RECORD OF PROCEEDINGS
             AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS

IN THE MATTER OF:                 DOCKET NUMBER:  02-00523
            INDEX CODE:  110.00
            COUNSEL:  NONE

                                  HEARING DESIRED:  YES

___________________________________________________________________

APPLICANT REQUESTS THAT:

His bad  conduct  discharge  be  upgraded  to  general  (under  honorable
conditions) and his reenlistment eligibility (RE) code be changed  to  an
eligible code.

___________________________________________________________________

APPLICANT CONTENDS THAT:

Thirty years ago he was a very irresponsible teenager capable  of  making
bad judgments and many mistakes and deserves a second chance  and  to  be
forgiven for his past.

In support of the application, the applicant submits a personal letter, a
copy of his DD Form 214 (Report of Separation from Active Duty),  a  copy
of his birth certificate; copies of excerpts from  his  military  medical
records;  certificates  of  training  and  letters  of  appreciation  and
commendation from his son, employers, associates, and a congressman.

The applicant's complete submission, with attachments, is at Exhibit A.

___________________________________________________________________

STATEMENT OF FACTS:

On 30 Jun 71, applicant enlisted in the Regular Air Force in the grade of
airman basic (AB/E-1).  His highest grade held  was  airman  first  class
(A1C/E-3).  Applicant’s grade at time of discharge was airman basic (AB/E-
1).

The records reflect that applicant received two Article  15  punishments:
(1) on 10 April 1972, for leaving his appointed place of duty on 23 March
1972, and for failing to go at the time prescribed to his appointed place
of duty on 28 March 1972.  Punishment consisted of a suspended  reduction
in grade to airman and forfeiture of $50.  (2) 28 July  1972,  for  being
absent without authority from 21 July 1972 until 24  July  1972,  leaving
his appointed place of duty on 19 July 1972, without authority, and being
disorderly in station on 20 July 1972.  He was ordered to forfeit $50 per
month for two months and ordered into correctional custody for 30 days.

On 4 Sep 74, applicant was discharged with service characterized as under
other than honorable conditions.  He was issued  a  DD  Form  259AF  (Bad
Conduct Discharge Certificate).  He was credited with  1 year,  6 months,
and 27 days active service (excludes 582 days of lost time  due  to  AWOL
and confinement).  He was issued a reenlistment eligibility (RE) code  of
RE-2.

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

The relevant facts pertaining to the applicant’s court-martial for  being
AWOL and breach of restraint, and subsequent  court-martial  relating  to
the possession, distribution and use of heroin and wrongful  introduction
of heroin onto a military installation are contained  in  the  evaluation
provided by the Military Justice Division at Exhibit D.

___________________________________________________________________

AIR FORCE EVALUATION:

AFLSA/JAJM recommended denial of the  applicant’s  request  to  have  his
discharge upgraded to general under honorable conditions.  The applicant,
then an airman first class, was assigned to Carswell AFB TX.  On  13  Oct
72, the  applicant  was  convicted  during  a  special  court-martial  of
violations of Article 86, UCMJ, absent without leave (AWOL)  and  Article
134,  UCMJ,  Breach  of  Restraint.   He  was  sentenced  to   6   months
confinement, forfeiture of $150 pay  per  month  for  six  months  and  a
reduction  in  grade  to  airman  basic.   On  30 Nov 72,  applicant  was
reassigned to Lowry AFB CO.  On 22 Mar 73, a Board recommended  that  the
applicant be discharged with an undesirable  discharge.   While  awaiting
discharge, the applicant was placed under surveillance  for  the  use  of
drugs.

On 1 Jun 73, charges were preferred against the applicant  consisting  of
eight specifications in violation of Article 92, UCMJ,  relating  to  the
possession, distribution, and use of heroin and wrongful introduction  of
heroin onto a military  installation.   He  was  also  charged  with  one
specification of attempted distribution of heroin in violation of Article
80, UCMJ.  On 15-17 Aug 73, he  was  tried  by  a  general  court-martial
before a military judge  sitting  alone.   Contrary  to  his  pleas,  the
applicant was found guilty of the charge and eight  specifications  under
Article 92 and  not  guilty  of  the  attempted  distribution  charge  in
violation of Article 80.  He was sentenced to a bad conduct discharge, 16
months of confinement and total forfeitures of all  pay  and  allowances.
On 14 Dec 73, the convening authority disapproved the findings of  guilty
as to five of the specifications in violation of Article 92 and  approved
a sentence of a bad conduct discharge,  12  months  of  confinement,  and
forfeitures of $204 pay per month for 12 months.  On 6 May 74, the United
States Air Force Court of  Military  Review  affirmed  the  findings  and
sentence of the lower court.  On 15 Jul 74, the United  States  Court  of
Military Appeals denied the applicant’s Petition  for  Grant  of  Review.
According to applicant’s DD Form 214, on 4 Sep 74, he was discharged with
an under other than honorable conditions (UOTHC).  There is no  paperwork
in the file to indicate why the applicant was discharged  with  an  UOTHC
rather than the bad conduct discharge  that  had  been  affirmed  by  the
appellate court.

With regard to the applicant’s receipt  of  an  administrative  discharge
characterized as under other than honorable conditions, there is no paper
trail showing the substitution of an  administrative  discharge  for  the
punitive bad conduct discharge.  The reasonably complete file  shows  the
applicant was placed on excess leave at his request following his release
from confinement on 20 May 74.  The final court-martial order was  issued
on  26 Aug 74,  approving  the  BCD  and  ordering  it   executed.    The
applicant’s file contains an AF Form 100, Request and  Authorization  for
Separation, showing applicant was to be discharged on 4 Sep 74  with  the
block for UOTHC checked under Item 18, Type of Discharge.   The  DD  Form
214 dated 4  Sep  74  shows  service  characterized  as  UOTHC.   If  the
convening authority intended to substitute  an  administrative  discharge
for the punitive discharge, there  would  be  a  court-martial  order  so
directing.  The absence of such an order, coupled with  the  presence  of
the 26 Aug 74 order approving the BCD leads to the  conclusion  that  the
applicant was separated with an administrative discharge through clerical
error.  Such an error is to the applicant’s benefit.

There was no error or injustice in the sentence nor is there  any  reason
for the Board to exercise clemency in this case.   The  record  of  trial
indicates this case was fully litigated.  The military  judge  considered
all the facts and evidence and concluded beyond a reasonable  doubt  that
the applicant committed the offenses and believed his conduct warranted a
bad conduct discharge.  The convening authority granted partial  clemency
when taking action on his case by disapproving  the  findings  of  guilty
pertaining  to  five  of  the  specifications  under  Article  92,  UCMJ,
remitting a portion of his adjudged confinement  from  16  months  to  12
months and reducing the adjudged total forfeitures to forfeitures of $204
per month for six months.  In addition,  it  appears  the  applicant  was
discharged with a discharge characterized as UOTHC even  though  his  bad
conduct  discharge  was  approved  on  appellate  review.   Although  the
applicant should be commended for apparently turning his life  around,  a
correction should only be made when the evidence demonstrates an error or
a clear injustice.  Applicant did not serve  under  honorable  conditions
and  his  service  should  not  be  so  characterized.   He  has  already
benefited,    apparently    unintentionally,    by    being    discharged
administratively instead of by reason of a punitive discharge.  There  is
no merit in the applicant’s claim and they recommend the Board  deny  the
requested relief.

A complete copy of the evaluation is at Exhibit D.

HQ AFPC/DPPAE recommended denial.  They addressed the applicant’s request
to  have  his  reenlistment  eligibility  (RE)  code  changed  to   allow
enlistment in the Air Force Reserve.

The applicant was discharged under other than honorable conditions  after
serving 1 year, 6 months and 27 days total service.  In  accordance  with
AFR 35-16, which was in affect during his time of service, he received RE
code  2.   This  RE  code  identifies  him  as   being   ineligible   for
reenlistment.

The applicant has not  provided  any  new  evidence  that  satisfactorily
indicates that an injustice has occurred by giving him RE code 2.

A complete copy of the evaluation is at Exhibit E.

___________________________________________________________________

APPLICANT'S REVIEW OF AIR FORCE EVALUATION:

By letter dated 28 Oct 02, applicant requests that the Board  excuse  his
untimely filing.  He also explained  the  circumstances  surrounding  the
events cited in the FBI Report of Investigation.

Applicant’s complete response is at Exhibit G.

___________________________________________________________________

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
evidence of record and that  provided  by  the  applicant,  we  found  no
evidence that the actions taken to effect his discharge were improper  or
contrary to the provisions of the governing regulations in effect at  the
time, or that the actions taken  against  the  applicant  were  based  on
factors other than his own misconduct.  The Board commends the  applicant
on his accomplishments since  leaving  the  service  and  noted  that  it
appears he has become a productive member  of  his  community.   However,
based on his overall record of service, and in view of  the  contents  of
the FBI Report of Investigation, we are not persuaded that an upgrade  of
the  characterization  of  his  discharge  to  general  under   honorable
conditions is warranted on the basis of clemency or that the assigned  RE
code should be changed.  Having found insufficient evidence of  an  error
or injustice with regard to the actions that occurred while the applicant
was a military  member,  we  conclude  that  no  basis  exists  to  grant
favorable action on his requests.

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.

___________________________________________________________________

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 AFBCMR  Docket  Number  02-
00523 in Executive Session on 6 March 2003, under the provisions  of  AFI
36-2603:

      Mr. Joseph A. Roj, Panel Chair
      Ms. Barbara J. White-Olson, Member
      Mr. Roscoe Hinton Jr., Member

The following documentary evidence was considered:

    Exhibit A.  DD Form 149, dated 11 Feb 02, w/atchs.
    Exhibit B.  Applicant's Master Personnel Records.
    Exhibit C.  FBI Report of Investigation.
    Exhibit D.  Letter, AFLSA/JAJM, dated 21 Jun 02.
    Exhibit E.  Letter, HQ AFPC/DPPAE, dated 8 Oct 02.
    Exhibit F.  Letter, SAF/MRBR, dated 11 Oct 02.
    Exhibit G.  Letter, Applicant, dated 28 Oct 02, w/atchs.




                                   JOSEPH A. ROJ
                                   Panel Chair