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AF | BCMR | CY1999 | 9801127
Original file (9801127.doc) Auto-classification: Denied

                       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 Davis Monthan AFB.  The sample was forwarded to Brooks  AFB
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 Davis Monthan AFB 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.  108,
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


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