RECORD OF PROCEEDINGS
         AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS

IN THE MATTER OF:	DOCKET NUMBER:  BC-2004-02041
		INDEX NUMBER:  110.00
	XXXXXXXXXXXX	COUNSEL:  None

	XXXXXXX	HEARING DESIRED:  No

_________________________________________________________________

APPLICANT REQUESTS THAT:

His dismissal from the Air Force be upgraded to honorable.

_________________________________________________________________

APPLICANT CONTENDS THAT:

Since leaving the military, he has refocused his life and is attempting to make a positive influence on society.  He has received a Master of Arts degree in religion and a Master of Divinity degree.  He is also a licensed insurance underwriter, a licensed private investigator, and is currently attending school working toward a teaching certification while teaching school.  He is pastoring a church with a strong ministry for disadvantaged children.  He also works with the presbytery in the city where he lives.

The applicant’s complete submission is at Exhibit A.

_________________________________________________________________

STATEMENT OF FACTS:

The applicant entered active duty in the Air Force on 9 Sep 80.  He was dismissed from service as a sentence of court-martial on 28 Aug 87.  The following facts were provided in the evaluation prepared by the Air Force office of primary responsibility:

	  a.  On 24 Sep 85 the applicant provided a urinalysis sample during a random urinalysis, which tested positive for the presence of marijuana.

	  b.  On 3 Dec 85, the applicant’s commander preferred one charge of wrongful use of marijuana, in violation of Article 112a of the Uniform Code of Military Justice (UCMJ).

	  c.  On 17 Dec 85, the applicant submitted a resignation in lieu of court-martial (RILO) request.  His request was subsequently disapproved.

	  d.  On 16 May 86, the court-martial convening authority withdrew the original charge and referred another charge that expanded the time period and location for the alleged use.

	  e.  The applicant again requested a RILO, which was subsequently disapproved on 14 Jul 86.

	  f.  The applicant was tried on 14-18 and 21-24 Jul 86 by a general court-martial consisting of military judge alone.  The applicant pleaded not guilty and was represented by a military defense counsel and civilian counsel.

	  g.  The applicant was found guilty of the charge and specification.  He was sentenced to a dismissal and forfeiture of $500.00 per month for four months.  His sentence was subsequently upheld through the various reviews and appeal process.  On 13 Aug 87, the Secretary of the Air Force approved only so much of the applicant’s sentence as provided for dismissal.  The applicant was dismissed from service effective 28 Aug 87.

Additional facts pertinent to this case are contained in the evaluation prepared by the appropriate office of the Air Force found at Exhibit C.

_________________________________________________________________

AIR FORCE EVALUATION:

AFLSA/JAJM recommends the applicant’s appeal be denied.  Wrongful use of marijuana by a military member is a serious offense.  During his court-martial, applicant’s defense offered a 15 Jan 86 Congressional Inquiry where the applicant had requested an investigation into the possibility of racial discrimination in the processing of his RILO package.  Though the applicant’s RILO was the only one in a urinalysis case not accepted in 1985, it was determined there was no evidence of selective prosecution because RILOs submitted by both white and black officers had been approved.  However, they note that during the period from fiscal year 83 to 95, every officer accused of a single instance of marijuana use who submitted a RILO was allowed to resign.  None of those officers received an honorable discharge.

AFLSA/JAJM discusses the circumstances that led to two officers, prior to the applicant’s RILO submission, assigned to the same base as the applicant being allowed to resign in lieu of court-martial after their urine tested positive for marijuana.  Those officers’ cases were approved due to problems with the chain of custody.  They explained the problems encountered with collection of the applicant’s sample.

AFLSA/JAJM concludes the applicant’s court-martial was properly conducted and he was afforded all the rights accorded by law.  Despite the apparent discrepancies in the urinalysis process, a military judge determined there was sufficient evidence to find the applicant committed the offense.  They note the Board may want to advise the applicant of the procedures to apply for a Presidential pardon, should the Board deny relief.

The complete evaluation is at Exhibit C.
_________________________________________________________________

APPLICANT'S REVIEW OF AIR FORCE EVALUATION:

A copy of the Air Force evaluation was forwarded to the applicant on 24 Sep 04 for review and comment within 30 days.  To date, a response has not been received.

_________________________________________________________________

FBI REPORT AND ADDITIONAL INFORMATION:

Pursuant to the Board’s request, an FBI report on the applicant was provided.  The report indicated the applicant does not have an arrest record (Exhibit E).  A letter was also sent to the applicant advising him he failed to provide pertinent information regarding his activities since leaving the service.

_________________________________________________________________

APPLICANT’S ADDITIONAL INFORMATION:

The applicant responded to the request for additional information concerning his activities since leaving service.  He also provided additional information regarding his military service.  The applicant provided copies of his academic transcript, diploma, and additional letters of reference.

The applicant’s complete submission, with attachments, is at Exhibit G.

_________________________________________________________________

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.  Sufficient relevant evidence has been presented to warrant granting the applicant some relief based on clemency.  While we note the applicant’s request to upgrade his dismissal to an honorable discharge, we do not believe the circumstances of his case justify this particular relief.  We believe such relief would be inconsistent with the character of discharge received by others similarly situated at the time of his dismissal.  However, we do believe that an upgrade of his dismissal to general (under honorable conditions) is appropriate.  We base this on our view that the evaluation prepared by AFLSA/JAJM gives the impression the applicant’s request for a RILO may have been handled differently than other requests with similar circumstances at the time.  Additionally, the applicant has provided sufficient evidence he has turned his life around and become a productive member of his community and greater society at large.  These factors lead us to recommend his records be corrected as indicated below.

__________________________________________________________________

THE BOARD RECOMMENDS THAT:

The pertinent military records of the Department of the Air Force relating to APPLICANT, be corrected to show that on 28 August 1987, he was discharged from the Air Force by General Court Martial Order Number 31, dated 13 August 1987, with service characterized as general (under honorable conditions).

__________________________________________________________________

The following members of the Board considered Docket Number BC-2004-02041 in Executive Session on 15 December 2004, under the provisions of AFI 36-2603:

All members voted to correct the records, as recommended.  The following documentary evidence was considered:

     Exhibit A.  DD Form 149, dated 2 Jul 04, w/atchs.
     Exhibit B.  Applicant's Master Personnel Records.
     Exhibit C.  Memorandum, AFLSA/JAJM, dated 22 Sep 04.
     Exhibit D.  Letter, SAF/MRBR, dated 24 Sep 04.
     Exhibit E.  FBI Report, dated 7 Oct 04.
     Exhibit F.  Letter, AFBCMR, dated 22 Oct 04.
     Exhibit G.  Letter, Applicant, dated 17 Nov 04, w/atchs.

AFBCMR BC-2004-02041

MEMORANDUM FOR THE CHIEF OF STAFF

	Having received and considered the recommendation of the Air Force Board for Correction of Military Records and under the authority of Section 1552, Title 10, United States Code (70A Stat 116), it is directed that:

	The pertinent military records of the Department of the Air Force relating to XXXXXXX, XXXXXXX, be corrected to show that on 28 August 1987, he was discharged from the Air Force by General Court Martial Order Number 31, dated 13 August 1987, with service characterized as general (under honorable conditions).