RECORD OF PROCEEDINGS
AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS

IN THE MATTER OF:				DOCKET NUMBER:  BC-2006-00096
INDEX CODE:  110.02
								COUNSEL: NONE

								HEARING DESIRED:  NO

MANDATORY CASE COMPLETION DATE:  14 July 2007

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APPLICANT REQUESTS THAT: 

Her characterization of discharge be upgraded to general (under honorable conditions) so she may enter the Air Force Reserve or the Air National Guard.  In addition, her records be corrected to show she was convicted of only one offense, rather than two or more offenses.  

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APPLICANT CONTENDS THAT:

Apart from the misconduct resulting in her court-martial, she otherwise had an excellent record of active duty service.  The Air Force invested significant time and money in her, giving her skills with which she could still make a vital contribution to the Air Force mission.  Upgrading her discharge to allow her to enter the Air Force Reserve or Air National Guard would be in the best interest of the Air Force.  Her records are incorrect based on a letter sent to her by the Board of Nurse Examiners for the State of Texas.

In support of her application, she provides a DD Form 293, Application for the Review of Discharge or Dismissal From the Armed Forces of the United States; and copies of a letter from the Board of Nurse Examiners for the State of Texas, her charge sheet, and DD Form 214, Certificate of Release or Discharge From Active Duty.  A copy of the applicant’s complete submission, with attachments, is at Exhibit A.

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STATEMENT OF FACTS:

While serving in the Regular Air Force as a Nurse in the grade of captain, the applicant tested positive for cocaine during a random urinalysis test conducted on 13 January 2003.  On 24 March 2003, pursuant to a search authorization, investigators obtained a strand of the applicant’s scalp hair.  Upon testing, the sample indicated she had used cocaine one to three times a month for six to nine months.  On 19 December 2003, the applicant provided another urine sample in response to a search authorization that again tested positive for cocaine.  

On 2 June 2003, the applicant was charged with one specification of wrongfully using cocaine on divers occasions between 1 July 2002 and 24 March 2003, in violation of Article 112a of the Uniform Code of Military Justice (UCMJ).  On 25 June 2003, the charge was referred for trial by general court-martial.  On 27 January 2004, the applicant entered into a pretrial agreement, by which she pled guilty to the charge and specification. The convening authority agreed to disapprove any part of the sentence more than 180 days confinement and any adjudged fines.  At her 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, the charge and specification.  The military judge sentenced the applicant to dismissal, confinement for eight months, and forfeiture to all pay and allowances.  On 3 March 2004, pursuant to the pretrial agreement, the convening authority approved only so much of the sentence as provided for dismissal, confinement for 180 days, and forfeiture of all pay and allowances and ordered the sentence executed except for the discharge.  On 10 August 2004, the United States Air Force Court of Criminal Appeals affirmed the conviction and the sentence.  On 8 October 2004, the applicant petitioned the United States Court of Appeals.  On 8 December 2004, the court denied the petition.  On 28 February 2005, the applicant’s discharge was executed.  She served 23 years, 5 months, and 5 days on active duty.  

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AIR FORCE EVALUATION:

AFLSA/JAJM recommends denial.  JAJM states that under 10 United States Code (USC) Section 1552(f), which amended the basic corrections board legislation, the Air Force Board for Corrections of Military Record’s (AFBCMR) ability to correct records related to courts-martial, is limited.  Specifically, Section 1552(f)(1) permits the correction of a record to reflect actions taken by reviewing authorities under the UCMJ.  Additionally, Section 1552(f)(2) permits the correction of records related to action on the sentence of a court-martial for the purpose of clemency.  Apart from these two limited exceptions, the effect of Section 1552(f) is that the AFBCMR is without authority to reverse, set-aside, or otherwise expunge a courts-martial conviction that occurred on or after 5 May 1950 (the effective date of the UCMJ).  

JAJM states that there is no basis for granting the relief requested.  The dismissal was an appropriate punishment within the prescribed limits and discretion of the court-martial.  Despite the applicant’s contention that her military service can be assessed apart from her court-martial, the determination that she should be dismissed was rightly based on the totality of her service, including her criminal conduct.  In arriving at the sentence, the military judge considered the applicant’s service record, as did the convening authority in approving the sentence.  The dismissal fairly reflects the character of the applicant’s service, which was far from “excellent” and fell below the standards expected for Air Force officers.  The undisputed evidence in the applicant’s court-martial revealed she used cocaine frequently over a long period of time.  Such misconduct is entirely inconsistent with Air Force standards. 

JAJM states that as to any error in the records describing the results of the court-martial, the records are accurate.  The applicant was charged with, pled guilty to, and was convicted of one charge of multiple uses of cocaine which, is accurately reflected in the general court-martial orders in the record of trial.  Further, the evidence entered into the record, including the applicant’s own admissions under oath, supports her conviction for multiple uses of cocaine.  Whatever characterization the Texas Board of Nurse Examiners may have given to the court-martial does not render the applicant’s military records inaccurate.  

The JAJM evaluation is at Exhibit C.

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APPLICANT'S REVIEW OF AIR FORCE EVALUATION:

A copy of the Air Force evaluation was forwarded to the applicant on 14 April 2006 for review and comment within 30 days.  As of this date, this office has received no response.

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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 timely filed.

3.  Insufficient relevant evidence has been presented to demonstrate the existence of probable error or injustice.  The applicant’s discharge had its basis in his trial and conviction by a court-martial and she has provided no evidence showing that the sentence exceeded the maximum punishment allowable based on the offense of which she was convicted.  We feel obligated to note that, in accordance with Title 10, United States Code, Section 1552(f); actions by this Board are limited to corrections to the record to reflect actions taken by the reviewing officials and action on the sentence of the court-martial for the purpose of clemency.  There is nothing in the evidence provided which would lead us to believe that a change to the actions of any of the reviewing officials is warranted.  In view of the extreme seriousness of the misconduct she committed (i.e., drug use over an extended period of time, and the well-publicized consequences of drug use by military members), and the short period of time since her separation, we do not believe a sufficiently lengthy period of time has elapsed to warrant the exercise of clemency.  Therefore, the applicant’s request is not favorably considered.

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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 8 June 2006, under the provisions of AFI 36-2603:

The following documentary evidence was considered in connection with AFBCMR Docket Number BC-2006-00096:

	Exhibit A.  DD Form 149, dated 5 Jan 06, with attachments.
	Exhibit B.  Applicant's Master Personnel Records.
	Exhibit C.  Letter, AFLSA/JAJM, dated 31 Mar 06.
	Exhibit D.  Letter, SAF/MRBR, dated 14 Apr 06.