RECORD OF PROCEEDINGS
AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS

IN THE MATTER OF:	DOCKET NUMBER:  BC-2004-02420
		INDEX CODE:  110.00

		COUNSEL:  NONE

		HEARING DESIRED:  NO

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APPLICANT REQUESTS THAT:

His bad conduct discharge be upgraded to a general (under honorable conditions) discharge.

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APPLICANT CONTENDS THAT:

It has been 15 years since his discharge and he desires his bad conduct discharge upgraded.

Applicant’s complete submission is at Exhibit A.

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STATEMENT OF FACTS:

On 21 October 1985, the applicant enlisted in the Regular Air Force for a period of four years.

On 6 February 1987, the applicant was notified of his commander’s intent to impose nonjudicial punishment upon him for the following:  The applicant having knowledge of a lawful order not to consume alcoholic beverages, an order which it was his duty to obey, did, at Air Force Base, California, on or about 31 January 1987, failed to obey the same.  Further investigation had disclosed he was, at Air Force Base, California, on or about 31 January 1987, disorderly.

After consulting with counsel, applicant waived his right to a trial by court-martial, submitted a written presentation in his behalf and did not request a personal appearance.

On 19 February 1987, the applicant’s commander found him guilty.  The complete Article 15 documentation is not available for review; therefore, his punishment cannot be determined.

The applicant did not appeal the punishment and the Article 15 was filed in his Unfavorable Information File (UIF).

On 26 July 1988, the applicant was notified of his commander’s intent to impose nonjudicial punishment upon him for the following:  He did, at Air Force Base, California, on or about 16 July 1988, without authority, fail to go at the time prescribed to his appointed place of duty, to wit Building 871, Fitness Center.

After consulting with counsel, the applicant waived his right to a trial by court-martial, did not request to make a personal appearance and did submit a written presentation in his behalf.

On 4 August 1988, he was found guilty by his commander who imposed the following punishment: Reduction in grade from airman first class to airman basic, with a new date of rank of 4 August 1988.

The applicant did not appeal the punishment and the Article 15 was filed in his UIF.

On 4 October 1988, the applicant was notified of his commander’s intent to impose nonjudicial punishment upon him for the following:  He did, on or about 24 September 1988, without authority, failed to go at the time prescribed to his appointed place of duty, to wit Building 871.

After consulting with counsel, the applicant waived his right to a trial by court-martial, did not request to make a personal appearance and did submit a written presentation in his behalf.

On 7 October 1988, he was found guilty by his commander who imposed the following punishment: A forfeiture of $50.00 pay per month for two months.

The applicant did not appeal the punishment and the Article 15 was filed in his Unfavorable Information File (UIF).

On 27 January 1989, the applicant was convicted by a general court-martial for the following offense:

Charge:  Violation of the Uniform Code of Military Justice, Article 112a.

Specification:  In that the applicant did on divers occasions, from on or about 1 May 1987 to on or about 31 December 1987, wrongfully use cocaine.

The applicant was found guilty of the specification and charge.

He was sentenced to a bad conduct discharge, confinement for nine months, and a forfeiture of $400.00 pay per month for nine months.

The sentence was adjudged on 20 December 1988.

On 15 September 1989, the applicant was discharged with a bad conduct discharge in the grade of airman basic, under the provisions of General Court-Martial Order Number 353.  He served three years, four months, and eight days of total active duty service with lost time between 2 December 1988 and 6 July 1989.

Pursuant to the Board's request, the Federal Bureau of Investigation, Clarksburg, West Virginia, provided an arrest record which is at Exhibit C.

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AIR FORCE EVALUATION:

AFLSA/JAJM recommended denial indicating the applicant is not contending a specific error had occurred which requires the correction of his court-martial record and there is no indication in the record of such an error.  While clemency is an option, there is no reason for the Board to exercise clemency in this case.  The military judge and the Air Force Court of Military Review were convinced of the applicant’s guilt beyond a reasonable doubt.  His sentence is appropriate.  The applicant did not serve his enlistment honorably.  It would be unjust to change the characterization to one that hundreds of thousands of airmen, who have served honorably, also carry.  The applicant presents no evidence to warrant upgrading the bad conduct discharge, nor has he demonstrated an equitable basis for relief.  In addition, his request, made over fifteen years after his conviction, is untimely.

The evaluation is at Exhibit D.

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APPLICANT'S REVIEW OF AIR FORCE EVALUATION:

On 10 November 2004, a copy of the Air Force evaluation was forwarded to the applicant for review and response within 30 days.  As of this date, no response has been received by this office.

On 16 December 2004, the Board staff requested the applicant provide post-service documentation within 14 days (Exhibit F) and on 23 December 2004, the Board provided the applicant the opportunity to respond to the FBI report within 14 days (Exhibit G).  As of this date, no response has been received by this office.

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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 an error or an injustice.  After thoroughly reviewing the evidence of record, we find no evidence to show that the applicant’s discharge as a result of his conviction by court-martial was erroneous or unjust.  While the applicant believes his bad conduct discharge should be upgraded, we note the military judge determined the bad conduct discharge was an appropriate consequence which accurately described the applicant’s military service and his misconduct and the convening authority approved the bad conduct discharge.  The Board notes the applicant’s FBI report contains three entries (2 April 1993, 1 August 1993, and 8 February 1999) after his discharge from the Air Force; therefore, it appears his misconduct continued following his discharge.  In view of the foregoing, we agree with the opinion and recommendation of the Military Justice Division and adopt the rationale expressed as the basis for our decision that the applicant has failed to sustain his burden that he has suffered either an error or an injustice.  Therefore, based on the evidence of record, we find no compelling basis to recommend granting the relief sought.

4.	Although the applicant did not specifically request consideration based on clemency, we also find insufficient evidence to warrant a recommendation the discharge be upgraded on that basis.

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THE BOARD DETERMINES THAT:

The applicant be notified the evidence presented did not demonstrate the existence of an error or an injustice; the application was denied without a personal appearance; and 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 AFBCMR Docket Number BC-2004-02420 in Executive Session on 25 January 2005, under the provisions of AFI 36-2603:

The following documentary evidence was considered:

   Exhibit A.  DD Form 149, dated 27 July 2004.
   Exhibit B.  Applicant’s Master Personnel Records.
   Exhibit C.  FBI Report.
   Exhibit D.  Letter, AFLSA/JAJM, 4 November 2004.
   Exhibit E.  Letter, SAF/MRBR, dated 10 November 2004.
   Exhibit F.  Letter, AFBCMR, dated 16 December 2004.
   Exhibit G.  Letter, AFBCMR, dated 23 December 2004.