RECORD OF PROCEEDINGS
AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS

IN THE MATTER OF:	DOCKET NUMBER:  BC-2004-00617
		INDEX CODE:  110.02
		COUNSEL:  NONE

		HEARING DESIRED:  NO

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APPLICANT REQUESTS THAT:

His type of discharge be corrected.

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APPLICANT CONTENDS THAT:

He was a top-notch airman before he tested positive for illegal drug use.  He served honorably for ten years, to include participation in the Panama and Gulf Wars.  He was going through a deep depression at the time of his discharge and did not receive proper treatment.  He was not aware that he could question this error.

In support of the application, the applicant submits his application.  The applicant's complete submission is at Exhibit A.
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STATEMENT OF FACTS:

The applicant enlisted in the Regular Air Force on 29 December 1982 at the age of 18 in the grade of airman basic (E-1) for a period of four years.  He was progressively promoted to the grade of Staff Sergeant.

The following is a resume of Airman/Enlisted Performance Reports (APR/EPRs), commencing with the report closing 18 August 1981.

	PERIOD ENDING	PROMOTION RECOMMENDATION

	28 December 1983		9
	8 January 1985		9
	31 August 1985		9
	30 June 1986 (SrA)		9
	30 June 1987 (Sgt)		9
	30 November 1987		9
	30 November 1988		9
	30 November 1989		5
	18 December 1990 (SSgt)		5
	29 January 1992		2
Information provided by the Air Force office of primary responsibility indicates pursuant to his plea of guilty, the applicant was tried and convicted of drug use (cocaine) by a general court-martial on 28-29 January 1992.  His sentence included a reduction to E-1 (airman basic), confinement for three months, and a bad conduct discharge.  The convening authority approved his sentence as adjudged.  On 18 December 1992, the Air Force Court of Military Review approved and affirmed the findings of guilty and the sentence.  The final order was promulgated on 9 April 1993, and the bad conduct discharge executed on 8 December 1993. 

On 8 December 1993, the applicant was discharged with a bad conduct discharge.  He had served 10 years, 11 months, and 11 days on active duty.  He had 75 days of lost time due to confinement.

The remaining relevant facts pertaining to this application, extracted from the applicant’s military records, are contained in the letter prepared by the appropriate office of the Air Force at Exhibit C. 

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AIR FORCE EVALUATION:

AFLSA/JAJM recommends denial.  JAJM states the applicant does not specify what relief he is seeking, but appears to be requesting removal of his court-martial conviction, which is not an available remedy.  JAJM notes the applicant’s contention that a specific error occurred which requires the correction of his court-martial, but there is no indication in the record of such an error.  The military judge specifically discussed with the applicant his military record, including service in two wars, and noted that but for the applicant’s good prior personal and military record, his sentence would have been very different.  In other words, the applicant already received credit for his military record.  The sentence given the applicant was well within the legal limits and was appropriate punishment for the offense committed.

In addition to the above, JAJM noted that the Board is not empowered to set-aside or reverse the findings of guilty by a court-martial.  Rather, in accordance with Title 10, United States Code, Section 1552(f), actions by this Board are limited to corrections to the record to reflect actions taken by the reviewing officials and action on the sentence of the court-martial for the purpose of clemency.  JAJM does not believe there is a basis for any relief as to the sentence of the military court in this case.

JAJM’s 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 for review and comment.  As of this date, this office has received no response (Exhibit D).

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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.  We are not persuaded by the evidence presented that the separation characterization received by the former member should be changed.  The former member's discharge was based on his trial and conviction by a general court-martial.  While law precludes us from reversing a court-martial conviction, we are authorized to correct the records to reflect actions taken by reviewing officials and to take action on the sentence of a military court based on clemency.  There is nothing in the available record that would cause us to disturb the actions of the reviewing officials or to warrant a correction of his records based on clemency.  In the absence of such evidence, 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 of newly discovered relevant evidence not considered with this application.

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The following members of the Board considered in Executive Session on 30 September 2004, under the provisions of AFI 36-2603:

The following documentary evidence was considered in connection with Docket Number BC-2004-00617:

    Exhibit A.  DD Form 149, dated Apr 6, 2004.
    Exhibit B.  Applicant's Master Personnel Records.
    Exhibit C.  Letter, AFLSA/JAJM, dated 21 May 2004.
    Exhibit D.  Letter, SAF/MRBR, dated 28 May 04.