RECORD OF PROCEEDINGS AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS IN THE MATTER OF: DOCKET NUMBER: BC-2010-00873 COUNSEL: NONE HEARING DESIRED: NO _________________________________________________________________ APPLICANT REQUESTS THAT: His bad conduct discharge be upgraded. _________________________________________________________________ APPLICANT CONTENDS THAT: The evidence in his case was overturned in another’s case due to problems with the civilian testing facility and its practices. In support of his request, the applicant provides a copy of the U.S. v. Steen court opinion. The applicant's complete submission, with attachment, is at Exhibit A. _________________________________________________________________ STATEMENT OF FACTS: The applicant entered the Regular Air Force on 11 Apr 96. He is credited with 9 years, 11 months, and 21 days of active service. The applicant was seen ingesting an Ecstasy pill and smoking marijuana. After being advised of his rights, he pled guilty to ingesting one Ecstasy pill. He was eventually charged with two specifications of using controlled substances. In January 2002, the applicant, then a senior airman, was tried and found guilty by a general court-martial for wrongfully using controlled substances. He was sentenced to a bad conduct discharge, hard labor without confinement for 60 days, reduction to the grade of airman, and forfeitures of all pay and allowances. A request for post-service information was sent to the applicant on 8 July 2010 (Exhibit F). As of this date, no response has been received. Other relevant facts are contained in the AFLOA/JAJM opinion, which is at Exhibit C. _________________________________________________________________ AIR FORCE EVALUATION: AFLOA/JAJM recommends denial. JAJM states clemency is unwarranted in this case as the applicant has not identified an error or injustice related to his prosecution or sentence. Further, U.S. v. Steen does not apply to the applicant. In Steen, the Government’s case rested primarily on the results of hair testing performed by a civilian forensics laboratory. Before trial, the individual’s defense counsel asked the Government to provide the “results of any and all quality checks and certifications done regarding the lab.” The Government failed to submit a report from a 1999 investigation that found the lab lacking in several critical areas. Based on this error, the Air Force Court of Criminal Appeals overturned the individual’s conviction and ordered a new trial. The applicant’s case differs significantly, as the Government’s case against him consisted solely on his confession and the eyewitness account of his misconduct. In fact, in the applicant’s trial, the Government did not present the results of any drug testing. Further, it would be offensive to all those who served honorably to extend the same benefits to someone who committed a crime such as the applicant’s while on active duty. The complete AFLOA/JAJM evaluation is at Exhibit C. _________________________________________________________________ APPLICANT'S REVIEW OF AIR FORCE EVALUATION: The applicant states he is not a troublemaker and had never been in trouble before the incident nor has he been in trouble with the law since his discharge. He states he was intimidated and panicked when he was stuck in a little room with two officers and accused of criminal activity. Additionally, he was told he would not be able to leave until he admitted to doing wrong and further, they knew he had smoked marijuana. He states it never happened and he did not know what to do. He was told if he gave a statement things would go easier for him; therefore, he did exactly that. The AFLOA/JAJM opinion is wrong with regard to his admission of smoking marijuana within the charged timeframe. He states his statement was from a year prior. The dates for which he was charged were for dates given by another airman who claimed he had seen all the drug activity against a number of airmen. That individual’s testimony only held up against him and Steen; however, Steen’s was overturned. With regard to his ecstasy charge, he pled guilty at the advice of his counsel. His counsel told him to throw himself on the mercy of the court or go to jail. The applicant states he had affairs to handle which could not be taken care of if he were away for a year or more in prison. He states he is now a professional, married with two children, and the discharge is affecting his life. He is currently unemployed and unable to secure a number of jobs because they require clearances. He desires an upgrade of his discharge in order to be a provider for his family. The applicant's complete response is at Exhibit E. _________________________________________________________________ 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. While the applicant states his testimony was forced, he had a clean urinalysis, and he pled guilty to the use of Ecstasy at the advice of his counsel, evidence of this was not provided. Further, we note the applicant’s case differs from U.S. v. Steen and; therefore, agree with the opinion and recommendation of the Air Force office of primary responsibility and adopt its rationale as the basis for our conclusion that the applicant has not been the victim of an error or injustice. Therefore, in the absence of evidence to the contrary, we find no basis to recommend granting the relief sought in 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 issues 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-2010-00873 in Executive Session on 24 August 2010, under the provisions of AFI 36-2603: The following documentary evidence was considered: Exhibit A. DD Form 149, dated 1 Mar 10, w/atch. Exhibit B. Applicant's Master Personnel Records. Exhibit C. Letter, AFLOA/JAJM, dated 17 May 10. Exhibit D. Letter, SAF/MRBR, dated 4 Jun 10. Exhibit E. Letter, Applicant, dated 12 Jun 10. Exhibit F. Letter, AFBCMR, dated 9 Jul 10, w/atch.