RECORD OF PROCEEDINGS
AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS

IN THE MATTER OF:	DOCKET NUMBER: BC-2007-01473
		INDEX CODE:  110.00
		
		COUNSEL:  YES
		HEARING DESIRED:  YES

MANDATORY CASE COMPLETION DATE:  8 NOVEMBER 2008

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APPLICANT REQUESTS THAT:

His Bad Conduct Discharge (BCD) be upgraded to honorable.

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APPLICANT CONTENDS THAT:

He was wrongfully discharged due to a drug test of his hair.  His urine sample was clean and he did not use drugs, but was tried and convicted on evidence that was misplaced, mishandled, and did not follow a strict chain of custody.  He requests upgrade of his discharge characterization because he served for sixteen years and received three good conduct medals.

The applicant's complete submission is at Exhibit A.

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STATEMENT OF FACTS:

The applicant enlisted in the Air Force on 31 Mar 81 and was promoted up to the grade of staff sergeant.  In July 1994, he was tried by general court-martial for one charge and two specifications of dereliction of duty by failing to provide a urine sample, and one charge and one specification of wrongful use of cocaine on divers occasions, in violation on Articles 92 and 112a of the Uniformed Code of Military Justice (UCMJ).  Consistent with his pleas, he was acquitted of one specification of dereliction of duty.  Contrary to his pleas he was convicted of the remaining offenses.  On 25 Jul 94, he was sentenced to a Bad Conduct Discharge (BCD), confinement for 45 days, and reduction in grade to airman basic.  The convening authority approved the sentence as adjudged.  After completion of the appellate review process, applicant was discharged with a BCD on 18 Mar 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 BCD.  The applicant has provided no evidence of a specific error or injustice related to his prosecution or the sentence.  He simply contends that he did not use drugs and the evidence is wrong.  The appropriate forum in which to raise these types of evidentiary issues is at trial and during the appellate review process.  The applicant availed himself of all appellate rights to which he was entitled under the law.  The appellate courts found his conviction and sentence correct in fact and law.  His punishment was well within legal limits and appropriate for the offenses committed.  While clemency may be granted under 10 U.S.C., 1552(f)(2), the applicant provides no justification for his request, and clemency is not warranted in this case.  The applicant was convicted of dereliction of duty for his willful failure to provide a urine sample, which precipitated a test of his hair.  He was also convicted of wrongfully using cocaine on divers occasions.  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 (Exhibit F).  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 for dereliction of duty, and wrongful use of cocaine.  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 honorable 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.

4.  The applicant's case is adequately documented and it has not been shown that a personal appearance with or without counsel will materially add to our understanding of the issue involved.  Therefore, the request for a hearing 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 Docket Number    BC-2007-01473 in Executive Session on 25 September 2007, under the provisions of AFI 36-2603:

The following documentary evidence pertaining to Docket Number BC-2007-01473 was considered:

    Exhibit A.  DD Form 149, dated 4 May 07.
    Exhibit B.  Applicant's Master Personnel Records.
    Exhibit C.  FBI Report of Investigation.
    Exhibit D.  Memorandum, AFLOA/JAJM, dated 26 Jun 07.
    Exhibit E.  Letter, SAF/MRBR, dated 27 Jul 07.
    Exhibit F.  Letter, AFBCMR, dated 23 Aug 07.