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AF | BCMR | CY2003 | BC-2003-00167
Original file (BC-2003-00167.doc) Auto-classification: Denied


                       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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