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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