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AF | BCMR | CY2003 | BC-2001-00310
Original file (BC-2001-00310.doc) Auto-classification: Denied

                       RECORD OF PROCEEDINGS
         AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS

IN THE MATTER OF:      DOCKET NUMBER:  BC-2001-00310
            INDEX CODE:  110.00

            COUNSEL:  NONE

            HEARING DESIRED:  NO


_________________________________________________________________

APPLICANT REQUESTS THAT:

His bad conduct discharge be upgraded.
_________________________________________________________________

APPLICANT CONTENDS THAT:

It appears the applicant believes he was unjustly punished.

In support of his request, the applicant submits a copy of his DD Form
214.  The applicant’s complete  submission,  with  attachment,  is  at
Exhibit A.
_________________________________________________________________

STATEMENT OF FACTS:

Applicant contracted his initial enlistment in the Regular  Air  Force
on 1 Apr 80.  He was progressively promoted  to  the  grade  of  staff
sergeant (E-5), with an effective date and date of rank of 1 Mar 86.

On 14 Mar 95, applicant was tried before a general court-martial at ---
 AFB.  He pled guilty to wrongfully using cocaine on divers  occasions
from on or about 1 Mar 94 to on or about 23  Sep  94.   He  was  found
guilty and sentenced to a bad conduct discharge, confinement for  four
(4) months and a reduction to the grade of airman  basic  (E-1).   The
sentence was approved by the convening authority on 24 May 95.   On  4
Mar 96, the Air Force Court of Criminal Appeals affirmed the  findings
and sentence.  On 12 Jul 96, the U.S. Court of Appeals for  the  Armed
Forces denied the applicant’s petition for review.

The applicant received a bad conduct discharge on 14 May 97 under  the
provisions of AFI 36-3208 (Court-Martial - General Court-Martial Order
No. --).  He had completed a total of 16 years, 10 months and  8  days
on active duty and was serving in the grade of airman basic  (E-1)  at
the time of discharge.  The  applicant’s  lost  time  was  during  the
period of 14 Mar 95 - 20 Jun 95.
_________________________________________________________________

AIR FORCE EVALUATION:

AFLSA/JAJM recommends the application be  denied.   JAJM  states  that
there is no legal basis for upgrading the applicant’s discharge.   The
applicant had the assistance of counsel in presenting extenuating  and
mitigating  matters  to  the  court  and  the   convening   authority.
Specifically, during  the  trial  and  pre-trial  stages,  a  military
defense counsel and  two  civilian  attorneys  represented  him.   The
applicant  was  thus  afforded  all  rights  granted  by  statute  and
regulation.   The  applicant  provides  no  compelling  rationale   to
mitigate the approved discharge given the circumstances of  the  case.
The applicant repeatedly used crack cocaine, which was revealed  twice
as a result of urinalysis testing.  The  maximum  punishment  for  the
offenses for which the applicant was  convicted  was  confinement  for
five years, forfeiture of all pay and allowances and reduction to  the
lowest grade.  The sentence was well within the legal limits  and  was
an appropriate punishment for the offenses committed.  While  clemency
is an option, there is no reason for the Board to exercise clemency in
this case.  The applicant did not serve  honorably  and  the  military
judge, convening authority and the  appellate  court  believed  a  bad
conduct discharge  was  an  appropriate  consequence  that  accurately
characterized his military service  and  his  crimes.   The  applicant
presents  no  evidence  to  warrant  upgrading  the  discharge.    The
AFLSA/JAJM evaluation is at Exhibit D.
_________________________________________________________________

APPLICANT'S REVIEW OF AIR FORCE EVALUATION:

A copy of the Air Force evaluation was forwarded to  applicant  on  28
Feb 03 for review and response.  As of this date, no response has been
received by this office (Exhibit E).
_________________________________________________________________

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.   We  reviewed  the  applicant’s
record and the circumstances surrounding his discharge  in  1987.   In
this respect, we note that the applicant’s discharge had its basis  in
his trial and conviction by a duly  constituted  military  court.   We
believe it is significant that a substantially harsher punishment  was
authorized under the UCMJ for the  offenses  of  which  the  applicant
stood convicted.   Therefore,  we  do  not  believe  he  was  unjustly
punished for his offenses as he asserts.   Considering  the  extremely
serious  nature  of  his  infractions  against  the  good  order   and
discipline  of  the  service,  we   agree   with   the   opinion   and
recommendation  of  the  Military  Justice  Division  and  adopt   the
rationale expressed as the basis for our decision that  the  applicant
has failed to sustain his burden that he has suffered either an  error
or an injustice.  In view of the above  and  absent  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  this  application  in
Executive Session on 22 May 03, under the provisions of AFI 36-2603:

                  Mr. Richard A. Peterson, Panel Chair
                  Mr. Laurence M. Groner, Member
                  Ms. Jean A. Reynolds, Member

The following documentary evidence was considered:

   Exhibit A.  DD Form 149, dated 23 Dec 02.
   Exhibit B.  Applicant's Master Personnel Records.
   Exhibit C.  Letter, AFLSA/JAJM, dated 13 Feb 03.
   Exhibit D.  Letter, SAF/MRBR, dated 28 Feb 03.




                                   RICHARD A. PETERSON
                                   Panel Chair

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