RECORD OF PROCEEDINGS
AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS

IN THE MATTER OF:	DOCKET NUMBER: BC-2007-01370
		INDEX CODE:  110.00
		
		COUNSEL:  NONE
		HEARING DESIRED:  NO

MANDATORY CASE COMPLETION DATE:  8 NOVEMBER 2008

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APPLICANT REQUESTS THAT:

His Bad Conduct Discharge (BCD) be upgraded to an under honorable conditions (general) discharge.

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APPLICANT CONTENDS THAT:

There was no error or injustice during the processing of his case, and he accepts full responsibility for his actions that led to his general court-martial.  He was 19 years old and a young immature kid, who made very poor decisions.  He has been a productive member of society, he is now 29 years old, a father of two children, and he coaches soccer and taught Sunday school.

His children are paying for the mistake he made.  He is currently employed by the California Department of Transportation and is looking to advance his career.  An upgrade in discharge characterization will help him do that.

The applicant's complete submission is at Exhibit A.

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STATEMENT OF FACTS:

The applicant enlisted in the Air Force on 15 Feb 95 and was promoted up to the grade of airman first class.  On 16 May 97, he was tried by general court-martial.  He was charged with and convicted, in accordance with his pleas, of one charge and one specification of driving under the influence of alcohol, in violation of Article 111 of the Uniformed Code of Military Justice (UCMJ); and one charge with four specifications of wrongful use of marijuana, wrongful use of hashish, wrongful distribution of marijuana, and wrongful distribution of hashish, all on divers occasions, in violation of Article 112a, UCMJ.  He was sentenced on 16 May 97 to a Bad Conduct Discharge (BCD), confinement for 30 months, and reduction to the grade of airman basic.  The convening authority approved the sentence as adjudged with the exception of the sentence to confinement, which he reduced to 366 days.  The Air Force Court of Criminal Appeals affirmed the findings and sentence as correct in fact and law on 3 Apr 98.  On 16 Jul 98, the United States Court of Appeals for the Armed Forces denied applicant’s petition for grant of review.  After completion of the appellate review process, applicant was discharged with a BCD on 11 Sep 98.  

Pursuant to the Board’s request on 15 Aug 07, the Federal Bureau of Investigation, Clarksburg, West Virginia, provided a copy of an investigation report, which is attached at Exhibit C.

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AIR FORCE EVALUATION:

AFLOA/JAJM reviewed this application and recommends denial.  The application is untimely and there is no basis for upgrading the Bad Conduct Discharge.  The applicant has identified no error or injustice related to his prosecution or the sentence.  In fact, he specifically states that there was no error or injustice in the process.  The applicant’s sentence was well within legal limits and was an appropriate punishment for the offenses committed.  While clemency may be granted under 10 U.S.C, 1552(f)(2), it is not warranted in this case.  The applicant was convicted of numerous drug offenses which included not just wrongful use but wrongful distribution.  A BCD was an appropriate sentence and properly characterizes his service.

The AFLOA/JAJM complete evaluation is at Exhibit D.

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APPLICANT'S REVIEW OF AIR FORCE EVALUATION:

On 27 Jul 07, a copy of the Air Force evaluation was forwarded to the applicant for review and comment within 30 days.  To date, a response has not been received.

On 23 Aug 07, a copy of the FBI report was forwarded to the applicant for review/comment.  To date, a response has not been received.

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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 submission was thoroughly reviewed, and his contentions were duly noted.  However, we do not find his assertions, in and of themselves, sufficiently persuasive to override the rationale provided by the Associate Chief, Military Justice Division.  The evidence of record indicates the applicant was convicted by general court-martial of wrongful use of marijuana, wrongful use of hashish, distribution of marijuana, and distribution of hashish.  No evidence has been submitted which would lead us to believe that the characterization of his service was improper.  In addition, in view of the contents of the FBI Identification Record we are not persuaded that the characterization of the applicant’s discharge warrants an upgrade to general on the basis of clemency.  Having found no error or injustice with regard to the actions that occurred while the applicant was a military member, we conclude that no basis exists to grant favorable action on his request.

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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-2007-01370 in Executive Session on 25 September 2007, under the provisions of AFI 36-2603:

The following documentary evidence pertaining to Docket Number BC-2007-01370 was considered:

    Exhibit A.  DD Form 149, dated 23 Apr 07, w/atch.
    Exhibit B.  Applicant's Master Personnel Records.
    Exhibit C.  FBI Report of Investigation.
    Exhibit D.  Memorandum, AFLOA/JAJM, dated 24 Jun 07.
    Exhibit E.  Letter, SAF/MRBR, dated 27 Jul 07.
    Exhibit F.  Letter, AFBCMR, dated 23 Aug 07.