. 

AIR FORCE 
IN THE MATTER OF: 

RECORD OF PROCEEDINGS 

BOARD FOR CORRECTION OF MILITARY RECORDS 

DOCKET NUMBER:  96-02123 
COUNSEL:  None 
HEARING DESIRED:  NO 

-  1 2  1998 

JUN 

APPLICANT REOUESTS THAT: 

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

APPLICANT CONTENDS THAT: 
He served honorably for over 3  years.  He received the Good Conduct 
Medal  (GCM) and the Air Force Achievement Medal  (AFAM), along with 
other awards.  He took pride  in doing his job for the Air Force. 
Then he made a stupid mistake and believes that he has paid for it. 
The nine months he served in jail should be enough punishment.  The 
bad conduct discharge is a life sentence and is much too harsh.  A 
civilian  court  would  probably  have  given him  probation.  He  was 
wrong  and  admits  that  he  was  but  a  life  sentence  is  just  too 
severe.  His  heart  and  spirit  were  broken.  He  will  never  do 
anything like that again. 
He has provided nine character references to show the Board that he 
has always tried to live his life right and that he has no  flaws 
since his discharge.  He has done community. work, including talks 
to young people about his mistake and the price you have to pay. 

The  applicant's  submission,  which  includes  character  references 
from  two  clergymen, a  city  mayor,  a  county  sheriff, a  chief  of 
police,  two  bank  presidents,  and  two  life-long  friends,  is  at 
Exhibit A. 

STATEMENT OF FACTS: 
The  applicant  enlisted  in  the  Regular  Air  Force  on  22  September 
1983  and  reenlisted on 30 April  1987.  Prior to  the  events under 
review, he was progressively promoted to the grade of senior airman 
(E-4), effective and with a date of rank of 22 January 1986 and was 
appointed a noncommissioned officer in the grade of  sergeant  ( E - 4 )  
on 1 January 1987.  He received 5  Airman Performance Reports  ( A P R s )  
for the periods ending 31 March 1984, 31 March 1985, 31 March 1986, 
25 October 1986, and 24 September 1987, in which the evaluations of 
his performance were 8, 9, 9, 9, and 4 ,   respectively. 

6 

On 7 August 1987, the applicant received a Letter of Reprimand for 
writing  4  bad  checks  totaling  $884.13  and  failing  to  make  the 
appropriate restitution after being counseled to do so. 
As  a result of  an investigation by  the AFOSI, on 26 August  1987, 
court-martial  charges were  preferred  against  the  applicant.  Two 
specifications of violations of Article 112a of the UnifoFm Code of 
Military Justice (UCMJ) were alleged.  Specifically, it was alleged 
that  the  applicant  wrongfully  used  cocaine  on  divers  occasions 
between about 1 January 1986 and 31 December 1986 and that he had, 
on  divers  occasions,  wrongfully  used  cocaine  between  about 
1 January 1987 and 30 June 1987.  The case was referred for trial 
by  general court-martial.  The general court-martial was  convened 
on 24 September 1987.  The applicant pled guilty to both the charge 
and  specifications. 
He  was  found  guilty  and  sentenced  to  be 
discharged  with  a  bad  conduct  discharge,  to  be  confined  for  18 
months, to  forfeit all  pay  and  allowances, and  to  be  reduced  in 
grade to airman basic. 
In  a  legal  review  of  the  court-martial  record,  a  staff  judge 
advocate noted  that  the  maximum  sentence allowed  for the  offense 
was  a 'dishonorable discharge,  confinement  for  10  years,  total 
forfeitures, reduction to airman basic, and a fine.  This officer 
found  that  the  file  was  legally  sufficient  and  indicated  that 
neither  the  applicant  nor  defense  counsel  had  submitted  any 
allegations  of  error  for  consideration.  As  to  clemency, it  was 
stated  that  the  applicant  had  submitted  numerous  testimonies  by 
coworkers and supervisors concerning his excellent duty performance 
and  his  good  professional  and  personal  qualities. 
Among  the 
documents included with the applicant's  request for clemency was a 
statement by  the  applicant's  defense  counsel  indicating  that  the 
applicant had extensively given his cooperation with the government 
during its investigations, had testified forthe government at the 
general court-martial of another airman, and had  identified to the 
AFOSI 12 other military members who had previously been involved in 
the use of cocaine.  Counsel cited the above, and the applicant's 
prior excellent record, to support the request for a reduction to 
the  adjudged  sentence  and  entry  into  a  rehabilitation  program. 
Based on this submission, the Staff Judge Advocate recommended that 
the  general  court-martial  authority  approve  a  sentence  which 
provided  for a bad  conduct discharge, confinement  for  14  months, 
forfeiture of  $438 per month  for 14 months and reduction in grade 
to  airman basic.  On  18 December 1987, the general  court-martial 
approving authority approved only so much of the adjudged sentence 
which  provided  for  a  bad  conduct  discharge,  14  months  of 
confinement, reduction to airman basic, and forfeiture of  $438 per 
month  for  14  months.  With  the  exception of  the  discharge, the 
approved  sentence  was  ordered  into  execution  and  the  Correction 
Facility at Lowry AFB was designated as the place of confinement. 

On 23 February 1988, the Air Force Court of Military Review  found 
the approved findings of guilty and the sentence to be  correct  in 
law and  fact and, on the basis of  the entire record, affirmed the 

2 

AFBCMR 96-02123 

same.  The applicant was advised of this fact and of his right to 
petition the United States Court of Military Appeals for a Grant of 
Review. 
On 1 June 1988, the Air Force Clemency and Parole Board considered 
and  approved  parole  for  the  applicant,  effective  as  soon  as 
possible,  contingent upon  his  participation  in  a  commusity-based 
substance  abuse  program  with  mandatory  urinalysis  screening  as 
directed  by  his  designated parole  officer.  The board  considered 
and denied clemency. 
On  16  July  1988,  orders were published  directing  the  applicant‘s 
discharge, as adjudged and approved, into execution.  On 29 August 
1988,  the  applicant  was  discharged with  a  bad  conduct  discharge 
based  on  his  court-martial  conviction.  He  was  credited  with  7 
years, 7  months and  10  days of  active duty  service.  The period 
24 September 1987  through 29 August  1988 was considered time lost 
due to confinement.  A reenlistment eligibility  (RE) code of 2M was 
assigned.  His  record  indicates he  was  entitled  to, among  other 
things, the Air Force Overseas Service Long Term Ribbon, the AFAM, 
the AFGCM, and the Air Force Outstanding Unit Award. 

AIR FORCE EVALUATION: 
The  Military  Justice  Division,  AFLSA/JAJM,  reviewed  this 
application and  recommended  denial.  After  summarizing  the  facts 
concerning  the  applicant‘s  trial  and  conviction  by  general 
court-martial,  the  applicant’s  assertions,  and  the  evidence 
provided  in  support  of  the  appeal,  JAJM  opined  that  while  the 
applicant’s  reputation  within  his  community  and  his  civic 
commitments are laudable, there is nothing in the available records 
that  makes  upgrading his  discharge  appropriate.  The  applicant’s 
actions  while  on  active  duty  facilitated  the  use  of  dangerous, 
illegal  drugs  in  the  military  community  and  his  actions  were 
totally inappropriate for a person of his rank and station in the 
Air  Force.  The applicant was well  aware of  the Air  Force policy 
concerning  dangerous  drugs  before  he  partook  of  the  illegal 
substances.  In JAJM’s opinion, there are no facts or circumstances 
that mitigate his conduct and a bad  conduct discharge remains the 
appropriate  characterization  of  his  military  service. 
JAJM 
concluded that administrative relief is not possible and there are 
no legal errors requiring corrective action (see Exhibit C). 

APPLICANT’S REVIEW OF AIR FORCE EVALUATION: 

A  copy of  the advisory opinion was  forwarded to  the applicant  on 
16 December  1996  for  review  and  comment.  As  of  this  date,  no 
response has been received by this office. 

3 

AFBCMR  96-02123 

c 

Pursuant to the Board's  request, the applicant provided  additional 
information concerning his employment and two additional supportive 
statements (see 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  probable  error or  injustice.  After 
reviewing  all  the  evidence  presented,  we  are  not  persuaded  that 
action  to upgrade  the  applicant's  discharge based  on clemency is 
appropriate.  The applicant's  discharge had its basis in his trial 
and conviction by a duly constituted military court.  We believe it 
is  significant  that  a  substantially  harsher  punishment  was 
authorized under the UCMJ  for the offenses of which the applicant 
stood convicted.  While  the  evidence provided  indicates that  the 
applicant  has  made  a  successful  post-service  adjustment ,  and 
notwithstanding his otherwise good service record, in view of  the 
extreme seriousness of  the misconduct  he  committed  (i .e. ,  the use 
and  distribution  to  others  of  an  illegal  substance), we  do  not 
believe a sufficiently lengthy period of time has elapsed since the 
applicant's discharge and the completion of his probationary period 
to warrant the exercise of clemency at the present time. 

THE BOARD DETERMINES THAT: 
The  applicant  be  notified  that  the  evidence  presented  did  not 
demonstrate the existence of probable 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 
applkation. 

The  following members of  the Board  considered this application  in 
Executive  Session on  2 7   January  1998 and  19  May  1998, under  t h e  
provisions of AFI 3 6 - 2 6 0 3 :  

Ms. Charlene M. Bradley, Panel Chair 
Mr. Richard A. Peterson, Member 
Mr. Henry Romo Jr., Member 

The following documentary evidence was considered: 

4 

AFBCMR 96-02123 

L 

L 

Exhibit 
Exhibit 
Exhibit 
Exhibit 
Exhibit 
Exhibit 

A. 
B. 
C. 
D. 
E. 
F. 

DD Form 149, dated 6 August  1996, with 
Applicantis Master Personnel Records. 
Letter, AFLSA/JAJM, dated 20 November 1 
Letter,  SAF/MIBR, dated 16 December 199 
Letter, AFBCMR, dated 23 February 1998. 
Applicant's  Statement, undated, with at 

996. 
6. 

at t achmen 

.ts . 

t ashment s 

CHARLENE M.  BRADLEY 
Panel Chair 

4 

5 

AFBCMR 9 6 - 0 2 1 2 3