RECORD OF PROCEEDINGS
             AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS

IN THE MATTER OF:      DOCKET NUMBER:  01-02120
            INDEX CODE:  102.07, 128.00
            COUNSEL:  NONE

            HEARING DESIRED:  YES

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APPLICANT REQUESTS THAT:

Her late husband be reinstated to his former grade of SSgt (E-5)  with  back
pay and allowances.

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APPLICANT CONTENDS THAT:

Her late husband did not receive a fair hearing and was erroneously  charged
with an offense (illicit drug possession) because he  was  not  living  with
his ex-wife at the time.

In support of her request, applicant provides a  personal  statement  and  a
copy of her husband’s death  certificate.   Her  complete  submission,  with
attachments, is at Exhibit A.

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STATEMENT OF FACTS:

On 7 February 1977, the former member contracted his initial  enlistment  in
the Regular Air Force.  He was progressively promoted to the grade of  staff
sergeant (E-5) with an effective date and date of rank  of  1  August  1980.
The former member continued to reenlist, his last reenlistment on  occurring
2 February 1987, in the grade of E-5, for a  period  of  6  years.   He  was
reduced to the grade of airman first class (E-3), with a  date  of  rank  of
4 June 1992, as a result of his conviction by a Special Court-Martial.   The
summary of the facts related to his court-martial conviction and  retirement
in the grade of airman first class follow.

On 29 April 1992, the former member was found guilty by a court-martial  for
constructive possession of marijuana, on divers  occasions,  between  on  or
about 14 April  1987  and  13  April  1992.   His  punishment  consisted  of
confinement for three months, reduction from staff sergeant (E-5) to  airman
first class (E-3), and a reprimand.  On 20 October 1992, a  discharge  board
was held at Keesler AFB, MS, to decide if he should be discharged  prior  to
the expiration of his term of service.  The discharge board  found  that  he
was subject to discharge for drug abuse and  recommended  he  be  discharged
from the Air Force with a general discharge.  The board  did  not  recommend
he be offered probation and rehabilitation.  Information extracted from  the
record reveals that although he was  convicted  for  illegal  possession  of
marijuana on divers occasions, his conviction was derived from  his  failure
to act to stop the illegal conduct (possession and use of marijuana) in  his
residence.  According to the case file, there was no evidence introduced  at
his court-martial or at the discharge board  hearing  to  indicate  that  he
personally used marijuana.  Based on the fact  that  he  was  credited  with
more than 19  years  of  active  military  service,  he  requested  and  was
considered for lengthy service probation under the provisions of AFR  39-10,
Chapter 6, Section F, paragraph 6-35.  On 18 December  1992,  the  discharge
authority approved a general  (under  honorable  conditions)  discharge  and
recommended lengthy service probation.   The  Secretary  of  the  Air  Force
approved this recommendation on 1 April 1993.

On 15 April 1993, the former member applied for voluntary retirement, to  be
effective 1 October 1993.  On 7 June 1993, the Secretary of  the  Air  Force
determined he did not serve satisfactorily in  the  higher  grade  of  staff
sergeant.  However it was found that he  did  serve  satisfactorily  in  the
grade of senior airman and that he be advanced to that grade on the  Retired
List  upon  completion  of  all  required  service  which  would  have  been
effective 5 September 2003.  On 30 September  1993,  he  was  relieved  from
active duty and retired on 1 October 1993  in  the  grade  of  airman  first
class, after serving 20 years, and 26 days on active duty.   Dates  of  time
lost were 29 April 1992 through 14 July 1992 due to confinement.

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AIR FORCE EVALUATION:

AFPC/DPPPWB recommends the application be denied.  DPPPWB  states  that  the
applicant’s deceased husband was found guilty of  possession  of  marijuana,
although the drug was not directly in his possession.  However,  he  allowed
with full knowledge, his spouse at the time, and her friend to  possess  and
use marijuana in his on-base government quarters at Kessler AFB MS.

DPPPWB also states the application should  be  time-barred.   The  applicant
has failed to provide any rationale for the delay in filing  an  application
even though she was present and aware of  her  husband’s  grade  during  his
court-martial.  DPPPWB evaluation is at Exhibit C.
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APPLICANT'S REVIEW OF AIR FORCE EVALUATION:

Applicant responded to the DPPPWB advisory and reiterates that she  believes
that her late husband’s records should be changed.  The military should  not
try to prove something at the expense of her husband’s reputation.

In further support of her request applicant provides an additional  copy  of
her original letter dated 11 August 2001.  Applicant’s  complete  submission
is at 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 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.  The former member was reduced  in
grade from staff sergeant to  airman  first  class  as  the  result  of  his
conviction by a court-martial.  It appears the applicant believes  her  late
husband did not commit an offense triable  by  a  military  court.   We  are
constrained to note that, with respect to  the  records  of  courts-martial,
Title  10,  Unites  States  Code,  Section  1552(f)  limits  this  Board  to
correction of a record to reflect actions taken by reviewing  officials  and
action on the sentence of a court-martial  for  the  purposes  of  clemency.
There is no indication in the evidence provided that  the  sentence  of  the
military court exceeded the maximum punishment allowable under the UCMJ  nor
do we believe it was unjust based  on  the  offense  for  which  the  former
member stood  convicted.   As  a  matter  of  clemency,  the  former  member
received lengthy  service  probation  to  enable  him  to  reach  retirement
eligibility.  Between the time  of  his  court-martial  and  retirement  for
length of service, the  former  member  was  not  promoted  and,  therefore,
properly retired in the grade of airman first class.   Other  than  her  own
assertions, we have seen no persuasive evidence by the applicant  indicating
the sentence  of  the  military  court  was  excessive  or  unjust,  further
clemency is warranted in this  case,  or  the  former  member’s  substantial
rights were violated.  To the contrary,  considering  the  circumstances  of
this case, we believe  Air  Force  authorities  acted  humanely  toward  the
former member.  Accordingly, in view of the above, the  applicant’s  request
is not favorably considered.

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 issues 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 5 December 2001, under the provisions of AFI 36-2603:

      Mr. Benedict A. Kausal IV, Panel Chair
      Mr. John B. Hennessey, Member
      Mr. Thomas J. Topolski Jr, Member

The following documentary evidence was considered:

    Exhibit A.  DD Form 149, dated 14 July 2001 w/atchs.
    Exhibit B.  Applicant's Master Personnel Records.
    Exhibit C.  Letter, AFPC/DPPWB, dated 22 August 2001.
    Exhibit D.  Letter, SAF/MIBR, dated 31 August 2001.
    Exhibit E.  Letter, Applicant, dated 10 September 2001,
                w/Atchs.




                                   BENEDICT A. KAUSAL IV
                                   Panel Chair