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AF | BCMR | CY2002 | 0201267
Original file (0201267.doc) Auto-classification: Denied

                            RECORD OF PROCEEDINGS
             AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS

IN THE MATTER OF:      DOCKET NUMBER:  02-01267
            INDEX CODE:  110.00

      APPLICANT  COUNSEL:  None

      SSN   HEARING DESIRED: No

_________________________________________________________________

APPLICANT REQUESTS THAT:

His bad conduct discharge  be  upgraded  to  an  honorable  conditions
discharge.

_________________________________________________________________

APPLICANT CONTENDS THAT:

His discharge should be upgraded because someone of equal rank did not
conduct his test.  His specimen was left unattended and the  chain  of
custody was compromised (Exhibit A).

_________________________________________________________________

STATEMENT OF FACTS:

The applicant enlisted in the Regular  Air Force as  an  airman  on  4
January 1971.

The applicant's court-martial  proceedings  were  conducted  on  28-29
August 1990.  He was charged with violating  Article  112a,  Uniformed
Code of  Military  Justice  (UMCJ),  wrongful  use  of  cocaine.   The
applicant was found  guilty  of  wrongful  use  of  cocaine.   He  was
sentenced to a bad conduct discharge, six  months  confinement,  total
forfeitures, and reduction to airman basic.

The Air Force Court of  Military  Review  affirmed  the  findings  and
sentence on 11 June 1992.  On 31 May 1994, the U. S. Court of Military
Appeals affirmed the findings and sentence.  The U. S.  Supreme  Court
denied the applicant's application for writ of certiorari on 9 January
1995.  On 17 March 1995, the  final  court-martial  order  was  issued
directing the applicant's bad conduct discharge be executed.   He  was
discharged on 23 June 1995.

The remaining relevant facts pertaining to this application, extracted
from the applicant's military records, are  contained  in  the  letter
prepared by the appropriate office of the Air Force.

_________________________________________________________________

AIR FORCE EVALUATION:

AFLSA/JAJM states that applicant was court-martialed for wrongful  use
of cocaine.  The applicant stated during his court-martial that he was
unaware the he had ingested cocaine.  The government's expert  witness
contradicted the applicant's testimony by stating if the applicant had
ingested the cocaine as he claimed, it would have been  a  near  fatal
dosage with side effects, which the applicant had none.  The applicant
was represented by legal counsel at his court-martial and  his  court-
martial proceedings were conducted in accordance  to  the  appropriate
rules and regulations.

The applicant now alleges that his monitor for the testing was not  of
equal rank and that the system failed him  because  his  specimen  was
left unattended.  The applicant has not provided sufficient persuasive
evidence to support his allegations.  Therefore, based on the evidence
and records  provided  JAJM  recommends  the  applicant's  request  be
denied.

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

_________________________________________________________________

APPLICANT'S REVIEW OF AIR FORCE EVALUATION:

A complete copy of the Air  Force  evaluation  was  forwarded  to  the
applicant on 9 August 2002, for review and response.  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.    Insufficient relevant evidence has been presented to demonstrate
the existence of error or injustice.  After careful  consideration  of
the circumstances of this  case  and  the  evidence  provided  by  the
applicant, we are not persuaded that the discharge he received was  in
error or unjust.  Applicant’s contentions are duly noted; however,  we
agree with the opinion and recommendation of the Air Force  and  adopt
their rationale as the basis for our 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 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   Docket  Number  02-
01267 in Executive Session on 17 September 2002, under the provisions
of AFI 36-2603:

                   Ms. Olga M. Crerar, Panel Chair
                   Mr. Billy C. Baxter, Member
                   Mr. Clarence D. Long III, Member

The following documentary evidence was considered:

   Exhibit A.  DD Form 149, dated 6 Mar 02, w/atchs.
   Exhibit B.  Applicant's Master Personnel Records.
   Exhibit C.  Letter, AFLSA/JAJM, dated 29 Jul 02.
   Exhibit D.  Letter, SAF/MRBR, dated 9 Aug 02.




                                  OLGA M. CRERAR
                                  Panel Chair

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