RECORD OF PROCEEDINGS
         AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS


IN THE MATTER OF:      DOCKET NUMBER:  99-00309
                 INDEX CODE:  126.02

                 COUNSEL:  NONE

                 HEARING DESIRED:  NO

APPLICANT REQUESTS THAT:

His records be corrected to reflect his highest grade held  on  active
duty of airman first class, rather than the grade he  was  reduced  to
pursuant to a Uniform Code  of  Military  Justice  (UCMJ)  Article  15
action (airman).

APPLICANT CONTENDS THAT:

He was discharged as punishment for  something  he  did  not  do.   He
served honorably and he would like for  his  discharge  rank  to  show
this.  Applicant states that he would like his  rank  restored  so  he
doesn’t  have  this  hanging  over  his  head  when  he  applies   for
employment.

In  support  of  his  appeal,  applicant  submits  portions   of   the
documentation reviewed by the Air Force Discharge Review Board.

Applicant’s submission is attached at Exhibit A.

STATEMENT OF FACTS:

Applicant enlisted in the Regular Air Force on 25 September 1989 for a
period of four (4) years in the grade of airman basic.

On 1 September 1992, while serving in the grade of airman first class,
applicant’s Squadron Commander informed  the  applicant  that  he  was
considering whether or not the  applicant  should  be  punished  under
Article 15, Uniform  Code  of  Military  Justice  (UCMJ)  for  alleged
misconduct in violation of Article 112a, UCMJ.  Between  on  or  about
1 January 1991 and 7 June 1991, he  (applicant)  wrongfully  possessed
and used a  controlled  substance,  i.e.,  marijuana.   The  applicant
indicated that he understood his rights and consulted  a  lawyer.   He
waived his right to demand trial by court-martial, requested to make a
personal  appearance  before  the  commander  and  submitted   written
mitigation.  After considering the matters  presented,  the  commander
found that the applicant  did  commit  the  offense  alleged.   On  14
September 1992 applicant received the Article 15  and  the  punishment
imposed was reduction to the grade of airman and forfeiture of $100.00
pay per month for two (2)  months.   The  applicant’s  appeal  of  the
action was denied on 2 October 1992.  The Article 15 action was  found
to be legally sufficient on 6 October 1992.
On 6 October 1992, applicant’s Squadron Commander notified him that he
was recommending discharge  action  for  drug  abuse.   The  commander
indicated that if the recommendation was approved, he was recommending
that applicant’s service be characterized as general  under  honorable
conditions.  The reason for this action, cited by the  commander,  was
the 14 September 1992 Article 15.  The applicant acknowledged  receipt
of the discharge notification on 6 October  1992,  consulted  military
legal counsel, and submitted statements in his behalf.

While serving in the grade of airman, applicant was discharged  on  14
October 1992 under the provisions of  AFR  39-10  (Misconduct  –  Drug
Abuse) with a general discharge.  He served 3 years and 20 days active
duty with no time lost.

In August 1993,  applicant  submitted  a  request  to  the  Air  Force
Discharge Review Board (AFDRB) for an  upgrade  of  his  discharge  to
honorable.  On 18 May 1994, the AFDRB found that the  overall  quality
of applicant’s service was more accurately reflected by an “Honorable”
discharge and the reason for discharge was more  accurately  described
as “Secretarial Authority.”  As a result, the applicant’s DD Form  214
was changed to reflect the AFDRB’s findings.

AIR FORCE EVALUATION:

The Deputy Chief, Military Justice Division, Air Force Legal  Services
Agency, AFLSA/JAJM, states that the applicant has not explained why he
submitted this application over three  years  late.   Because  of  his
delay,  the  Board  cannot  compare  his  assertions  with   objective
documentation maintained by  the  Government  because  the  supporting
evidence no longer exists.  AFLSA/JAJM verified with Cannon Air  Force
Base (AFB) officials that the documents supporting the Article 15 were
destroyed after three years.  If the Board  simply  assumes  that  the
assertions made by the applicant  are  true,  then  relief  should  be
granted.  If, however, the Board finds that official actions, such  as
the Article 15 action, are presumed to  be  correct  unless  they  are
proven to be erroneous, then the basis for relief is less clear.

The applicant could have turned down the Article 15 forum and required
the Government to prove the charge beyond  a  reasonable  doubt  at  a
court-martial.  Court-martial records would still  exist.   Given  all
the safeguards, one has to wonder why the applicant’s guilt, which the
applicant paints as so doubtful today, was so clear to  the  officials
in 1992.

In sum, it is tempting to afford an applicant relief  in  cases  where
the Board has essentially only the applicant’s version of the  events.
The Board must, however,  give  some  amount  of  credibility  to  the
judgments and decisions made by  Air  Force  officials  at  the  time.
After a review of the available records,  it  is  concluded  that  the
applicant has not submitted a timely application upon which corrective
action can be taken.  Recommend the application be denied.

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

The Chief, Inquiries/AFBCMR Section,  Enlisted  Promotion  &  Military
Testing Branch, AFPC/DPPPWB, states that AFLSA/JAJM has  reviewed  the
case and determined there are no  legal  errors  requiring  corrective
action.  AFPC/DPPPWB defers to their recommendation.  However,  should
the Board set aside the reduction as requested by the  applicant,  his
effective date and date of rank to Airman First Class was  25  January
1991.

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

APPLICANT’S REVIEW OF AIR FORCE EVALUATION:

Copies of the Air Force evaluations were forwarded to the applicant on
17 May 1999 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.  Sufficient relevant evidence has been presented to demonstrate the
existence  of  probable  error  or  injustice  to  warrant   favorable
consideration to the applicant’s request.   We  note  that  AFLSA/JAJM
states that the Article 15 action was found to be  legally  sufficient
by  the  Air  Force  Judge  Advocates.   We  also  note   AFLSA/JAJM’s
recommendation in which they  conclude  that  the  applicant  has  not
submitted a timely application upon which  corrective  action  can  be
taken.  However, consideration by this  Board  is  not  limited  to  a
determination of whether or not the  Article  15  was  in  substantial
compliance with the governing directives.  We may base our decision on
what we perceive to be an injustice  based  on  the  totality  of  the
circumstances  involved.   Our  decision  in  no  way  discredits  the
validity of the officials involved in the Article 15 action.

4.  After a careful review of the evidence and circumstances  of  this
case, the majority of the board believes that the Article  15  imposed
on the applicant was too harsh.  He was accused  of  wrongfully  using
marijuana, received an Article 15 and was subsequently discharged  for
misconduct – drug abuse with a general discharge.  We  note  that  the
applicant submitted an appeal to the Air Force Discharge Review  Board
(AFDRB) and the AFDRB upgraded the discharge to honorable and  changed
the narrative reason for separation from misconduct –  drug  abuse  to
Secretarial Authority.  The AFDRB based their decision  on  additional
evidence they obtained which enabled them to reexamine the  facts  and
events leading to the applicant’s discharge.  The  AFDRB  stated  that
the additional evidence they obtained gave credence to the applicant’s
contention that his  discharge  was  based  on  false  and  revengeful
accusations made to the Office of Special Investigations (OSI) by  the
applicant’s ex-girlfriend and her friend.   Therefore,  based  on  the
decision of the AFDRB to change the applicant’s reason  for  discharge
and the upgrade of his discharge to honorable,  the  majority  of  the
Board is convinced that the Article  15  was  unjust.   Recommend  his
records be corrected to the extent indicated below.

THE BOARD RECOMMENDS THAT:

The pertinent military records of the  Department  of  the  Air  Force
relating to APPLICANT,  be  corrected  to  show  that  the  punishment
imposed under the provisions of Article 15, Uniform Code  of  Military
Justice (UCMJ), AF Form 3070, on 14 September 1992, be set  aside  and
all rights, privileges,  and  property  of  which  he  may  have  been
deprived, be restored.

The following members of the  Board  considered  this  application  in
Executive Session on 1 December 1999, under the provisions of AFI  36-
2603:

                  Mrs. Barbara A. Westgate, Panel Chair
                  Mr. William H. Anderson, Member
              Mr. Philip Sheuerman, Member

By a majority vote, the Board recommended the applicant’s  request  be
granted.  Mr. Sheuerman voted to deny the  application  but  does  not
wish to submit a minority report.  The following documentary  evidence
was considered:

   Exhibit A.  DD Form 149, dated 28 Jan 99, w/atchs.
   Exhibit B.  Applicant's Master Personnel Records.
   Exhibit C.  Letter, AFLSA/JAJM, dated 13 Apr 99.
   Exhibit D.  Letter, HQ AFPC/DPPPWB, dated 23 Apr 99.
   Exhibit E.  Letter, AFBCMR, dated 17 May 99.





                                   BARBARA A. WESTGATE
                                   Panel Chair

AFBCMR 99-00309




MEMORANDUM FOR THE CHIEF OF STAFF

      Having received and considered the recommendation of the Air
Force Board for Correction of Military Records and under the authority
of Section 1552, Title 10, United States Code (70A Stat 116), it is
directed that:

      The pertinent military records of the Department of the Air
Force relating to APPLICANT be corrected to show that the punishment
imposed under the provisions of Article 15, Uniform Code of Military
Justice (UCMJ), AF Form 3070, on 14 September 1992, be, and hereby is,
set aside and all rights, privileges, and property of which he may
have been deprived, be restored.







   JOE G. LINEBERGER

   Director

   Air Force Review Boards Agency