RECORD OF PROCEEDINGS
         AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS

IN THE MATTER OF:	DOCKET NUMBER:  BC-2004-02125
		INDEX NUMBER:  110.00

		COUNSEL:  NONE

		HEARING DESIRED:  NO

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APPLICANT REQUESTS THAT:

His bad conduct discharge be upgraded to an under honorable conditions (general) discharge.

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APPLICANT CONTENDS THAT:

Since leaving the Air Force, he no longer indulges in drug activity nor has he been in any trouble.  He is a responsible citizen, raised his children, and has been a role model for them.  He has helped people get off drugs.

Applicant submitted a list of issues he believes are the reasons his discharge should be upgraded to honorable.

Applicant’s complete submission, with attachment, is at Exhibit A.

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STATEMENT OF FACTS:

Applicant enlisted in the Regular Air Force on 14 Dec 75, in the grade of airman basic, for a period of four years.  He was honorably released from active duty on 17 Dec 79, and transferred to the Air Force Reserve.  Applicant was honorably discharged from the Air Force Reserve on 13 Mar 80.

He reenlisted in the Regular Air Force on 14 Mar 80, in the grade of sergeant, for a period of four years.  His highest grade held was staff sergeant, effective and with a date of rank of 1 Aug 85.  He received seven performance reports during this enlistment reflecting overall ratings of (oldest to latest): 8, 7, 5 (ref), 9, 7, 8, and 9.

The applicant was tried by a general court-martial on 17 Apr 86, and was charged with four specifications:  (1) Wrongful use of marijuana on divers occasions between about 15 Jul 85 and about   15 Nov 85; (2) Wrongful distribution of one-half gram of cocaine and some amount of marijuana, on or about 30 Aug 85; (3) Wrongful possession of one-half gram of cocaine, on or about 30 Aug 85; and (4) Wrongful distribution of marijuana, on or about 6 Nov 85.  The applicant pled guilty to all the specifications and charges.  

The military judge found him guilty on all charges and sentenced him to a bad conduct discharge (BCD), confinement for 18 months, forfeitures of all pay and allowances, and reduction to the grade of airman basic (E-1).  The convening authority approved the sentence on 29 May 86, and the court-martial was affirmed on 2 Feb 87.  Applicant was discharged with a BCD on 23 Mar 87.  He was credited with 6 years, 1 month, and 4 days of active military service (excludes 11 months and 6 days of lost time due to confinement).

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AIR FORCE EVALUATION:

AFLSA/JAJM reviewed this application and recommended denial.  JAJM states the applicant’s contentions are without merit and constitute neither error nor injustice.  

JAJM states 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’s punitive discharge accurately reflects the character of his service.  The maximum punishment authorized for the offenses for which the applicant was convicted was a dishonorable discharge, confinement of 37 years, total forfeitures, and reduction to E-1.  The sentence was well within the legal limits and was a fitting punishment for the offenses committed.  Despite the applicant’s contentions, the sentence was not disproportionate to either the offenses or his prior military record.  Conversely, the requested relief, an upgrade in discharge characterization is inappropriate given the seriousness of the applicant’s crimes.

The applicant has identified no error or injustice related to his prosecution or the sentence, and presents insufficient evidence to warrant any relief.

A complete copy of the Air Force evaluation is at Exhibit C.

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APPLICANT'S REVIEW OF AIR FORCE EVALUATION:

Applicant contends his lack of timeliness in submitting his request is due to his transition back to civilian life after spending ten years in the military.  He feels leading a life of positive character and staying out of further drug-related behavior is a more challenging 17 years than submitting his application within the three-year requirement.  He takes responsibility for his past behavior and finds no error in the court-martial proceedings.  He does not understand why he was not offered rehabilitation.  The bad conduct discharge has not stopped him from achieving anything.  It does not seem right to imply lack of honorable service due to one incident, which would be minor in the civilian world.

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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.  The applicant’s discharge had its basis in his trial and conviction by general court-martial for drug-related offenses.  After careful consideration of the available evidence, we found no indication that the actions taken to effect his discharge were improper or based on factors other than his own misconduct.  We therefore conclude that the discharge was proper and the characterization of his service was appropriate to the existing circumstances.

4.  We also find insufficient evidence to warrant a recommendation that the discharge be upgraded on the basis of clemency.  In this respect, we have considered the applicant’s overall quality of service, the events that precipitated his trial by court-martial and subsequent discharge, and the absence of evidence related to his post-service activities and accomplishments.  On balance, we do not believe clemency is warranted.

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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 Docket Number BC‑2004-02125 in Executive Session on 19 October 2004, under the provisions of AFI 36‑2603:

	

The following documentary evidence was considered:

    Exhibit A.  DD Form 149, dated 12 Jul 04, w/atch.
    Exhibit B.  Applicant's Master Personnel Records.
    Exhibit C.  Letter, AFLSA/JAJM, dated 23 Aug 04.
    Exhibit D.  Letter, SAF/MRBR, dated 10 Sep 04.
    Exhibit E.  Letter, Applicant, dated 10 Oct 04.