RECORD OF PROCEEDINGS
             AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS

IN THE MATTER OF:      DOCKET NUMBER:  02-01345
            INDEX CODE:  131.09
            COUNSEL:  NONE

            HEARING DESIRED:  NO

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APPLICANT REQUESTS THAT:

His retirement grade of senior airman (E-4) be changed to reflect  technical
sergeant (E-6) and that he receive consideration for  reinstatement  to  the
grade of master sergeant (E-7).

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APPLICANT CONTENDS THAT:

The punishment he received as a result of his court-martial  conviction  for
marijuana use, which will continue until the year 2009, has  been  extremely
hard for him to accept mentally and physically because he is unable to  live
up to his own expectations.  The amount of retirement pay he will lose  over
a ten-year period is approximately $59,760.  He has  already  lost  $23,000,
which he feels is enough to pay back for one mistake.  Two similar cases  in
his squadron don't come  anywhere  near  the  punishment  he  received.   As
evidenced by his records, he had a great career  except  for  one  extremely
foolish  act,  his  punishment  was  justified,  but  continuing  punishment
through the next ten years of his retirement is  excessive  and  unjustified
when compared to his contributions.

In support of his request, applicant provided a personal statement,  a  copy
of his court  martial  worksheet,  a  copy  of  the  SAF  Personnel  Council
(SAF/PC) decision, and documentation associated with his request for  waiver
of discharge action.

_________________________________________________________________

STATEMENT OF FACTS:

Applicant contracted his initial enlistment in the Regular Air Force  on  24
Apr 79.  He was progressively promoted to  the  grade  of  master  sergeant,
having assumed that grade effective and with a date of rank of 1 Oct 95.

On 16 Dec 98, applicant was tried by a special  court-martial  for  wrongful
use of marijuana.  He was found guilty and sentenced  to  reduction  to  the
grade of senior airman, 3 months of hard labor without  confinement,  and  2
months restriction.  His sentence was approved on 18 Feb 99.  On 30 Mar  99,
the applicant submitted  an  application  for  voluntary  retirement  to  be
effective 1 May 99.  Section 8964, Title 10 United States Code,  allows  the
advancement of enlisted members on the Retired List to the highest grade  in
which they satisfactorily  served  on  active  duty  as  determined  by  the
Secretary of the Air Force.  On 26 Apr 99, the SAF/PC concluded that he  had
not served satisfactorily in the grade of master  sergeant,  but  did  serve
satisfactorily in the grade of technical sergeant and that he  will  advance
to that grade on the Retired List effective 24 Apr 09.   The  applicant  was
honorably retired from the Air Force on 30 Apr 99 in  the  grade  of  senior
airman.  He served 20 years and 7 days on active duty.

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AIR FORCE EVALUATION:

AFLSA/JAJM reviewed applicant's request and recommends denial.  JAJM  states
that the applicant was a senior NCO with 19 years of service at the time  he
provided a  urine  sample  that  tested  positive  for  the  presence  of  a
metabolite of marijuana.  The thrust of his defense at his  trial  was  that
he  had  a  good  military  character.   His  defense  introduced   Enlisted
Performance
Reports (EPRs) from 1994 - 1998 to  show  that  he  did  not  knowingly  use
marijuana.  Earlier EPRs  might  have  opened  the  door  to  show  that  he
provided a urine sample in 1993 which tested positive  for  methamphetamine.
Also, his National Agency Questionnaire, dated 23 May  95,  showed  admitted
use or  possession  of  marijuana  in  June  1975.   During  sentencing  the
applicant asked that the court members consider allowing him  to  remain  in
the Air Force.  The court members evidently favorably  considered  his  plea
as the sentence imposed did not include a bad conduct  discharge.   However,
the members did consider the three-grade reduction to be  appropriate.   The
officer and enlisted members were well aware how much  the  applicant  would
receive in  retirement  benefits  if  he  retired  as  an  E-7.   A  Monthly
Retirement Pay Estimate was introduced into evidence as a  defense  exhibit.
They took into account this information as well as the applicant's  military
record  and  decided  on  an  appropriate  sentence,  which  preserved   his
eligibility to retire albeit at a lower grade.  He got  what  he  asked  for
and should not now be heard  to  argue  for  a  different,  more  beneficial
punishment.

The AFBCMR's  ability  to  correct  records  related  to  courts-martial  is
limited.  Apart from the exceptions which permit correction of a  record  to
reflect actions taken by reviewing authorities  and  correction  of  records
related to action on the sentence  of  courts-martial  for  the  purpose  of
clemency, the  AFBCMR  is  without  authority  to  reverse,  set  aside,  or
otherwise expunge a court-martial conviction occurred on or after 5 May  50.
 The court-martial was properly conducted and he  was  afforded  the  rights
accorded by law.  He provided no evidence of  a  clear  error  or  injustice
related to the sentence.  He has already been the beneficiary  of  executive
clemency with the decision of the SAF/PC to advance  him  to  the  grade  of
technical sergeant upon his 30-year anniversary.  The JAJM evaluation is  at
Exhibit C.

AFPC/DPPRRP reviewed applicant's  request  and  recommends  denial.   DPPRRP
states that the law which allows for advancement when  active  service  plus
service on the retired list  totals  30  years,  is  very  specific  in  its
application and intent.  SAF/PC made  the  determination  that  he  did  not
serve satisfactorily in any grade higher  than  technical  sergeant,  within
the meaning on the law, and directed his advancement to that  grade  on  the
Retired List effective 24 Apr 09.  He is  not  entitled  to  advancement  to
master sergeant as the Secretary  has  determined  that  he  did  not  serve
satisfactorily in that grade.  There are no other provisions  of  law  which
would allow for advancement prior to completion of 30 years service  on  the
retired list.  The DPPRRP evaluation, with attachments, is at Exhibit D.

_________________________________________________________________

APPLICANT'S REVIEW OF AIR FORCE EVALUATION:

Copies of the Air Force evaluations were forwarded to the  applicant  on  18
Oct 02 for review and comment within 30 days.  As of this date, this  office
has received no response.

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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 that would warrant corrective  action.   The
Board majority is not persuaded by the evidence provided in support  of  his
appeal that the decision of the Personnel Council was improper  or  contrary
to the provisions of the governing regulations; or  that  the  decision  was
based on anything other than  his  own  misconduct.   Therefore,  the  Board
majority agrees with the opinions  and  recommendations  of  the  Air  Force
offices of primary responsibility and adopts their rationale  as  the  basis
for their conclusion that the applicant has not been the victim of an  error
or injustice.  In the absence of persuasive evidence to  the  contrary,  the
Board majority finds no compelling basis to recommend  granting  the  relief
sought in this application.

_________________________________________________________________




THE BOARD RECOMMENDS THAT:

A majority of the panel finds insufficient evidence of  error  or  injustice
and recommends the application be denied.

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The following members of the Board  considered  Docket  Number  02-01345  in
Executive Session on 15 Jan 03, under the provisions of AFI 36-2603:

      Mr. Michael K. Gallogly, Panel Chair
      Mr. Billy C. Baxter, Member
      Ms. Brenda L. Romine, Member

By a majority vote,  the  Board  voted  to  deny  the  relief  requested.
Mr. Gallogly voted, on the basis of clemency, to allow his retirement  in
the grade of Technical Sergeant, but did not desire to submit a  minority
report.  The following documentary evidence was considered:


    Exhibit A.  DD Form 149, dated 15 Apr 02, w/atchs.
    Exhibit B.  Applicant's Master Personnel Records.
    Exhibit C.  Letter, AFLSA/JAJM, dated 14 Aug 02.
    Exhibit D.  Letter, AFPC/DPPRRP, dated 15 Oct 02, w/atchs.
    Exhibit E.  Letter, SAF/MRBR, dated 18 Oct 02.




                                   MICHAEL K. GALLOGLY
                                   Panel Chair






MEMORANDUM FOR THE EXECUTIVE DIRECTOR, AIR FORCE BOARD
               FOR CORRECTION OF MILITARY RECORDS (AFBCMR)

SUBJECT:  AFBCMR Application of APPLICANT

      I have carefully reviewed the evidence of record and the
recommendation of the Board members.  A majority found that the applicant
had not provided sufficient evidence of error or injustice and recommended
the case be denied.  I concur with that finding and their conclusion that
relief is not warranted.  Accordingly, I accept their recommendation that
the application be denied.

      Please advise the applicant accordingly.




                                        JOE G. LINEBERGER
                                        Director
                                        Air Force Review Boards
Agency