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AF | BCMR | CY2003 | BC-2002-02833
Original file (BC-2002-02833.doc) Auto-classification: Denied

                            RECORD OF PROCEEDINGS
             AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS


IN THE MATTER OF:      DOCKET NUMBERS:  BC-2002-02833
      INDEX CODE 105.01  105.06  106.04
            COUNSEL:  None

            HEARING DESIRED:  No

_________________________________________________________________

APPLICANT REQUESTS THAT:

Her 2001 bad conduct discharge (BCD) be upgraded.

_________________________________________________________________

APPLICANT CONTENDS THAT:

She has been out of trouble since the incident. She has been drug free
since Jul 00 and has become a certified nursing assistant.  She  plans
to go to nursing school and make a better life for herself.

The applicant’s complete submission is at Exhibit A.

_________________________________________________________________

STATEMENT OF FACTS:

The applicant entered active duty on 14 Oct 98 and was assigned to the
325th Medical Support Squadron at Tyndall AFB, FL, as  an  information
management apprentice.

On 14 Jun 00, she received  a  referral  Enlisted  Performance  Report
(EPR).  The overall rating was 3, and the rater’s  comments  indicated
the commander had twice reprimanded the applicant for a failed monthly
weigh-in and failure to maintain government  quarters.  The  applicant
provided a rebuttal.

She was subsequently tried at a general court-martial on 28 Sep 00 for
wrongful use of a drug known as Ecstasy more than once between  1  Jan
and 31 Jun 00. She and the convening  authority  had  entered  into  a
pretrial agreement wherein the applicant offered to plead  guilty,  to
waive her right to the Article 32 investigation, to request  trial  by
military judge alone, and to cooperate and testify truthfully in three
other courts-martial under a grant of immunity  in  exchange  for  the
convening authority approving no more than 7  months  of  confinement.
She was found guilty. She  was  sentenced  to  8-months’  confinement,
forfeiture of all pay and allowances, reduced from airman first  class
to airman basic, and discharged with a BCD.  In  accordance  with  the
pretrial agreement, the convening authority on 25 Oct 00  reduced  the
confinement to 7 months but otherwise approved the sentence.

The case was reviewed by the  Air  Force  Court  of  Criminal  Appeals
(AFCCA). On 29 Mar 01, AFCCA affirmed the findings of guilty  and  the
sentence. The applicant did not appeal. The BCD was  ordered  executed
on 26 Apr 01. The applicant was discharged on 1 May 2001.  She  had  2
years, 1 month and 1 day of active service.

_________________________________________________________________

AIR FORCE EVALUATION:

AFLSA/JAJM advises that Title 10,  USC,  Section  1552(f)  limits  the
AFBCMR’s  ability  to  correct  records  related  to   courts-martial.
Essentially, the Board is without authority to reverse, set aside,  or
otherwise expunge a court-martial  conviction  which  occurred  on  or
after 5 May 50, but the Board may change a court-martial sentence  for
the purpose of clemency. The Board should  not  exercise  clemency  in
this case because the applicant did not serve honorably. The  BCD  was
an appropriate consequence that accurately characterized her  military
service and crime. Denial is recommended.

A complete copy of the evaluation is at Exhibit C.

_________________________________________________________________

APPLICANT'S REVIEW OF AIR FORCE EVALUATION:

A complete copy of the Air  Force  evaluation  was  forwarded  to  the
applicant on 3 Jan 03 for review and comment within 30  days.   As  of
this date, this office has received no response.

_________________________________________________________________

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 a thorough review  of  the
evidence of record and applicant’s submission, we  are  not  persuaded
that her BCD should be upgraded. The applicant’s contentions are  duly
noted; however, we do not find these uncorroborated assertions, in and
by themselves,  sufficiently  persuasive  to  override  the  rationale
provided by the Air Force. The applicant’s service was not  honorable.
She received a referral EPR and was convicted by general court-martial
for use of a controlled substance. The applicant has  not  shown  that
the court-martial sentence was in error or unduly harsh. We  therefore
agree with the recommendation of the Air Force and adopt the rationale
expressed as the basis for our decision that the applicant has  failed
to sustain her burden  of  having  suffered  either  an  error  or  an
injustice. In view of the above and absent persuasive evidence to  the
contrary, we find no compelling basis to recommend granting the relief
sought.

_________________________________________________________________

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 3 April 2003 under the provisions of AFI 36-2603:

                 Mr. Jackson A. Hauslein, Jr., Panel Chair
                 Ms. Marcia Jane Bachman, Member
                 Mr. Christopher Carey, Member

The following documentary evidence relating to AFBCMR Docket Number BC-
2002-02833 was considered:

   Exhibit A.  DD Form 149, dated 9 Sep 02.
   Exhibit B.  Applicant's Master Personnel Records.
   Exhibit C.  Letter, AFLSA/JAJM, dated 5 Dec 02.
   Exhibit D.  Letter, SAF/MRBR, dated 3 Jan 03.




                                   JACKSON A. HAUSLEIN, JR.
                                   Panel Chair

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