RECORD OF PROCEEDINGS
             AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS

IN THE MATTER OF:      DOCKET NUMBER:  99-03143
            INDEX CODE:  105.01

      APPLICANT  COUNSEL:  MR. LOUIS N. HIKEN

            HEARING DESIRED:  YES

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APPLICANT REQUESTS THAT:

His bad conduct discharge and the command’s decision to refuse  clemency  be
set aside and he be granted an honorable discharge based upon probation  and
rehabilitation.

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APPLICANT CONTENDS THAT:

The military trial judge's decision at his rehearing on sentence, to  refuse
to instruct the members concerning the policies  set  forth  in  DOD  1010.4
(Alcohol and Drug Abuse by DOD Personnel) denied him a fair trial and  equal
protection under the  law.   He  should  have  been  granted  probation  and
rehabilitation for one-time use of cocaine and allowed military retirement.

In support of his request  the  applicant  submitted  a  brief  by  counsel,
copies of numerous supportive statements and U.S.  District  Court  findings
from the states of California and District of Columbia in which  the  courts
ruled in favor of the plaintiffs against the U.S.  Air  Force  and  Navy  in
similar cases involving administrative discharges for drug abuse.

The applicant’s complete submission is at Exhibit A.

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STATEMENT OF FACTS:

The applicant contracted his initial enlistment in the Regular Air Force  on
27 February 1975.   He  continued  to  enlist  and  serve  on  active  duty,
entering his last enlistment on 1  June  1990,  when  he  reenlisted  for  4
years.  This enlistment was twice extended for a total period of 10  months.
 Prior to the events under review, he  was  progressively  promoted  to  the
grade of technical sergeant, effective and with a date of  rank  of  1  June
1987.  Subsequent  to  his  promotion  to  that  grade,  he  received  eight
Airman/Enlisted  Performance  Reports  (APRs/EPRs),  in  which  the  overall
evaluations were 9, 9, 9, 5 (first EPR), 5, 5, 4, and 5.

On 20 December 1994, pursuant to his  plea  of  guilty,  the  applicant  was
convicted by a general court-martial for wrongful use of cocaine from on  or
about 1 July 1994 to 14 July 1994.  He was sentenced to be  discharged  with
a bad conduct discharge, to be confined for a  period  of  90  days,  to  be
reduced in grade to airman basic.  On 12 March 1995,  general  court-martial
orders were published showing that the sentence of the military court was  a
bad conduct discharge, confinement for  90  days  and  reduction  to  senior
airman (E-4).  By general  court-martial  orders,  dated  12  July  1997,  a
rehearing on the sentence was ordered before another  court-martial.   On  8
October 1997, a general court-martial was convened  for  the  purpose  of  a
rehearing  on  the  sentence  only.   The  applicant  was  sentenced  to  be
discharged with a bad conduct discharge  and  to  be  reduced  in  grade  to
airman basic.  The general court-martial  approving  authority  subsequently
approved only so much of the sentence  which  provided  for  a  bad  conduct
discharge and reduction  in  grade  to  E-4.   It  was  indicated  that  the
applicant would be credited with any portion of the punishment  served  from
20 December 1994 to 9 June 1997 under the sentence adjudged  at  his  former
trial.

On 8 April 1996, the applicant submitted an application for retirement.   On
9 March 1998, the  Secretary  of  the  Air  Force  declined  to  accept  the
applicant’s application for retirement.

In court-martial orders dated 23 April  1999,  it  was  indicated  that  the
approved sentence to a bad conduct  discharge  and  reduction  in  grade  to
senior airman had been affirmed.  Since the provisions of Article 71(c)  had
been complied with the discharge was ordered into execution.

On 17 May 1999, the applicant was discharged with a bad  conduct  discharge.
He was credited with 24 years and  8  days  of  active  duty  service.   The
period 20 December 1994 through 2 March 1995 was considered  time  lost  due
to confinement.

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AIR FORCE EVALUATION:

The Associate Chief, Military Justice Division,  AFLSA/JAJM,  reviewed  this
application and recommends denial.  JAJM states that the court members  were
well aware of  the  impact  a  bad  conduct  discharge  would  have  on  the
applicant's future.  At the rehearing on sentence, the  applicant  had  four
witnesses testify on his behalf and provided 31  letters  attesting  to  his
good character.  His civilian defense counsel advised the  members  that  if
they adjudged a punitive discharge, the applicant  would  be  ineligible  to
retire.

JAJM indicated that the court-martial was properly  convened  and  conducted
and  all  evidence  was  available  to  provide  justice.   The  applicant's
conviction and sentence, upon rehearing, were considered by  the  Air  Force
Court of Criminal Appeals (AFCCA) and the United  States  Court  of  Appeals
for the Armed Forces (USCAFF) and upheld.  The  applicant  has  provided  no
information pointing out error or injustice in his records.

A complete copy of the evaluation is at Exhibit C.

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APPLICANT'S REVIEW OF AIR FORCE EVALUATION:

Counsel for the applicant reviewed the Air Force evaluation and provided  an
additional copy of a similar U.S District Court  finding  in  the  state  of
California in which ruling was made in favor of the  plaintiff  against  the
U.S. Army (see Exhibit E).

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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 agree  with  the  opinion  and
recommendation of the Office of the Judge Advocate General and  adopt  their
rationale as the basis for our conclusion that the applicant  has  not  been
the victim of an error or injustice.  We carefully considered, but were  not
persuaded by the applicant’s assertions that under the given  circumstances,
probation and rehabilitation would have  been  appropriate.   We  thoroughly
reviewed the United States District Court cases provided  by  the  applicant
in support of his request.   We  noted  that  each  of  these  cases,  while
similar, were in reference to administrative discharge proceedings,  whereas
the applicant was tried,  convicted,  and  sentenced  by  a  general  court-
martial.  Thus, we find that they do not apply in this particular case.   It
is our opinion that the punitive action  taken  against  the  applicant  was
proper and in compliance with the Air Force drug abuse policy  that  was  in
effect at the time.  We find no evidence of error in  this  case  and  after
thoroughly reviewing the documentation that has been  submitted  in  support
of applicant's appeal, we do not believe he has suffered from an  injustice.
 Therefore, based on the available evidence of  record,  we  find  no  basis
upon which to favorably consider this application.

4.  The applicant's case is adequately documented and it has not been  shown
that a personal appearance with or without counsel will  materially  add  to
our understanding of the issue  involved.   Therefore,  the  request  for  a
hearing is not favorably considered.

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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.

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The following members of the Board considered this application in  Executive
Session on 1 Aug 00, under the provisions of AFI 36-2603:

      Ms. Rita S. Looney, Panel Chair
      Ms. Peggy E. Gordon, Member
      Ms. Melinda Loftin, Member

The following documentary evidence was considered:

    Exhibit A.  DD Form 149, dated 23 Nov 99, w/Atchs.
    Exhibit B.  Applicant's Master Personnel Records.
    Exhibit C.  Letter, AFLSA/JAJM, dated 30 Mar 00.
    Exhibit D.  Letter, SAF/MIBR, dated 14 Apr 00.
    Exhibit E.  Letter, Applicant's Counsel, 17 Apr 00, w/Atch.




                                   RITA S. LOONEY
                                   Panel Chair