RECORD OF PROCEEDINGS AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS IN THE MATTER OF: DOCKET NUMBER: BC-2008-03450 INDEX CODE: 110.00 XXXXXXX COUNSEL: NONE HEARING DESIRED: YES ________________________________________________________________ APPLICANT REQUESTS THAT: His bad conduct discharge (BCD) be upgraded to a general (under honorable conditions) discharge. ________________________________________________________________ APPLICANT CONTENDS THAT: His appeal process was not followed through properly and if it had been done correctly, he would have been cleared of charges. Applicant’s complete submission is at Exhibit A. ________________________________________________________________ STATEMENT OF FACTS: Applicant enlisted in the Regular Air Force on 4 January 1990 and was progressively promoted to the grade of airman first class. On 30 April 1992, applicant was tried and convicted by a general court-martial for three specifications involving anabolic steroids. The applicant pled not guilty to all the charges. The military members found the applicant guilty of wrongful possession of a controlled substance. He was sentenced to a bad conduct discharge and reduction to airman basic. The applicant submitted matters to the convening authority, asking that the BCD discharge be disapproved. His defense counsel argued that the members' verdict was inconsistent since they found him guilty of wrongful possession, but not guilty of wrongful use or wrongful introduction onto the base. Defense counsel alleged that the members may have found the applicant guilty of that specification due to an incomplete understanding of the concept of wrongfulness with respect to the possession specification in the case. On 7 July 1992, the convening authority approved the adjudged sentence. On 13 January 1994, the Air Force Court of Military Review affirmed the findings and sentence. On 16 June 1994, the United States Court of Appeals denied the applicant's petition for review, making the findings and sentence in his case final. The applicant was discharged with a BCD on 12 October 1994. He was credited with 4 years, 9 In response to the Board's request, the Federal Bureau of Investigation (FBI) provided a copy of an investigative report (see Exhibit C). On 9 February 2009, a request for post-service information and the FBI report were forwarded to the applicant for response within 30 days (see Exhibit F). The applicant has not responded. ________________________________________________________________ AIR FORCE EVALUATION: AFLOA/JAJM reviewed this application and recommended denial. The use of illegal drugs was and continues to be a serious crime. The maximum sentence the applicant faced at the time of his trial was a dishonorable discharge, confinement for 10 years, and forfeiture of all pay and allowances. His sentence of a bad conduct discharge, confinement for 18 months, and forfeiture of all pay and allowances was well within that maximum. Applicant has provided no evidence of a clear error or injustice related to the sentence. Therefore, there is no reason required by law to grant the relief requested. JAJM’s complete evaluation is at Exhibit D. ________________________________________________________________ APPLICANT'S REVIEW OF AIR FORCE EVALUATION: On 9 February 2009, a copy of the Air Force evaluation was forwarded to the applicant for review and comment within 30 days. To date, a reply has not been received by this office (Exhibit F). ________________________________________________________________ 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 note that this Board is without authority to reverse, set aside, or otherwise expunge a court-martial conviction. Rather, 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. We also find no evidence which indicates that the applicant’s service characterization, which had its basis in his conviction by general court-martial and was a part of the sentence of the military court, was improper or that it exceeded the limitations set forth in the Uniform Code of Military Justice (UCMJ). We have considered the applicant's overall quality of service, the general court-martial conviction which precipitated the discharge, and the seriousness of the offense of which convicted. Based on the evidence of record, we cannot conclude that clemency is warranted. Moreover, it appears that he has not overcome the behavior traits which caused the discharge based on the report provided by the FBI. In view of the available evidence of record, we find no basis upon which to favorably consider this application. 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. ________________________________________________________________ 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. ________________________________________________________________ The following members of the Board considered Docket Number BC- 2008-03450 in Executive Session on 11 March 2006, under the provisions of AFI 36-2603: Chair Member Member The following documentary evidence was considered in connection with AFBCMR Docket Number BC-2008-03450: Exhibit A. DD Form 149, dated 5 Sep 08. Exhibit B. Applicant's Master Personnel Records. Exhibit C. FBI Report of Investigation. Exhibit D. Letter, AFLOA/JAJM, dated 21 Oct 08. Exhibit E. Letter, SAF/MRBR, dated 9 Jan 09. Exhibit F. Letter, AFBCMR, dated 9 Feb 09.