRs), commencing with the report closing 1 January 1985.

	PERIOD ENDING	PROMOTION RECOMMENDATION

		1 Jan 1985 (TSgt)		9
		1 Jan 1986		9
		1 Jan 1987		9
		1 Jan 1988		9
		1 Jan 1989		9
		1 Jan 1990 (MSgt)		5
	17 May 1990		5
	20 Apr 1991		5
	20 Apr 1992		5
	20 Apr 1993		5

Information provided by the Air Force office of primary responsibility indicates that the applicant was charged with wrongful use of cocaine based on a positive urinalysis and the charge was referred for trial by court-martial on 7 September 1993.  The applicant was tried before a judge alone, pled guilty to, and was found guilty of, the charge and specification excepting the words “on divers occasions.”  The applicant entered into a pretrial agreement pursuant to which the convening authority agreed not to approve that part of a sentence of confinement longer than 12 months and agreed not to approve a reduction lower than senior airman (E-4).  On 20 October 1993, the court sentenced the applicant to confinement for four months, forfeiture of $200 pay per month for four months, and reduction to the grade of E-4.  On 28 December 1993, the convening authority approved the sentence, as adjudged.

On 23 February 1994, the Secretary of the Air Force determined that the applicant should not be advanced to any grade higher than senior airman (E-4) on the retired list under the provisions of Section 8964, Title 10, United States Code.  The applicant retired effective 28 February 1994 in the grade of senior airman.  He had served 20 years, 3 months and 20 days on active duty.
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AIR FORCE EVALUATION:

AFLSA/JAJM recommends denial.  It is JAJM’s opinion that there is no legal basis for restoring the applicant’s rank.  There was no error or injustice related to the prosecution.  The basic facts of the applicant’s crimes are detailed in the record of trial.  Essentially, the applicant was watching a basketball game on television with two friends while snacking and drinking beer.  One of his friends went out to buy more beer and came back with a baggie containing what the applicant admits he knew was cocaine.  The friend placed three lines of cocaine on a table in front of the applicant, and he voluntarily ingested the narcotic.  His subsequent urinalysis established the presence of cocaine in his system at a level well above the legal limit.

JAJM states there was no error or injustice related to the sentence.  The applicant was tried in the appropriate forum (general court-martial), in accordance with the offense.  The maximum punishment authorized for the offence for which the applicant was convicted was a dishonorable discharge, confinement for 5 years, forfeiture of all pay and allowances, and reduction to the grade of airman basic.  The sentence given the applicant was well within the legal limits and was appropriate punishment for the offense committed.  The applicant had the assistance of counsel.  The applicant’s sentence was significantly less severe than the sentence he agreed to accept as part of the pretrial agreement.  The applicant provides no compelling rationale to mitigate the approved sentence.  Although the applicant’s service prior to his cocaine use may have been exemplary, there is more expected of a military member than doing a great job.  Air Force members must adhere to established standards, and the applicant failed to do so.  JAJM opinions the applicant presents insufficient evidence to warrant the relief he requests.  A complete copy of the JAJM’s advisory opinion is at Exhibit C.

AFPC/DPPPWB deferred to JAJM’s recommendation.  A complete copy of DPPPWB’s advisory opinion is at Exhibit D.
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APPLICANT'S REVIEW OF AIR FORCE EVALUATION:

In his letter dated 26 April 2004, the applicant notes JAJM’s mention of his exemplary record, and states that he adhered to Air Force regulations and standards to the utmost of his ability.  He is of the opinion that he was doing more for his country than merely a good job, which is reflected by his enlisted performance reports, awards and decorations, and professional military education.  He honestly does not believe he was represented fairly by his military appointed lawyer, or that he was given a fair sentence (see Exhibit F).
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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 error or injustice.  In essence, the applicant is contending that his retirement in the grade of senior airman is unjust when balanced against the quality of his entire career.  The applicant’s reduction in grade had its basis in his trial and conviction by a military court.  We believe it should be noted that a substantially harsher punishment was authorized under the UCMJ for the offense of which the applicant stood convicted.  Notwithstanding the applicant’s otherwise excellent service record, we do not find the available records and the evidence submitted by the applicant sufficient to establish he was the victim of an error or an injustice warranting further action on his approved court-martial sentence based on clemency.  In view of the above and absent information by the applicant leading us to believe the determination prior to his retirement that he had not served satisfactorily in a grade higher than senior airman represents an abuse of discretionary authority, the applicant’s request 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 probable material error or injustice; that the application was denied without a personal appearance; and that the application will only be reconsidered upon the submission.
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The following members of the Board considered this application in Executive Session on 27 May 2004, under the provisions of AFI 36-2603:
The following documentary evidence was considered in connection with AFBCMR Docket Number BC-2004-00066.

	Exhibit A.  DD Form 149, dated 27 Jan 04, with attachments.
	Exhibit B.  Applicant’s Master Personnel Records.
	Exhibit C.  Letter, AFLSA/JAJM, dated 12 Mar 04.
	Exhibit D.  Letter, AFPC/DPPPWB, dated 24 Mar 04.
	Exhibit E.  Letter, SAF/MRBR, dated 2 Apr 04.

		Panel Chair