RECORD OF PROCEEDINGS
             AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS


IN THE MATTER OF:                       DOCKET NUMBER:  98-01127

                                       INDEX CODE:  110.00

                                        COUNSEL:  NONE

                                        HEARING DESIRED:  NO

APPLICANT REQUESTS THAT:

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

APPLICANT CONTENDS THAT:

His bad conduct discharge was inequitable because it was based on one
isolated incident in 147 months of service with no other adverse action.

In support of the appeal, applicant submits a personal statement, and
character reference statements.

Applicant's complete submission is attached at Exhibit A.

STATEMENT OF FACTS:

On 1 September 1989, the applicant enlisted in the Regular Air Force in the
grade of senior airman.

On 1 March 1992, applicant was promoted to the grade of staff sergeant.

On 29 October 1992, the applicant provided a urine sample during a random
urinalysis at xxxx xxx xxxx.  The sample was forwarded to xxxx  xxx
Laboratory for testing and tested positive for benzoylecgonine.
Benzoylecgonine is a chemical by-product of cocaine.  The applicant was
tried by a general court-martial xxx xxxxx xxx xxx on 11 & 12 March 1993.
The court-martial panel found the applicant guilty and sentenced him to a
BCD, 9 months confinement, and reduction in grade to airman basic.

On 31 March 1995, while serving in the grade of airman basic, he was
discharged from the Air Force by General Court-Martial Order No. xxx, with
a Bad Conduct Discharge.  He served 10 years, 10 months and 27 days.  He
had 169 days of lost time.

Pursuant to the Board’s request, the Federal Bureau of Investigation,
Washington, D.C., provided an investigation report which is attached at
Exhibit C.

AIR FORCE EVALUATION:

The Associate Chief, Military Justice Division, AFLSA/JAJM, reviewed the
application and states that drug use in the military is not tolerated.
Cocaine use is a serious offense.  At the time of the offense for which the
applicant was court-martialed, he was a staff sergeant with over nine years
of active service.  The applicant’s status as a noncommissioned officer and
his experience on active duty make his wrongful cocaine use all the more
aggravating.  His conviction was affirmed by the Air Force Court of
Criminal Appeals.  No injustice occurred during the applicant’s court-
martial.  The applicant admits that he committed the offense for which he
was court-martialed.  Although, the applicant had a clean record prior to
his court-martial conviction, the BCD imposed by the court-martial panel
was appropriate given the serious nature of the offense committed.  They
state, while the applicant should be commended for turning his life around,
there is no substantive justification for upgrading his BCD to a general
discharge.  Therefore, they recommend denial of applicant’s request.

A complete copy of the evaluation is attached at Exhibit D.

APPLICANT'S REVIEW OF AIR FORCE EVALUATION:

On 5 October 1998, 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.

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.    We find no impropriety in the characterization of applicant’s
discharge.  It appears that responsible officials applied appropriate
standards in effecting the separation, and we do not find persuasive
evidence that pertinent regulations were violated or that applicant was not
afforded all the rights to which entitled at the time of discharge.  We
conclude, therefore, that the discharge proceedings were proper and
characterization of the discharge was appropriate to the existing
circumstances.

4.  We also find insufficient evidence to warrant a recommendation that the
discharge be upgraded on the basis of clemency.  We have considered
applicant’s overall quality of service, the events which precipitated the
discharge, and available evidence related to post-service activities and
accomplishments.  On balance, we do not believe that clemency is warranted.

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 application.

The following members of the Board considered this application in Executive
Session on 26 January 1999, under the provisions of AFI 36-2603:

                 Ms. Rita S. Looney, Panel Chair
                 Mr. Terry A. Yonkers, Member
                 Ms. Patricia D. Vestal, Member
                 Ms. Phyllis L. Spence, Examiner (without vote)

The following documentary evidence was considered:

      Exhibit A. DD Form 149, dated 12 May 98, w/atchs.
      Exhibit B. Applicant's Master Personnel Records.
      Exhibit C. FBI Report.
      Exhibit D. Letter, AFLSA/JAJM, dated 15 Sep 98.
      Exhibit E. Letter, AFBCMR, dated 5 Oct 98.




                                        RITA S. LOONEY
                             Panel Chair


                                             15 SEP 1998

MEMORANDUMFORAFBCMR

FROM: AFLSA/JAJM
       112 Luke Avenue, Room 343
       BoIling AFB, DC 20332,-8000


SUBJECT: Correction of Military Records of – xxxx xxx xxxx

      Applicant's request: In an application dated 12 May 98, the applicant
requests that his bad conduct discharge (BCD) be upgraded to a general
(uuder honorable conditions) discharge. On 12 Mar 93, the applicant was
convicted and sentenced at a general court-martial of one specification of
wrongfu1 use of cocaine in violation of Article 112a;UCMJ. He was sentenced
to a BCD, 9 month's confinement, and reduction to airman basic. On 29 Nov
94, the applicant's conviction was affirmed on appeal by the United States
Air Force Court of Criminal Appeals.  His BCD was executed on 31 Mar 95.
The application was not submitted within the three year statute of
limitations provided by 10 U.S.C. 1552(b).


      Facts of military justice action: On 29 Oct 92, the applicant (then a
 Staff Sergeant) provided a urine sample during a random urinalysis at xxx
 xxx xxxx. The sample was forwarded to xxxx xxx  xxx Laboratory for testing
 and tested positive for benzoylecgonine. Benzoylecgonine is a chemical by-
 product of cocaine. The applicant was tried by a general court-martial at
 xxxx xxx xxxx on 11-12 Mar 93. The Courtmartial panel found the applicant
 guilty and sentenced him to a BCD, 9 months confinement, and reduction to
 Airman Basic.

      Applicant's contentions: The applicant alleges that his bad conduct
discharge was inequitable because it was based on one isolated incident
during the his 147 months of service.  The applicant indicates he had no
other adverse actions in his military record. He requests that his BCD be
upgraded to a general (uuder honorable conditions) discharge, The applicant
has attached a written statement to his DD Form 149. In his letter, the
applicant states that his mother passed away in Mar 92. She meant the world
to him and after her death, the applicant became depressed. The applicant
states he took the path of alcohol and drug use to deal with the pain. He
plead innocent to his court-martial charges in hopes of salvaging his
career. The applicant states that after being convicted, the applicant got
the help he needed. He is proud to say that although he lost his dream and
was discharged from the military, he found himself again.  The applicant
blames no one but himself for his troubles and is crying to pay back his
debt to society every day. The applicant is asking for a second chance so
that he can continue to grow and help out his commuuity. He also seeks
better employment opportunities so that he may better support his wife and
three children. The applicant asks that the Board consider his request as
well as his military record when making a decision.

      The applicant has also provided statements from his brother, xxxx xxx
xxxx, his friend, xxxx xx xxxx and xxxx xxx xxxx, the commander of xxxx
xxxx xxxxx, xxxx 2. xxxx xxxxx states that his brother has been punished
for his crime. He indicates that his brother is now a father of three
children and a pillar in his commuuity.  Xxxx xxxxx states that upgrading
the applicant's records will remove the discriminating stigma associated
with a BCD and will restore his brother's hopes of becoming a productive
and positive member of society.  Xxxx xxxx claims his brother is completely
reformed and drug free.  Xxx xxxx has known the applicant for over seven
years. She describes him as courteous, conscientious, caring and highly
motivated.  Xxx Xxxx indicates that the applicant has learned great lessons
from his past mistake. Xxx xxxx has known the applicant since 1989. He
contends the applicant is now on the right path and has paid his debt to
society. He indicates that the applicant has worked full-time since being
discharged from the military.  Xxx xxxx describes the applicant as a hard
working youug man who is trying to provide for his family and is much
deserving of a second chance.

      Discussion:  Drug use in the military is not tolerated. Cocaine use is
a serious offense.
At the time of the offense for which the applicant was court-martialed, he
was a Staff Sergeant with over nine years of active duty service. The
applicant's status as noncommissioned officer and his experience on active
duty make his wrongful cocaine use all the more aggravating. His conviction
was affirmed by the Air Force Court of Criminal Appeals. No injustice
occurred during the applicant's court-martial. The applicant admits that he
committed the offense for which he was court-martialed. Although, the
applicant had a clean record prior to his courtmartial conviction, the BCD
imposed by the court-martial panel was appropriate given the serious nature
of the offense committed. While the applicant should be commended for
turning his life around, there is no substantive justification for
upgrading his BCD to a general discharge.  However, it as the Board's
discretion to upgrade the applicant's discharge as a matter in equity.

      Recommendation: After reviewing the available records, I recommend
denial of the applicant's request to upgrade his discharge to general
(under honorable conditions).  No legal errors occurred during the
applicant's court-martial which require correction. The Board may decide,
as matter in equity, to upgrade the applicant's discharge, however, there
is no substantive justification for doing so. The Board should note the
statute of limitations has also passed. I recommend the Board interpose the
statute of limitations or, if the statute of limitations is waived, the
Board may use its equitable discretion when deciding whether or not to
upgrade the applicant's discharge.



                                        Associate Chief, Military Justice
                                  Division
                                   Air Force Legal Services Agency

Attachment:
Case File