RECORD OF PROCEEDINGS
         AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS

IN THE MATTER OF:	DOCKET NUMBER:  BC-2004-01539
		INDEX CODE:  110.02

	XXXXXXX	COUNSEL:  XXX

	XXXXXXX	HEARING DESIRED: NO

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APPLICANT REQUESTS THAT:

His dishonorable discharge be upgraded to honorable.

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APPLICANT CONTENDS THAT:

He had three previous honorable discharges and his last enlistment was filled with successes and achievements until the events which led to his court-martial.  His charges were changed during the trial because of the misrepresentation by the prosecution witness.

In support of his appeal, applicant submitted a personal statement.

Applicant’s complete submission is at Exhibit A.

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STATEMENT OF FACTS:

On 29 December 1972, the applicant enlisted in the Regular Air Force in the grade of airman basic (E-1).  Applicant had continuous honorable active military service from 29 December 1972 through 5 December 1989.  Prior to the events cited below, he was promoted to the grade of master sergeant (E-7), with an effective date and date of rank of 4 May 1989.  He entered his last enlistment on 6 December 1989.

On 23 May 1993, applicant was tried by General Court-Martial.  He was charged with two specifications of wrongful use of cocaine in violation of Article 112a, UCMJ, (in Mar 92 and Aug/Sep 92); one specification of conspiracy to distribute cocaine in violation of Article 81, UCMJ; one specification of wrongful possession of cocaine in violation of Article 112a, UCMJ; one specification of wrongful possession of heroin in violation of Article 112a, UCMJ; one specification of wrongful distribution of cocaine in violation of Article 112a, UCMJ; one specification of willful disobedience in violation of Article 90, UCMJ, for disobeying an officer who ordered him to report; and one specification of absence without leave (AWOL) for being absent from work without authorization from 23 Oct 92 until 26 Oct 92, in violation of Article 86 of the UCMJ.  He was apprehended and placed in pretrial confinement on 26 October 1992.  Applicant pled not guilty to all the charged offenses.  He was found guilty of all the offenses except possession of heroin.  He was sentenced to reduction in grade to airman basic (E-1), confinement for 15 years, and a dishonorable discharge.

On 15 Aug 97, he was discharged pursuant to the General Court-Martial Order, with a dishonorable discharge.  He was credited with 21 years, 6 months, and 5 days of active duty (excludes time lost for confinement from 26 Oct 1992 through 7 Dec 1995).

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AIR FORCE EVALUATION:

AFLSA/JAJM recommended denial of the applicant’s request to have his discharge upgraded to honorable.  The applicant, then a master sergeant, was convicted on 23 May 93 during a general court-martial.  

He was represented at trial by military counsel.  Applicant pled not guilty to all the charged offenses, but was found guilty of all the offenses except possession of heroin.  On 30 Aug 93, the convening authority approved the sentence as adjudged.

On 12 Dec 95, the United States Air Force Court of Criminal Appeals affirmed the findings and sentence.  On 11 Aug 97, the dishonorable discharge was executed pursuant to the final court-martial order.

The maximum punishment authorized for the offenses for which the applicant was convicted was a dishonorable discharge, confinement for over 27 years, total forfeitures of all pay and allowances, and reduction to E-1.  The sentence was well within the legal limits and the bad conduct discharge was an appropriate punishment for the offense committed.  The findings of guilty and the sentence, including the dishonorable discharge, were affirmed upon appellate review.

A dishonorable discharge is reserved for those who should be separated with dishonor, after having been convicted of offenses usually recognized in civilian jurisdictions as felonies, or of offenses of a military nature requiring severe punishment.  The applicant committed several serious offenses that clearly amounted to dishonorable conduct.  

His court-martial was properly conducted and he was afforded all the rights accorded by law.  The applicant did not serve honorably and the evidence presented is insufficient to warrant upgrading the discharge, and does not demonstrate an equitable basis for relief.  Therefore, there is no reason required by law to grant the relief requested.

A complete copy of the evaluation is at Exhibit D.

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APPLICANT'S REVIEW OF AIR FORCE EVALUATION:

A copy of the Air Force evaluation was forwarded to the applicant on 3 Sep 04 for review and comment 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 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.  Applicant’s contentions are duly noted.  However, we do not find his arguments sufficiently persuasive to override the rationale provided by the Associate Chief, Military Justice Division.  The evidence of record reflects the applicant was convicted by general court-martial of wrongful use, possession and distribution of cocaine, disobeying a lawful order, and being absent without leave (AWOL).  No evidence has been presented which would lead us to believe that the applicant’s service characterization was improper.  Additionally, we note applicant’s prior honorable periods of service.  Nonetheless, in view of the seriousness of the offenses committed during the period of service under review, we are not persuaded that an upgrade of the characterization of his discharge is warranted on the basis of clemency.  Therefore, in the absence of persuasive evidence to the contrary, we adopt the Air Force rationale as the basis for our conclusion that the applicant has not been the victim of an error or injustice and conclude that no basis exists to recommend granting the relief sought in this application.  

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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 AFBCMR Docket Number BC-2004-01539 in Executive Session on 17 November 2004, under the provisions of AFI 36-2603:

The following documentary evidence was considered:

    Exhibit A.  DD Form 149, dated 20 May 04, w/atch. 
    Exhibit B.  Applicant's Master Personnel Records.
    Exhibit C.  Letter, HQ AFLSA/JAJM, dated 25 Aug 04.
    Exhibit D.  Letter, SAF/MRBR, dated 3 Sep 04.