RECORD OF PROCEEDINGS
             AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS

IN THE MATTER OF:                       DOCKET NUMBER:  02-03460
                                        INDEX CODE:  110.00

                                        COUNSEL:  NONE

                                        HEARING DESIRED:  NO

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APPLICANT REQUESTS THAT:

His Bad Conduct Discharge (BCD) be upgraded to General.

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APPLICANT CONTENDS THAT:

After nearly 16 years of honorable service, including combat duty in
South Vietnam, and after receiving two earlier honorable  discharges
and reenlisting twice, he became involved in  an  isolated  incident
that resulted in his court-martial.  He feels this  was  inequitable
and it has now prevented him  from  receiving  VA  health  care  and
treatment for conditions he believes are  service-connected  to  his
duties in a combat theater.

In support of the appeal, applicant submits  a  personal  statement,
copies  of  correspondence  between  himself  and  a  Department  of
Veterans Affairs officer, a separation document  issued  to  him  in
1976, and a statement by a local Veterans Employment Representative.
 Applicant's complete submission, with attachments, is at Exhibit A.

_________________________________________________________________

STATEMENT OF FACTS:

The applicant contracted his initial enlistment in the  Regular  Air
Force on 12 November 1968.  He continued to  serve  on  active  duty
until  the  separation  that  is  the  subject  of  this  appeal  by
reenlisting on 20 March 1972, 19 March 1976 and 19 March 1980.   His
first three periods of service ended in honorable discharges for the
purpose of reenlistment.  Prior to the events under review,  he  had
been progressively promoted to  the  grade  of  technical  sergeant,
effective and with a date of rank of 1 December 1979.  Subsequent to
his promotion to  that  grade,  he  received  4  Airman  Performance
Reports (APRs)  which  contained  overall  evaluations  of  “9”  and
“firewalled” evaluations of performance.

On 1 September 1983, the applicant was convicted by a special court-
martial for violation of  the  Uniform  Code  of  Military  Justice,
Article 134 in two  specifications.   The  applicant  had  pled  not
guilty and was found guilty of wrongful use of marijuana on  diverse
occasions from on or about 30 June 1981 to on or about 1  June  1983
and wrongful possession of some amount of marijuana from on or about
30 June 1981 to 1 June 1983.  He was sentenced to be discharged with
a BCD, to be confined for 2 months, to forfeit $200 per month for  2
months and to be reduced in grade to airman first class (A1C).   The
sentence was approved  by  the  officer  exercising  General  Court-
Martial authority and affirmed and directed into execution following
appellate review.

In the meantime, on 19 September 1983,  the  applicant  underwent  a
substance abuse evaluation at  a  military  medical  facility.   The
interviewer indicated that the applicant  had  indicated  there  was
only circumstantial evidence supporting his conviction.   He  denied
all use and possession.  Any diagnosis was deferred and  it  appears
medical personnel determined the applicant  should  not  be  entered
into a rehabilitation program.

On 20 December 1984, the applicant was discharged in  the  grade  of
A1C (E-3) with a bad conduct discharge under the provisions  of  AFR
39-10 (Misconduct - Drug Abuse).  He was credited with  4  years,  7
months and 12 days of active duty service for  his  last  period  of
service.  He was credited with 11 years, 4  months  and  7  days  of
prior  active  duty  service.   Time  lost  was  51  days   due   to
confinement.

Pursuant  to  the   Board’s   request,   the   Federal   Bureau   of
Investigation, Clarksburg, West Virginia, provided an  investigative
report, which is attached at Exhibit C.

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AIR FORCE EVALUATION:

AFPC/DPPRS states that they believe  the  discharge  was  consistent
with the procedural and substantive requirements  of  the  discharge
regulation at that time.  They believe the discharge was within  the
discretion of the discharge authority.   Therefore,  they  recommend
denial of applicant’s request.

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

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APPLICANT'S REVIEW OF AIR FORCE EVALUATION:

The applicant reviewed the Air Force evaluation and states  that  he
had three previous enlistments that resulted in honorable discharges
(1968-1972, 1972-1976, 1976-1980) not two as  previously  stated  on
the advisory opinion.

He realizes the verdict stands and no precedent can  be  established
now on these matters.  He asks  that  these  documents  be  reviewed
before considering whether or not clemency on sentence is in order.

The assignment of errors and brief on his behalf fairly sums up some
of the points he wishes would be  considered.   The  three  negative
urinalysis and negative search are the other  officially  documented
points he wishes to convey.  Also note, this search  was  predicated
on his use and possession of marijuana and the theft  of  government
property.  He asks, if this  search  was  authorized  prior  to  the
search, why stolen government property?  He states, as  head  medic,
the hospital commander cleared him to have the First Aid Kit at  his
residence; it was not  stolen.   This  shows  the  authorization  to
search was completed after the search as there is no further mention
of stolen property prior to or after the search.  He states,  again,
this shows the  extent  that  the  government  went  to  secure  his
conviction.  The Board should also note he never tested positive for
marijuana nor was any marijuana taken from him.

He states that there are several other points he would like to bring
up which he feels is the main reason for this whole situation  going
the way it went.

The Prosecutor,  Captain  C---  was  vindictive  towards  him  on  a
personal level.  He believes due to two prior conflicts he had  with
him.

He also requests review of his APRs covering the time period of  his
alleged misconduct.

A copy of applicant’s response, with  attachments,  is  attached  at
Exhibit F.

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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 error or injustice.  After reviewing  the  evidence
of record, we are not persuaded that the applicant’s records are  in
error or  that  he  has  been  the  victim  of  an  injustice.   The
applicant’s discharge had its basis in his trial and conviction by a
military court.  We have noted the applicant’s arguments  concerning
the evidence and events related to these events and are  constrained
to note that this Board is not empowered to set-aside or reverse the
findings of guilty by a court-martial.  In other  words,  while  the
applicant may believe the evidence is questionable,  it  is  a  fact
that the military court found it sufficient to  reach  the  findings
they did in his  case  and  that  the  findings  and  sentence  were
approved and  affirmed  upon  review.   In  cases  of  this  nature,
according to Title 10, United States Code, Section 1552(f),  actions
by this Board are limited to corrections to the  record  to  reflect
actions taken by the reviewing officials and action on the  sentence
of the court-martial for the purpose of clemency.  There is  nothing
in the evidence provided, other than the applicant’s unsubstantiated
allegations, which would lead us to believe that  a  change  to  the
actions  of  any  of   the   reviewing   officials   is   warranted.
Furthermore, he has not provided any evidence of a successful  post-
service adjustment which could lead us to conclude that clemency  is
warranted on that basis.  In view  of  the  above,  the  applicant’s
request 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 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 19 March 2003, under the provisions of AFI  36-
2603:

                 Mr. Roscoe Hinton, Jr., Panel Chair
                 Ms. Dorothy P. Loeb, Member
                 Ms. Patricia D. Vestal, Member

The following documentary evidence was considered:

      Exhibit A.  DD Form 149, dated 25 Oct 02, w/atchs.
      Exhibit B.  Applicant's Master Personnel Records.
      Exhibit C.  FBI Report.
      Exhibit D.  Letter, AFPC/DPPRS, dated 13 Nov 02.
      Exhibit E.  Letter, AFBCMR, dated 22 Nov 02.
      Exhibit F.  Applicant’s Response, dated 17 Dec 02, w/atchs.




                                  ROSCOE HINTON JR.
                                  Panel Chair