RECORD OF PROCEEDINGS
AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS
IN THE MATTER OF: DOCKET NUMBER: BC-2003-00167
INDEX CODE: 106.00, 110.02
COUNSEL:
HEARING DESIRED: NO
_________________________________________________________________
APPLICANT REQUESTS THAT:
His bad conduct discharge (BCD) be upgraded to general (under
honorable conditions).
_________________________________________________________________
APPLICANT CONTENDS THAT:
He makes no contentions.
Applicant’s complete submission is at Exhibit A.
_________________________________________________________________
STATEMENT OF FACTS:
The applicant entered into the Air Force on 25 February 1970 and was
progressively promoted to the grade of technical sergeant.
He was tried at a general court-martial on 2-3 March 1988. He was
charged with the use of cocaine, in violation of Article 112a, UCMJ.
The applicant was found guilty in a trial before members. On 3 March
1988, the court sentenced him to a BCD, confinement for one year,
forfeitures of $200.00 per month for one year, and reduction to the
grade of airman basic. On 25 May 1988, the convening authority
approved the sentence.
His case was then reviewed by the United States Air Force Court of
Military Review, which is now called the Air Force Court of Criminal
Appeals. On 28 July 1988, the Air Force Court of Military Review
affirmed the findings of guilty and the sentence as approved by the
convening authority. The applicant was discharged with a BCD on 31
January 1989. The applicant’s DD Form 214 is dated 28 February 1989
and reflects a BCD. He served 18 years and 3 months on active duty.
Pursuant to the Board’s request, the Federal Bureau of Investigation,
Clarksburg, WV, provided a copy of an Investigation Report pertaining
to the applicant, which is attached at Exhibit C.
_________________________________________________________________
AIR FORCE EVALUATION:
AFLSA/JAJM recommends denial. The applicant presents no basis for
upgrading his discharge. The appropriateness of the applicant’s
sentence, within the prescribed limits is a matter within the
discretion of the court martial and may be mitigated by the convening
authority or within the course of the appellate review process. The
applicant had the assistance of counsel in presenting extenuating and
mitigating matters to the court, and the convening authority. The
applicant provides no compelling rationale to mitigate the approved
punitive discharge given the circumstances to the case.
The applicant used cocaine despite knowing it is illegal. For that
offense, the applicant was tried by the appropriate forum-a general
court-martial. The maximum punishment authorized for the offense for
which the applicant was convicted was a dishonorable discharge,
confinement for five years, forfeiture of all pay and allowance, and
reduction to the lowest enlisted grade. The sentence was well within
the legal limits and was appropriate punishment for the offense
committed.
While clemency is an option, there is no reason for the Board to
exercise clemency in this case. It is important to note that clemency
was granted on 31 October 1988 as a result of the convening
authority’s action remitting any confinement remaining after 1
November 1988.
The AFLSA/JAJM evaluation is at Exhibit D.
_________________________________________________________________
APPLICANT'S REVIEW OF AIR FORCE EVALUATION:
A copy of the Air Force evaluation was forwarded to the applicant on
28 March 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 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 an error or injustice warranting an upgrade of his
discharge. After careful consideration of the available evidence, we
found no indication 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.
Therefore, we agree with the opinion and recommendation of the Air
Force office of primary responsibility and adopt their rationale as
the basis for our conclusion that the applicant has not been the
victim of an error or injustice. Therefore, in the absence of
evidence to the contrary, we find no compelling basis to recommend
granting the relief sought in this application.
_________________________________________________________________
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-2003-
00167 in Executive Session on 1 July 2003, under the provisions of AFI
36-2603:
Ms. Brenda L. Romine, Panel Chair
Ms. Marilyn Thomas, Member
Mr. Grover L. Dunn, Member
The following documentary evidence was considered:
Exhibit A. DD Form 149, dated 13 Jan 03.
Exhibit B. Applicant's Master Personnel Records.
Exhibit C. FBI Report.
Exhibit D. Letter, AFLSA/JAJM, dated 5 Mar 03.
Exhibit E. Letter, SAF/MRBR, dated 28 Mar 03.
BRENDA L. ROMINE
Panel Chair
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