RECORD OF PROCEEDINGS AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS IN THE MATTER OF: DOCKET NUMBER: BC-2010-01150 COUNSEL: NONE HEARING DESIRED: NO _________________________________________________________________ APPLICANT REQUESTS THAT: Her general (under honorable conditions) discharge be upgraded to an honorable discharge. _________________________________________________________________ APPLICANT CONTENDS THAT: She used cocaine on only one occasion to gain the confidence of a local drug dealer who she was trying to implicate. She only snorted the cocaine because she feared for her life. In support of her appeal, the applicant provides copies of her discharge file. The applicant's complete submission, with attachments, is at Exhibit A. _________________________________________________________________ STATEMENT OF FACTS: The applicant is a former member of the Regular Air Force who served on active duty from 4 May 1988 thorough 28 July 1992. She was progressively promoted to the grade of senior airman (E-4) with an effective date of 4 May 1991. On 4 June 1992, the applicant was tried at a general court- martial for wrongfully using cocaine, in violation of Article 112a, Uniform Code of Military Justice (UCMJ). The applicant pled guilty to the charge. She waived her right to present her case to a panel of military members and instead, elected to be tried and sentenced by the military judge alone. The judge determined the applicant had voluntarily and knowingly used cocaine and that she did so without any legal authorization. As a result, the military judge accepted the applicant’s guilty plea and sentenced her to a reprimand. After waiving her right to clemency and to appeal, she was administratively discharged on 28 July 1992 with a general (under honorable conditions) service characterization. She served 4 years, 2 months and 25 days on active duty. _________________________________________________________________ AIR FORCE EVALUATION: AFLOA/JAJM recommends denial. JAJM indicates that under Title 10, United States Code (USC), Section 1552(f), which amended the basic corrections board legislation, the Air Force Board for Correction of Military Record’s (AFBCMR) ability to correct records related to courts-martial, is limited. Specifically, Section 1552(f)(1) permits the correction of a record to reflect actions taken by reviewing authorities under the UCMJ. Additionally, Section 1552(f)(2) permits the correction of records related to action on the sentence of courts-martial for the purpose of clemency. Apart from these two limited exceptions, the effect of Section 1552(f) is that the AFBCMR is without authority to reverse, set-aside, or otherwise expunge a court-martial conviction that occurred on or after 5 May 1950 (the effective date of the UCMJ). JAJM indicates the record shows the applicant was afforded all of the procedural rights offered by the court-martial process. The applicant pled guilty to the offense and was able to have an impartial military judge decide whether her plea was made voluntarily. During the lengthy inquiry, the applicant admitted to the judge that she had used cocaine and, importantly, that she had done so without coercion or duress. She explained she attempted to purchase drugs from a dealer - without first obtaining guidance from the Air Force Office of Special Investigations (AFOSI) or any other law enforcement agency. Before selling her any drugs; however, the dealer insisted that she first snort a line of cocaine in his presence. The applicant admitted to the court that she did not have the legal justification for using cocaine and that she was not acting as a law enforcement agent. The military judge determined that her guilty plea was voluntary and that she had wrongfully used cocaine. It is JAJM’s opinion that while clemency may be granted under Title 10 USC Section 1552 (f) (2), the applicant provides no justification for her request, and clemency is not warranted in this case. In support of her petition, the applicant makes the same argument as she did at her court-martial. In addition, she now claims that she was coerced into snorting cocaine and did so only because she feared for her life. Other than these unsubstantiated and contradictory claims, the applicant does not provide any support for the idea that she has been rehabilitated since the time of her court-martial 18 years ago. Nothing provided by the applicant erases her past criminal conduct. Upgrading her discharge is not appropriate. 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 29 October 2010 for review and comment within 30 days. As of this date, this office has received no response. _________________________________________________________________ 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 injustice. We took notice of the applicant's complete submission in judging the merits of the case; however, we 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. Furthermore, we do not find clemency is appropriate in this case since the applicant has not provided any evidence concerning her post-service activities. 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 AFBCMR Docket Number BC-2010-01150 in Executive Session on 14 December 2010, under the provisions of AFI 36-2603: The following documentary evidence was considered in connection with AFBCMR Docket Number BC-2010-01150: Exhibit A. DD Form 149, dated 25 Feb 10, w/atchs. Exhibit B. Applicant's Master Personnel Records. Exhibit C. Letter, AFLOA/JAJM, dated 1 Jul 10. Exhibit D. Letter, SAF/MRBR, dated 29 Oct 10.