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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