RECORD OF PROCEEDINGS
             AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS


IN THE MATTER OF:      DOCKET NUMBER: BC-2002-00690

            COUNSEL:  R. CHARLES JOHNSON

            HEARING DESIRED:  NO

_________________________________________________________________

APPLICANT REQUESTS THAT:

His Bad Conduct Discharge (BCD) be upgraded to a discharge  under  honorable
conditions.

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THE APPLICANT CONTENDS THAT:

Equitable   considerations   indicate   that   his   discharge   should   be
recharacterized as being under honorable conditions.

The applicant states that he  was  young  and  immature  when  the  offenses
occurred.  While he  was  on  leave  in  California,  he  experimented  with
marijuana and again when he returned to his duty station at  the  insistence
of his roommate  and  several  civilian  friends.   He  occasionally  smoked
marijuana when it was available  at  parties,  but  never  made  efforts  to
procure it.  His roommate produced some  Lysergic  Acid  Diethylamide  (LSD)
at a party and persuaded him to take some of it.  An  Air  Force  Office  of
Special Investigation (AFOSI) agent was present at the  party  and  reported
his LSD use.  He  was  interviewed  by  the  AFOSI  the  following  day  and
immediately admitted his wrongful drug use.  Consideration should  be  given
to the fact that he was not the instigator of the  offenses,  but  merely  a
follower.  The Board should also consider that the offenses were  relatively
minor and he acknowledged his wrongdoing at the earliest possible stages  of
the investigation.   Furthermore,  the  military  judge  indicates  that  he
should be considered for the Return to Duty Program (RTDP).   The  life-long
burden of a BCD is overly severe.

In support of the appeal, the applicant submits his  personal  statement,  a
statement from his parents, and  documentation  regarding  his  post-service
activities  (i.e.,  college  transcript,  letters  of  recommendation,   and
statements from employers).

Applicant’s complete submission, with attachments, is at Exhibit A.

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STATEMENT OF FACTS:

The applicant enlisted in the Regular Air Force for a period of  four  years
on 11 September 1996.

On 27 February 1998, he was charged with three specifications  of  violating
Article 112a of the Uniform Code of Military Justice (UCMJ).   Specifically,
for wrongfully using LSD on 5 December 1997; for wrongfully using  marijuana
on divers occasions between 1 May 1997 and 21 November 1997; and  wrongfully
possessing marijuana on 5 December 1997.

He was tried by a general court-martial on 3 April 1998  before  a  military
judge for the three specifications of violating Article 112a  of  the  UCMJ.
He was represented by his  military  defense  counsel  and  entered  into  a
pretrial agreement with the convening authority that, in  exchange  for  his
pleas of guilty, the convening authority  would  cap  confinement  at  eight
months.  The military  judge  sentenced  him  to  a  BCD,  seven  months  of
confinement, and reduction to the grade of E-1.

The final court-martial order was issued on 12  March  1999,  directing  the
BCD be executed.

He was discharged on 18 March  1999,  with  a  bad  conduct  discharge.   He
completed 2 years and 16 days of active service, which  excludes   174  days
of lost time for confinement during  the  period  3 April  1998  through  23
September 1998.

The United States Air Force Court of Criminal Appeals affirmed the  findings
and sentence on 8 December 2000.

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AIR FORCE EVALUATION:

AFLSA/JAJM recommends the  application  be  denied.  AFLSA/JAJM  states,  in
part, that the applicant’s wrongful use of marijuana  and  LSD  are  serious
offenses.  As such, a general court-martial was  appropriate.   His  overall
military record, his youth and immaturity,  and  his  admission  of  illegal
drug use were all considered in determining  an  appropriate  sentence.   He
has provided no legal justification or excuse for  his  wrongful  drug  use.
Although the military judge made an oral recommendation that  the  applicant
be considered for the RTDP, he also stated that he would further review  and
decide whether to make a written recommendation to the  convening  authority
at the time he authenticated the  record  of  trial.   However,  no  written
recommendation was made.   Furthermore,  the  convening  authority  had  the
applicant’s request before him at the time he took action  on  the  sentence
and did not place him in the RTDP.  The applicant could have applied to  the
Clemency and Parole Board within  30  days  after  the  convening  authority
action; however, he is silent as to whether he applied.  The  applicant  may
also apply for a Presidential pardon under the provisions of Title 28,  Code
of Federal Regulations, Section  1.1.   While  the  Board  may  correct  the
applicant’s record related to the action taken by  the  reviewing  authority
and on the sentence for the  purpose  of  clemency,  the  Board  is  without
authority to reverse, set aside,  or  otherwise  expunge  the  court-martial
conviction.  In the  applicant’s  case,  there  is  no  reason  to  exercise
clemency.

The AFLSA/JAJM evaluation is at Exhibit C.

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APPLICANT’S REVIEW OF AIR FORCE EVALUATION:

The applicant’s counsel states that the evaluation fails to point  out  that
not all alleged drug offenses are of the same degree  of  seriousness.   The
applicant was not selling or manufacturing drugs  and  was  not  a  frequent
drug user.  In addition, there is no evidence  that  he  ever  searched  for
drugs on his own.  The evidence used in support of the charge of  wrongfully
using marijuana  came  solely  from  the  applicant’s  own  admission.   The
investigation was not about his off-duty marijuana use, but his LSD  use  at
a  party.   Similarly,  the  charge  relating  to  wrongful  possession   of
marijuana was based entirely on residue found on drug paraphernalia  in  his
apartment.  No actual marijuana was found in  his  apartment.   Furthermore,
the evaluation fails  to  address  the  failure  of  the  applicant’s  trial
defense counsel to bring the matter of the RTDP  to  the  attention  of  the
convening authority or assist the applicant in applying to the Clemency  and
Parole Board.  In the Board’s consideration of Docket Number 98-01606,  they
based  their  decision  on  equitable  considerations   and   upgraded   the
applicant’s discharge to fully honorable and Reenlistment  Eligibility  (RE)
code to 1J.  In the case of an individual that  had  a  civilian  conviction
for possession of more than one ounce of marijuana and letters of  reprimand
for failure to repair and failure to get a  haircut  (AFDRB  78-01670),  the
Air  Force  Discharge  Review  Board  (AFDRB)  upgraded   the   individual’s
undesirable discharge.  The AFDRB also upgraded an undesirable discharge  to
fully honorable of an individual that had smoked marijuana on more than  one
occasion (AFDRB 78-01731).

The applicant’s complete response is at Exhibit E.

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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 timely filed.

3.  Insufficient relevant evidence has been  presented  to  demonstrate  the
existence of error or injustice.  After thoroughly  reviewing  the  evidence
of record and  noting  the  applicant’s  complete  submission,  we  find  no
evidence of  error  or  injustice.   In  this  respect,  we  note  that  the
applicant’s discharge appears to be in compliance  with  the  governing  Air
Force Instruction in effect at the time of his  separation.   The  applicant
was afforded all the rights to which entitled and the general  court-martial
findings were affirmed by the United States  Air  Force  Court  of  Criminal
Appeals.  The contentions raised by the applicant’s counsel are duly  noted;
however,  we  do  not  find  these  assertions,  in   and   by   themselves,
sufficiently persuasive to override the rationale provided by the Air  Force
Military Justice Division.  The Military  Justice  Division  has  adequately
addressed the issues of this case and  we  agree  with  their  opinions  and
adopt the rationale expressed  as  the  basis  for  our  decision  that  the
applicant  has  failed  to  sustain  his  burden  that  his  separation  was
inappropriate.  There being insufficient evidence to the contrary,  we  find
no compelling basis to recommend granting the relief sought.

4.  We also find insufficient evidence to warrant a recommendation that  the
discharge be upgraded on the basis of  clemency.   We  have  considered  the
applicant’s overall quality of service, the seriousness of the  events  that
precipitated the  discharge,  his  pretrial  agreement,  and  the  available
evidence related to his post-service  activities  and  accomplishments.   On
balance, we do not believe that clemency is warranted.

5.  The applicant’s counsel cites a case previously decided  by  this  Board
and two cases previously decided by the Air  Force  Discharge  Review  Board
(AFDRB) asserting, in essence, that similar  clemency  consideration  should
be applied to the applicant’s case and the requested relief be granted.   We
disagree.  In this respect, we note that each  case  before  this  Board  is
considered on its own merits, and precedent does not bind us.  While  we  do
strive for consistency in the manner in  which  evidence  is  evaluated  and
analyzed, we are not bound to recommend relief in  one  circumstance  simply
because the situation  being  reviewed  appears  similar  to  another  case.
Notwithstanding, we  have  reviewed  the  cases  cited  by  the  applicant’s
counsel and based on the seriousness of the applicant’s offense, we are  not
persuaded that he has been the victim of an error or  injustice  to  warrant
favorable consideration of his request.  In the cited AFBCMR case the  Board
found no impropriety  in  the  discharge  characterization;  however,  as  a
matter of equity and on the basis of clemency,  determined  that  corrective
action was appropriate.  In the applicant’s case, as  indicated  above,  the
Board  considered  the  applicant’s  overall   quality   of   service,   the
seriousness of the events that  precipitated  the  discharge,  his  pretrial
agreement,  and  the  available  evidence  related   to   his   post-service
activities and accomplishments,  and  does  not  believe  that  clemency  is
warranted.   Furthermore,  in  the  AFDRB  case  cited  by  the  applicant’s
counsel, the AFDRB determined that in light of the member’s  overall  record
and evidence to substantiate that his involvement with civilian  authorities
was  a  one  time  incident,  there  was  sufficient  evidence  to   warrant
recharacterization of his discharge to General.  Unlike the applicant,  this
individual  did  not  use  LSD  and  had  voluntarily  completed  the   Drug
Rehabilitation Program.  We have contacted  the  Pentagon  Reading  Room  to
obtain a copy of the Record of  AFDRB  Hearing  concerning  AFDRB  78-01670;
however, they have indicated that they do not have a copy of the case.

_________________________________________________________________

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  BC-2002-00690
in Executive Session on 23 January 2003 under  the  provisions  of  AFI  36-
2603:

                       Ms. Cathlynn Sparks, Panel Chair
                       Mr. John E. B. Smith, Member
                       Mr. Joseph A. Roj, Member

The following documentary evidence was considered:

    Exhibit A.  DD Form 149, dated 20 Feb 02, w/atchs.
    Exhibit B.  Applicant's Master Personnel Records.
    Exhibit C.  Letter, AFLSA/JAJM, dated 17 May 02.
    Exhibit D.  Letter, SAF/MRBR, dated 28 Jun 02.
      Exhibit E.  Letter, Counsel, dated 9 Jul 02.




                                   CATHLYNN SPARKS
                                   Panel Chair