RECORD OF PROCEEDINGS
         AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS

IN THE MATTER OF:	DOCKET NUMBER:  BC-2004-02617
		INDEX CODE:  110.00

		COUNSEL:  NONE

		HEARING DESIRED:  NO

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APPLICANT REQUESTS THAT:

His bad conduct discharge be upgraded to a general discharge.

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APPLICANT CONTENDS THAT:

He has paid for his mistake for which he is truly sorry.  He should have been given rehabilitation.

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 23 May 1996 in the grade of airman basic for a period of four years.  He was progressively promoted to the grade of airman on 23 November 1996.

The applicant, then an airman (E-2), was tried before a general court-martial at Fairchild Air Force Base, Washington, on 17 June 1997.  The applicant was assigned to the 92d Medical Operations Squadron at Fairchild.  It was alleged that, in the fall of 1996, while attending technical training at Wright-Patterson AFB, Ohio, immediately following basic training, the applicant and two other individuals ingested LSD and, soon after, the applicant and four other airmen conspired to purchase psilocybin (a hallucinogen found in certain mushrooms).  The conspirators pooled their money, traveled to Cincinnati to engage a seller, and purchased the mushrooms.  Once purchased, the applicant consumed some of the mushrooms.

Based on his reported misconduct, the applicant was charged with one specification of conspiracy, in violation of Article 81 of the UCMJ; one specification of wrongful use of LSD, in violation of Article 112a; and one specification of wrongful use of psilocybin, in violation of Article 112a.  On 11 May 1997, the charges were referred for trial by general court-martial.  At his court-martial, the applicant was tried before a military judge sitting without a panel of officers.  The applicant pled guilty to, and was found guilty of, all charges.  The military judge sentenced the applicant to a bad conduct discharge, confinement for five months, forfeiture of $250 pay per month for six months, and reduction to the grade of E-1.  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 10 months.  On 18 July 1997, the convening authority approved the sentence and, except for the discharge, ordered the sentence executed.

In the meantime, prior to his trial by court-martial, the applicant was seen in the Mental Health Clinic for a substance abuse evaluation.  The interviewer indicated he admitted to one time use of acid and mushrooms in December 1996 and prior use of marijuana.  No psychiatric diagnoses were rendered.  Based on his interview, he was thereafter entered into Track V of rehabilitation (Substance Abuse and Awareness and Reorientation Seminar).

Because his approved sentence included a bad conduct discharge, the United States Air Force Court of Criminal Appeals reviewed the applicant’s conviction.  On 26 February 1998, the court affirmed the conviction and the approved sentence.  The applicant petitioned the United States Court of Appeals for the Armed Forces for review, which was denied on 9 June 1998.  With appellate review concluded, the applicant’s bad conduct discharge was executed on 16 July 1998.  He was credited with 2 years, 1 month and 24 days of active duty.  Time lost was 17 June 1997 through 18 October 1997 due to confinement.

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AIR FORCE EVALUATION:

AFLSA/JAJM states there is no legal basis for upgrading applicant’s discharge.  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.  Therefore, the applicant was thus afforded all rights granted by statute and regulation.  The sentence was within the legal limits and was appropriate punishment for the offenses committed.  Conversely, the requested relief, an upgrade in discharge characterization, even to a general (under other than honorable conditions), is inappropriate given the seriousness of the applicant’s crimes.

As to the applicant’s contention that he should have been, but was not, afforded rehabilitation, to the extent he is referring to treatment to overcome any drug addiction he was suffering from, they doubt his contention is true.  Therefore, they recommend denial of applicant’s request.

A complete copy of the evaluation is attached at Exhibit C.

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APPLICANT'S REVIEW OF AIR FORCE EVALUATION:

Applicant states he understands what he did in the past was not very intelligent.  Five years ago he was a young impressionable man, now he is an older and wiser man and a father of four.  He has learned a lot from his past that makes him who he is today.  The sentence he served for his crime was very appropriate, but he does not think he should have to pay for it the rest of his life.  For the last three or four years he has tried to improve his skills and knowledge by applying for different jobs.  He has all the experience and a strong work history, but he does not qualify for any of the jobs because of his military record.  He feels his punishment should have been for his crime not for his life.  He wants to provide for his family to the best of his ability.  He has gone through some college and still going to prove that the past does not make him the person he is today.  He understands his crime was very serious, but he is truly sorry and would like to be given a second chance at a new career without the past derailing his plans and future goals.  Please consider this was over five years ago when he was a young man and now he is a man--a family man.

Applicant’s response is attached at Exhibit E.

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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 probable error or injustice.  After reviewing the evidence of record, the Board is not persuaded that the applicant’s records are in error or that he has been the victim of an injustice.  His contentions are noted; however, it is the opinion of the Board that the detailed comments provided by the appropriate Air Force office adequately address those allegations.  Therefore, the Board agrees with the opinions and recommendation of the Air Force and adopt its rationale as the basis for the conclusion that the applicant has not been the victim of an error or injustice.  In the absence of evidence to the contrary, the majority finds no compelling basis 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 this application in Executive Session on 6 January 2005, under the provisions of AFI 36-2603:

The Board recommended denial of the application.  Mr. XXXXXXX abstained from voting.  The following documentary evidence was considered:

	Exhibit A.	DD Form 149, dated 1 Aug 04, w/atch.
	Exhibit B.	Applicant's Master Personnel Records.
	Exhibit C.	Letter, AFLSA/JAJM, dated 26 Oct 04.
	Exhibit D.	Letter, SAF/MRBR, dated 5 Nov 04.
	Exhibit E.	Applicant’s Response, dated 18 Nov 04.