RECORD OF PROCEEDINGS
         AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS


IN THE MATTER OF:      DOCKET NUMBER:  98-01646
                 INDEX CODE:  110

                 COUNSEL:  NONE

                 HEARING DESIRED:  YES

_________________________________________________________________

APPLICANT REQUESTS THAT:

1.  His Bad Conduct  Discharge  (BCD)  be  upgraded  to  an  honorable
discharge.

2.  His Court-Martial conviction be sealed or set aside.

_________________________________________________________________

APPLICANT CONTENDS THAT:

This one incident remains an isolated action in his life and  was  the
only unfavorable matter during his entire time  of  military  service.
The reason for this request is to be allowed greater opportunities for
future employment and to be allowed to  put  the  matter  behind  him.
Applicant states  that  since  his  court-martial,  he  has  conducted
himself with the utmost integrity  and  is  a  law-abiding  member  of
society.

In support of his  application,  he  submits  college  transcripts,  a
school  district  conviction  report,  and  personal  and   employment
references.

Applicant’s submission is attached at Exhibit A.

_________________________________________________________________

STATEMENT OF FACTS:

Applicant enlisted in the Regular Air Force on 11 October 1990  for  a
period of four (4) years in the grade of airman basic.

While serving in the grade of airman first class,  the  applicant  was
convicted by a General Court-Martial at F. E. Warren Air  Force  Base,
Wyoming, for violation of the following offense:

    Charge: Article 112a.  Specification:  Did, at Francis  E.  Warren
Air Force Base, Wyoming, on or  about  6  June  1992,  wrongfully  use
lysergic  acid  diethylamide.   Applicant  plead  Not  Guilty.   Found
Guilty.

Applicant was sentenced  to  a  BCD,  confinement  for  eight  months,
forfeiture of all pay and allowances, and reduction to  airman  basic.
The sentence was adjudged on 12 November 1992.   On  21 January  1993,
the Convening Authority approved  the  sentence  except  for  the  bad
conduct discharge.  The applicant was confined to military confinement
on 12 November 1992 and was released from confinement on 20  May  1993
and placed on appellate review leave pending completion  of  appellate
review of his case.

On 5 April 1994, the Air Force Court of Military Review (COMR)  stated
that the findings of guilty and the sentence  were  affirmed.   On  28
September 1994, per General Court-Martial Order No. 344, the  sentence
was affirmed and the bad conduct discharge ordered executed.

Applicant was discharged with a BCD  on  20  October  1994  under  the
provisions of Department of the Air Force General Court-Martial  Order
#344 (Conviction by Court-Martial (Other Than Desertion)) in the grade
of airman basic.  He served 4 years and 10 days of  military  service,
with 190 days of lost time.

_________________________________________________________________

AIR FORCE EVALUATION:

The Associate  Chief,  Military  Justice  Division,  Air  Force  Legal
Services Agency, AFLSA/JAJM, states that no clear  injustice  occurred
during the applicant’s court-martial and the applicant  alleges  none.
The applicant’s court-martial conviction cannot be set aside since  no
injustice has resulted.  In addition, the military justice system does
not seal court-martial convictions.  The Board  has  no  authority  to
grant the applicant’s request to set aside  or  seal  the  applicant’s
court-martial conviction.

The Board does have the power to upgrade the applicant’s  bad  conduct
discharge.  However, the applicant does not dispute that he  committed
the offense for which he was convicted.  Drug use is not tolerated  in
the military.  While the applicant should be commended for turning his
life around, there is no substantive justification for  upgrading  his
BCD to an honorable discharge.  The Board has that power as  a  matter
of equity.

The Board should note the statute  of  limitations  has  also  passed.
Recommend the Board interpose the statute of limitations, or, deny the
request to seal and/or set aside his court-martial conviction.

A complete copy of the Air Force evaluation is attached at Exhibit  C.


_________________________________________________________________

APPLICANT’S REVIEW OF AIR FORCE EVALUATION:

A copy of the Air Force evaluation was forwarded to the  applicant  on
24 August 1998 for review and response.  Applicant states, in summary,
that he requests that the question of equity and justice  be  a  focal
point.  This incident during his time in  the  Air  Force  remains  an
unreliable issue upon which to judge his future abilities.

A copy of the applicant’s response, with attachments, is  attached  at
Exhibit E.

_________________________________________________________________

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 a thorough review
of the evidence of record  and  applicant’s  submission,  we  are  not
persuaded  that  the  applicant’s  discharge  should  be  upgraded  to
honorable.  His contentions are duly noted; however, we  do  not  find
these assertions, in and by  themselves,  sufficiently  persuasive  to
override the rationale provided by the Air Force.  Further,  as  noted
by the Associate Chief, Military Justice Division, this Board  has  no
authority to grant the applicant’s request to set aside or to  seal  a
court-martial conviction.  Furthermore, we found no error or injustice
with regard to the  characterization  of  applicant’s  discharge.   We
therefore agree with  the  recommendations  of  the  Associate  Chief,
Military Justice Division and adopt the  rationale  expressed  as  the
basis for our decision that the applicant has failed  to  sustain  his
burden  that  he  has  suffered  either  an  error  or  an  injustice.
Therefore, we find no  compelling  basis  to  recommend  granting  the
relief sought.

4.  The documentation provided with this case was sufficient  to  give
the Board a clear understanding of the issues involved and a  personal
appearance, with or without counsel, would not have  materially  added
to that understanding.  Therefore, the request for a  hearing  is  not
favorably considered.

_______________________________________________________________________
_____________________

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 10 May 1999, under the provisions of AFI 36-2603.

                  Mr. David C. Van Gasbeck, Panel Chair
                  Mr. Grover L. Dunn, Member
                  Mr. E. David Hoard, Member

The following documentary evidence was considered:

   Exhibit A.  DD Form 149, dated 10 Jun 98, w/atchs.
   Exhibit B.  Applicant's Master Personnel Records.
   Exhibit C.  Letter, AFLSA/JAJM, dated 5 Aug 98.
   Exhibit D.  Letter, AFBCMR, dated 24 Aug 98.
   Exhibit E.  Applicant’s Letter, dated 20 Oct 98, w/atchs.




                                   DAVID C. VAN GASBECK
                                   Panel Chair