RECORD OF PROCEEDINGS
         AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS


IN THE MATTER OF:      DOCKET NUMBER:  99-01365
            INDEX CODE: 110.00

            COUNSEL:  RONALD SMALL

            HEARING DESIRED:  NO


_________________________________________________________________

APPLICANT REQUESTS THAT:

His bad conduct discharge (BCD) be  upgraded  and  he  be  allowed  to
retire in the grade of master sergeant.

_________________________________________________________________

APPLICANT CONTENDS THAT:

He has been a model citizen since his release from confinement, he has
learned from his weaknesses and made the spiritual changes in his life
that show remorse for wrongs done.  He notes that his over 22 years of
honorable service prior to his fall from grace  should  be  worthy  of
consideration.  He states that he was never offered an  administrative
discharge, even though it was  an  acceptable  alternative  to  court-
martial.  He further states that other master sergeants  convicted  of
drug offenses with whom he was incarcerated were permitted  to  retire
after serving their sentences and  one  was  permitted  to  return  to
active duty to permit him to qualify  for  retirement.   He  does  not
believe that justice was served on the day that all he had ever  known
as a man was denied him.

Applicant's complete submission is attached at Exhibit A.

_________________________________________________________________

STATEMENT OF FACTS:

The applicant enlisted in the Regular Air Force on 24 July 1972.

EPR profile since 1990, reflects the following:

       PERIOD ENDING                EVALUATION OF POTENTIAL

         29 Jan 90                         4
         10 Aug 90                         4
              1 Apr 91                     4
              1 Apr 92                     5
              1 Apr 93                     5
              1 Apr 94                     5
              1 Apr 95                     5

On 22 and 29 November 1994 and on 9 December 1994, the applicant,  who
was then serving in the grade of master  sergeant,  was  charged  with
wrongful use of cocaine, wrongful use of marijuana, and  wrongful  use
and possession  of  cocaine.   On  6  January  1995,  the  charge  and
specifications were referred to trial by general  court-martial.   The
applicant’s court-martial convened at XXX XXX, on 4 April  1995.   The
applicant, contrary to his pleas, was  found  guilty  of  the  charged
offenses by a court composed of officer and enlisted members.  He  was
sentenced to a bad conduct discharge, confinement for eighteen months,
and reduction to airman basic.  On  30  October  1995,  the  convening
authority approved the sentence as adjudged.  On 13 December 1996, the
Air  Force  Court  of  Criminal  Appeals  affirmed  the  findings  and
sentence.  On 25 September 1997, the Court of Appeals  for  the  Armed
Forces (CAAF) granted the applicant’s petition for review.  On 4 March
1998,  the  Secretary  of  the  Air  Force  declined  to  accept   the
application for retirement submitted on 5 March 1996 by the applicant.
 On 6 August 1998, CAAF affirmed the decision of the lower court.  The
bad conduct discharge was executed on  22 January 1999.

_________________________________________________________________

AIR FORCE EVALUATION:

The Associate Chief, Military Justice Division,  AFLSA/JAJM,  reviewed
the application and states that the evidence established that  a  base
commissary employee admitted to AFOSI agents  that  she  sold  illegal
drugs  to  several  military  members.   Among  those  named  was  the
applicant, whom the employee knew only as C---.   The  employee  later
identified the applicant from a photograph.  She stated she  sold  the
applicant cocaine on numerous occasions; the last  sale  occurring  in
January or February 1994 when the  applicant  brought  three  bags  of
cocaine (approximately 1 gram in  total  for  $50.00.   She  had  also
observed the applicant use cocaine.

The applicant was then interviewed by AFOSI and subsequently agreed to
provide hair and urine samples  for  drug  testing.   The  applicant’s
urine tested positive for cocaine and marijuana and  his  hair  tested
positive for cocaine.

The offenses were fully litigated at trial and  decided  adversely  to
the  applicant.   The  applicant’s  conviction   and   sentence   were
considered during clemency and on appeal and ultimately  upheld.   The
applicant has not provided  the  Board  with  any  information,  which
warrants reversing the informed decision of the  military  judge,  the
convening authority, or the appellate courts.

This case was fully litigated at trial and resulted in the applicant’s
conviction.  The applicant does  not  allege  his  conviction  was  in
error.  Shortly after his conviction, the applicant admitted his  drug
use in his 17 October 1995 request for clemency and does  likewise  in
his request for relief.  The sentence adjudged  at  trial  provided  a
reasonable balance between the applicant’s duty  performance  and  the
seriousness of his repeated and deliberate misconduct.  Both appellate
courts have reviewed the applicant’s case for  both  legal  error  and
sentence  appropriateness  and  both  courts  have  decided  the  case
adversely to the applicant.  The findings of guilt  and  the  sentence
imposed are fairly supported by the evidence  and  are  the  sole  and
undeniable  consequences  of  the  applicant’s  own   criminal   acts.
Although the Board has jurisdiction to grant the relief  requested  by
the applicant as a matter of clemency,  such  action  is  clearly  not
warranted.

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

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APPLICANT'S REVIEW OF AIR FORCE EVALUATION:

He states that he had no intention of retrying his case as a matter of
record.  His desire was to only appeal to common decency,  forgiveness
and mercy in his plea for correction.  As stated, he was convicted  of
Article 112A violations, substance abuse  and  possession,  which  was
redundant.  He states in order for him to use he had to  possess.   He
pled not guilty on the basis that the information and  dates  used  to
convict him were inaccurate plus the government’s OSI agents  involved
did not allow him counsel when requested which is a well  know(n)  and
overlooked process used by the government and investigating  agencies.
A contention that was eagerly ignored by the convening judge.

He states that no hair follicle test was ever entered into evidence in
his case.  In fact the hair sample that was taken from him was cut and
involved no follicle  at  all.   It  should  not  have  been  used  to
prejudice the decision in this matter.  He states  that  he  finds  it
upsetting that this could be added as if it was a matter  of  judicial
record.  He believes it is not fair to admit the two  different  types
of  polygraph  tests  he  took  from  two  independent  civilian   law
enforcement  officers  and  passed  without  exception  to  prove  the
government denied him the right to counsel when requested.   Since  it
could not be used by the court he hope it will be  considered  by  the
board.  Just as counsel has conspired to add the hair sample.

He states the government knew the warrant they had for a drug test was
weak because of the lapse in time from the alleged offense.   That  is
why they had to use every know(n) OSI trick to give the appearance  of
consent.  He asked for counsel and was told by the OSI that  it  would
go  better  for  him  if  he  cooperated  as  they   continued   their
interrogation.  He states that the lab sign in log that he signed  for
the sample was modified after he signed it and the designated test was
changed on the log without his knowledge.

The applicant states that he is not a  bitter  man  but  one  who  has
watched the whole military justice process fail him.

Applicant's complete response 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 timely filed.

3.    Insufficient relevant evidence has been presented to demonstrate
the existence of probable error or injustice.  We took notice  of  the
applicant's complete submission in judging the  merits  of  the  case;
however, we agree with the opinion and recommendation of the Air Force
and adopt their rationale as the basis for  the  conclusion  that  the
applicant  has  not  been  the  victim  of  an  error  or   injustice.
Therefore, in the absence of evidence to  the  contrary,  we  find  no
compelling basis to recommend  granting  the  relief  sought  in  this
application.

_________________________________________________________________

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 17 October 2000, under the provisions of AFI  36-
2603:

                 Mr. Benedict A. Kausal, IV, Panel Chair
                 Ms. Dorothy P. Loeb, Member
                 Mr. Richard A. Peterson, Member

The following documentary evidence was considered:

      Exhibit A. DD Form 149, dated 19 May 99, w/atchs.
      Exhibit B. Applicant's Master Personnel Records.
      Exhibit C. Letter, AFLSA/JAJM, dated 21 Sep 99.
      Exhibit D. Letter, AFBCMR, dated 15 Oct 99.
      Exhibit E. Applicant’s Letter, dated 15 Oct 99.




                             BENEDICT A. KAUSAL, IV
                             Panel Chair