RECORD OF PROCEEDINGS
             AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS


IN THE MATTER OF:      DOCKET NUMBER:  BC-2003-00765
                             INDEX CODE:  110.00

      APPLICANT        COUNSEL: None

      SSN                    HEARING DESIRED: No

_________________________________________________________________

APPLICANT REQUESTS THAT:

His bad conduct discharge (BCD) be upgraded to an honorable discharge.
_________________________________________________________________

APPLICANT CONTENDS THAT:

He served in the military for nine and one-half years.  He was given a
general court-martial for  one  bad  urinalysis.   He  had  two  prior
honorable discharges.  He worked for the  Inspector  General  and  his
work was exemplary.  He is currently homeless and  seeking  assistance
from Veterans Affairs (VA).

Applicant's complete submission,  with  attachments,  is  attached  at
Exhibit A.

_________________________________________________________________

STATEMENT OF FACTS:

Applicant enlisted in the Regular Air Force on 25 October 1979  for  a
period of four (4) years as an airman basic.   On  1  June  1983,  the
applicant reenlisted in the Air Force for a period of four years.

The applicant received two Letters of Reprimand for failure to go.

The applicant’s  NCO  status  was  vacated  due  to  substandard  duty
performance on 22 May 1986.

On 10 March 1987, the applicant was denied award of the Air Force Good
Conduct Medal (AFGCM) based on a review of his  Personnel  Record  and
Unfavorable  Information  File (UIF), for the period 16 December  1986
to 15 April 1987.

The applicant met all the eligible criteria  for  appointment  to  NCO
status.  His NCO status was reinstated on 5 August 1987.

General Court-Martial Order #12, dated  21  November  1988,  indicates
that the applicant was tried and  found  guilty  of  wrongful  use  of
cocaine and marijuana.  He was sentenced to a bad  conduct  discharge,
confinement for 13 months, forfeiture of  $250.00  per  month  for  13
months, and reduction in grade to  airman  basic.   The  sentence  was
adjudged on 31 August 1988.   The  convening  authority  approved  the
sentence and except for the part of the sentence extending to  a  BCD,
the sentence was to be executed.  General  Court-Martial  Order  #368,
dated 25 September 1989, affirmed the sentence and  directed  the  bad
conduct discharge be executed.

Applicant’s performance profile is listed below.

                 PERIOD ENDING          OVERALL EVALUATION

                      24 Oct 80              7
                      24 Oct 81              7
                       2 Aug 82              8
                       5 Jun 83              8
                       1 Jun 84              8
                       1 Jun 85              8
                       1 Jun 86              6
                       1 Jun 87              9
                       1 Jun 88              9

The applicant was discharged with service characterized as BCD  on  20
October 1989.  He served a total of nine years, three months  and  one
day of active  duty service.  He had lost time between 31 August  1988
through 25 May 1989.

_________________________________________________________________

AIR FORCE EVALUATION:

According to AFLSA/JAJM, the applicant was charged with a  single  use
of marijuana and multiple uses of cocaine,  in  violation  of  Article
112a, Uniformed  Code  of  Military  Justice  (UMCJ).   The  applicant
admitted to using  marijuana  and  cocaine  at  the  home  of  another
military member on 2 June 1988.  The applicant agreed to a urinalysis,
which established the  presence  of  both  drugs  in  the  applicant’s
system.  The applicant pled guilty to using marijuana and  cocaine  on
the one occasion and pled not guilty to any other  uses  of  marijuana
and cocaine.

On 7 March 1989, the Air Force Court of Military  Review  (now  called
the Air Force Court of Criminal  Appeals)  affirmed  the  findings  of
guilty and sentence.  On 16 August 1989, the applicant’s petition  for
review by the U.S. Court of Military
Appeals (now called the U.S. Court of Appeals for  the  Armed  Forces)
was denied.

AFLSA/JAJM states an application must be filed within  3  years  after
the error or injustice was discovered, or, with due diligence,  should
have been discovered.  An application may be denied on  the  basis  of
being untimely, however, an untimely filing  may  be  excused  in  the
interest of justice.  The applicant’s request comes 13 years after his
discharge.  He has  not  identified  an  error  on  injustice  in  the
processing of his discharge.

Under 10 USC Section 1552(f), which amended the basic correction board
legislation, the AFBCMR’s ability to correct records related to courts-
martial is limited.   Specifically,  Section  1552(f)(1)  permits  the
correction  of  a  record  to  reflect  actions  taken  by   reviewing
authorities  under  the  Uniform  Code  of  Military  Justice  (UCMJ).
Additionally, Section 1552(f)(2) permits  the  correction  of  records
related to action on the sentence of courts-martial for the purpose of
clemency.  Apart from these two  limited  exceptions,  the  effect  of
Section 1552(f) is that AFBCMR is without authority  to  reverse,  set
aside, or otherwise expunge a court-martial conviction  that  occurred
on or after 5 May 1950 (the effective date of the UMCJ).

They further state that there is no  legal  basis  for  upgrading  the
applicant’s discharge.  His sentence was within the prescribed  limits
and was a matter within the discretion of the court-martial and  could
have been mitigated by the convening authority or during the course of
the  appellate  review.   The  applicant  was  afforded   all   rights
guaranteed by statute and regulation.  He has provided  no  compelling
basis based on the circumstances of his  case  that  would  warrant  a
change in his discharge.

AFLSA/JAJM further states that while clemency is an option,  there  is
no reason for the Board to exercise clemency in the applicant’s  case.
The applicant did not serve honorably  during  this  enlistment,  even
before his drug use.  Two years  before  his  court-martial,  his  NCO
status was vacated.  He received two Letters of Reprimand  and  needed
close supervision.  The military judge, convening  authority  and  the
appellate  court  believed  a  BCD,  appropriately  characterized  the
applicant’s military  service  and  crimes.   The  applicant  has  not
presented sufficient evidence to warrant upgrading his  discharge  and
therefore they recommend the requested relief be denied.

A complete copy of the evaluation is attached at Exhibit C

_________________________________________________________________

APPLICANT'S REVIEW OF AIR FORCE EVALUATION:

A copy of the Air Force evaluation was forwarded to the applicant on 3
June 2003, respectively, for review and response.  As of this date, no
response has been received by this office.

_________________________________________________________________

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 of timely file.

3.    Insufficient relevant evidence has been presented to demonstrate
the existence of error or injustice.  After thoroughly  reviewing  the
evidence or record, we find no evidence to show that  the  applicant’s
discharge as a result of his conviction by court-martial was erroneous
or unjust.  The applicant’s contentions are duly  noted,  however,  he
has not submitted persuasive evidence to  support  these  contentions.
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 either an error or an 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 AFBCMR Docket Number BC-
2003-00765 in Executive Session on 22 July 2003, under the  provisions
of AFI 36-2603:

                       Mr. Gregory H. Petkoff, Panel Chair
                       Ms. Carolyn B. Willis, Member
                       Mr. James A. Wolffe, Member

The following documentary evidence was considered:

   Exhibit A.  DD Form 149, dated 12 Mar 03, w/atchs.
   Exhibit B.  Master Personnel Records.
   Exhibit C.  Letter, AFLSA/JAJM, dated 19 May 03.
   Exhibit D.  Letter, SAF/MRBR, dated 3 Jun 03.





                             GREGORY H. PETKOFF

                                        Panel Chair