RECORD OF PROCEEDINGS AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS IN THE MATTER OF: DOCKET NUMBER: BC-2010-00767 COUNSEL: NONE HEARING DESIRED: NO _________________________________________________________________ APPLICANT REQUESTS THAT: It appears the applicant is asking for his court-martial conviction to be expunged from his records. _________________________________________________________________ APPLICANT CONTENDS THAT: He was never charged with possession of Schedule I, II, or III Drugs. He suffered from a number of mental disorders while in the military and the medication Zoloft worsened his disorders. The wrongful use of marijuana should be expunged from his record because the medicine affected his behavior which caused him to be court-martialed. In support of his request, the applicant provides copies of his court agency charge sheet, Special Court-Martial Order No. 5, and his DD Form 214, Certificate of Release or Discharge from Active Duty. The applicant’s complete submission, with attachments, is at Exhibit A. _________________________________________________________________ STATEMENT OF FACTS: The applicant entered the Air Force on 21 July 1999 and was progressively promoted to the grade of senior airman. On 15 March 2007, the applicant was tried by a Special Court- Martial. The bases for the commander’s recommendation were that in October 2006 and December 2006, the applicant’s urine tests returned positive indicating the use of marijuana. A subsequent investigation showed the applicant had used marijuana eight times between October and December 2006. In addition, the applicant was accused of being absent without leave (AWOL) by failing to go to a required medical appointment. He was eventually charged with one specification of absence without leave in violation of Article 86, Uniform Code of Military Justice (UCMJ) and one specification of wrongful use of marijuana, in violation of Article 112a, UCMJ. On January 2007, the applicant’s defense counsel requested a sanity board to conduct an evaluation based on his apparent depression, anxiety and parasomnia disorders. On 12 March 2007, the sanity board concluded that at the time of the applicant’s alleged offenses, he suffered from severe mental disorders but was able to appreciate the nature and wrongfulness of his conduct. The evaluation further determined the applicant had sufficient mental capacity to understand the nature of the court- martial proceedings and to cooperate intelligently in his own defense. Pursuant to the pretrial agreement, the applicant pled guilty to wrongfully using marijuana and not guilty to AWOL. The charge of AWOL was dismissed. The military judge found the applicant guilty of wrongfully using marijuana and sentenced him to four months confinement and reduction to airman basic. On 12 April 2007, the convening authority approved the findings and sentence as adjudged. A judge advocate reviewed the applicant’s conviction and found no legal or factual errors. On 13 April 2007, the commander notified the member that he was recommending he be administratively discharged under the provisions of AFI 36- 3208, Administrative Separation of Airmen, Misconduct – Pattern of Misconduct – Conduct Prejudicial to Good Order and Discipline and Drug Abuse, with a general service characterization. The applicant acknowledged receipt of the notification of discharge and waived his right for a board hearing. On 29 June 2007, the applicant was discharged with a general service characterization after completing of 4 years, 9 months and 10 days of total active service. _________________________________________________________________ AIR FORCE EVALUATION: AFLOA/JAJM recommends denial. JAJM states the applicant was given a full medical evaluation of his mental disorders by a sanity board ordered by the military judge. The sanity board concluded the applicant had sufficient mental capacity to understand the nature of the proceedings and to cooperate in his own defense. The Record of Trial indicated no error in the processing of the applicant’s case. He freely entered into a pretrial agreement and pled guilty to the charge and specification of wrongful use of marijuana in exchange for no confinement in excess of six months and to defer and/or waive all adjudged forfeitures of pay. He pled guilty to the agreed upon pretrial hearing arrangement. Prior to accepting the applicant’s guilty plea, the judge ensured he understood the meaning and effect of his plea and the maximum punishment he could receive from the court. After the judge explained the elements and definitions of the offense, the applicant explained in his own words why he believed he was guilty. The military judge considered all the factors when imposing the applicant’s sentence. The sentence was well below the maximum possible sentence of a bad conduct discharge, confinement for one year, forfeitures of two-thirds pay per month for one year and reduction to airman basic. The applicant’s personal history does not constitute an error or injustice in the court-martial or post-trial process. The applicant admitted his crime during his court-martial and all of his rights during the process were observed without exception. Based on the documents submitted by the applicant in support of his appeal, he was convicted of only one offense of wrongful use of marijuana and no other offense. While clemency may be granted under 10 U.S.C., Section 1552(f)(2), the applicant has not presented any new information that was not available during the trial which supports the Board granting clemency and undoing the decisions of the military judge and the convening authority made 35 months ago. The applicant has not provided any support for the idea he turned his life around or he has made a difference in his community – factors that might warrant some consideration for clemency. The complete JAJM evaluation is at Exhibit C. _________________________________________________________________ APPLICANT'S REVIEW OF AIR FORCE EVALUATION: A copy of the Air Force evaluation was forwarded to the applicant on 16 April 2010, for review and comment within 30 days. As of this date, this office has received no response (Exhibit D). _________________________________________________________________ THE BOARD CONCLUDES THAT: 1. The applicant has exhausted all remedies provided by existing law or regulations. 2. The application was timely filed. 3. Insufficient relevant evidence has been presented to demonstrate the existence of an error or injustice. As noted by AFLOA/JAJM, actions by this Board related to courts-martial are limited to corrections on the sentence for the purpose of clemency or to correct the record to reflect actions taken by reviewing authorities under the Uniform Code of Military Justice. However, in our view the applicant has failed to present sufficient evidence that would warrant relief from the Board. Therefore, we agree with AFLOA/JAJM and adopt their rationale as the basis for our conclusion that the applicant has not been the victim of an error or injustice regarding his court-martial. Based on the above, we find no evidence of error or injustice; therefore, the applicant’s request 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- 2010-00767 in Executive Session on 10 June 2010, under the provisions of AFI 36-2603: The following documentary evidence was considered: Exhibit A. DD Form 149, dated 21 Jan 10, w/atchs. Exhibit B. Applicant's Master Personnel Records. Exhibit C. Letter, AFLOA/JAJM, dated 24 Mar 10. Exhibit D. Letter, SAF/MRBR, dated 16 Apr 10.