RECORD OF PROCEEDINGS
         AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS

IN THE MATTER OF:	DOCKET NUMBER:  BC-2004-02683
		INDEX CODE:  110.00

		COUNSEL:  NONE

		HEARING DESIRED:  NO

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APPLICANT REQUESTS THAT:

His dishonorable discharge be upgraded to a general discharge.

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APPLICANT CONTENDS THAT:

Between the time he was charged and his trial, he participated in several undercover operations with the OSI.  He was not ordered to do this but voluntarily put his life on the line.  He never denied his actions were wrong but he was given no consideration for the dangers he endured for assisting those offices.  He served his time and he only asks that his discharge be upgraded so he might be able to support his wife and two children.

Applicant's complete submission is at Exhibit A.

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STATEMENT OF FACTS:

The applicant enlisted in the Regular Air Force on 3 August 1992 for a period of four years.  Records indicate the highest grade he held was senior airman.  He received four Enlisted Performance Reports (EPRs) closing 2 April 1994, 24 March 1995, 24 March 1996, and 24 March 1997, in which the overall evaluations were:  “4,” “4,” “3,” and “3.”

On 30 July 1997, the applicant was tried by a general court-martial at Barksdale AFB, LA.  He was charged with one specification of wrongful use of marijuana, one specification of wrongful distribution of marijuana, and one specification of wrongful possession of marijuana, between about 10 December 1996 and about 10 January 1997, in violation of Article 112a, UCMJ.  The applicant pled not guilty to two additional charges concerning attempted wrongful possession with intent to distribute, in violation of Article 80, UCMJ, and conspiring with another for the purchase of marijuana, in violation of Article 81, UCMJ.  The convening authority withdrew these charges pursuant to a pretrial agreement.

The applicant pled guilty to, and was found guilty of, the wrongful use, possession and distribution before a general court-martial composed of a military judge alone.  The military judge sentenced the applicant to a dishonorable discharge, confinement for forty-two months, forfeiture of all pay and allowances, and reduction to the grade of E-1 (airman basic).  The applicant entered into a pretrial agreement pursuant to which the convening authority agreed not to approve a sentence which exceeded a dishonorable discharge, confinement in excess of five years, total forfeitures, reduction to airman basic and a fine.  On 4 September 1997, the convening authority approved the sentence and, except for the discharge, ordered the sentence executed.

Because his approved sentence included a dishonorable discharge, the United States Air Force Court of Criminal Appeals reviewed the applicant’s conviction pursuant to Article 66, UCMJ.  On 25 June 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 2 September 1998.  With appellate review concluded, the applicant’s dishonorable discharge was executed on 20 November 1998.

On 1 December 1998, the applicant was discharged with a dishonorable discharge.  He served 5 years, 3 months and 26 days on active duty.  He had one year and three days of lost time.

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AIR FORCE EVALUATION:

AFLSA/JAJM states that 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.  These matters were considered in review of the sentence.  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.

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

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APPLICANT'S REVIEW OF AIR FORCE EVALUATION:

On 19 November 2004, a copy of the Air Force evaluation was forwarded to the applicant for review and response 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.  We took notice of the applicant's complete submission in judging the merits of the case; however, we agree with the opinion 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.  As stated, all the matters were considered in review of the sentencing; however, he presented no new evidence to warrant upgrading the discharge.  Therefore, in the absence of evidence to the contrary, we find 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 9 February 2005, under the provisions of AFI 36-2603:

The following documentary evidence pertaining to AFBCMR Docket Number BC-2004-02683 was considered:

	Exhibit A.	DD Form 149, dated 17 Sep 04.
	Exhibit B.	Applicant's Master Personnel Records.
	Exhibit C.	Letter, AFLSA/JAJM, dated 16 Nov 04.
	Exhibit D.	Letter, SAF/MRBR, dated 19 Nov 04.