RECORD OF PROCEEDINGS
             AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS

IN THE MATTER OF:      DOCKET NUMBER:  BC-2003-02967

      XXXXXXX    COUNSEL:  NONE

      XXXXXXX    HEARING DESIRED:  YES

_________________________________________________________________

APPLICANT REQUESTS THAT:

His bad conduct discharge (BCD) be upgraded.

_________________________________________________________________

APPLICANT CONTENDS THAT:

Since his discharge over 15 years ago, he has  been  a  productive  citizen,
has not had any legal problems and has graduated from  college.   Currently,
he is pursuing a MBA in Human Resource Management.  He would like  to  teach
and cannot with this discharge on his record.  He has  repaid  his  debt  to
society many times.

In support of his  request,  applicant  provided  a  personal  statement,  a
letter from SAF/MRBR, a copy of DD Form 293, a Shaw College transcript,  and
letters of support from his teachers.

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

_________________________________________________________________

STATEMENT OF FACTS:

Applicant enlisted in the Regular Air Force on  20  November  1986  and  was
progressively promoted to the grade of technical sergeant.  He was tried  by
a general court-martial on 10 May 1988 and found guilty of wrongful  use  of
cocaine in violation of Article 112(a), Uniform  Code  of  Military  Justice
and received a bad  conduct  discharge.   During  the  trial  and  pre-trail
stages, a military defense counsel represented him.

On 10 May 1988, the court sentenced the applicant to receive a  bad  conduct
discharge, confinement for four months, forfeiture  for  $250.00  per  month
for four months and reduction to the grade of airman  basic  (E-1).   On  10
January 1989, the convening authority approved  the  sentence  as  adjudged.
Because  his  approved  sentence  included  a  bad  conduct  discharge,  the
applicant’s convictions were reviewed by the Air  Force  Court  of  Criminal
Review on 22 September 1988.  The Court of Criminal
Review reassessed the applicant’s sentence because the trial judge erred  in
admitting a Letter of  Reprimand  issued  two  days  before  the  trial  was
scheduled to begin.  Having reassessed  the  sentence,  the  court  approved
only that portion  providing  for  a  bad  conduct  discharge,  four  months
confinement and reduction to airman basic.  On 12 December 1988, the  United
States Court of Martial Appeals declined to grant the  applicant’s  petition
for review. The applicant was discharged on 14 August 1989.

In response to the Board’s request,  the  Federal  Bureau  of  Investigation
(FBI) indicated that on the basis of the  information  provided,  they  were
unable to locate an arrest record pertaining to the applicant (Exhibit C).

_________________________________________________________________

AIR FORCE EVALUATION:

There  is  no  legal  basis  for  upgrading  applicant’s   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 in their  most  favorable  light  to  the
court and the convening authority.  These matters were considered in  review
of the sentence.  The applicant was thus  afforded  all  rights  granted  by
statute and regulation.  The applicant provides no compelling  rationale  to
mitigate the approved dishonorable discharge given the circumstances of  the
case.  Finally and of considerable  weight  is  the  fact  that  the  record
reveals the applicant was using cocaine even after being  formally  charged.
Hence, any suggestion he was the unfortunate victim of a one-time  lapse  in
judgment is unfounded.

While clemency is an option, there is no reason for the  Board  to  exercise
clemency in this case.  The applicant  did  not  serve  honorably.   He  was
thirty-five years old at the time of  his  offense  and  wore  the  rank  of
technical sergeant.  His peers and junior enlisted alike  expected  much  of
him.  There are consequences for criminal behavior  –  the  military  judge,
convening  authority  and  the  appellate  court  believed  a  bad   conduct
discharge was an appropriate consequence that accurately  characterized  his
military service and his crimes.  The applicant has provided no evidence  of
a clear error or injustice related to the sentence.

The applicant presents no evidence to warrant upgrading  of  the  discharge.
Nor does he demonstrate an equitable basis for relief.  Yet,  he  wants  his
DD Form 214 to reflect the same character of service as those  who  complete
their terms of enlistment and follow orders that separate them from  friends
and family for extended periods.



ALSA/JAJM complete evaluation is attached at Exhibit D.

_________________________________________________________________

APPLICANT'S REVIEW OF AIR FORCE EVALUATION:

A copy of the Air Force evaluation was forwarded  to  applicant  on       16
April 2004 for review and comment within 30  days.   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 to timely file.

3. After a thorough review of the evidence of record, we see no evidence  to
show that the applicant's discharge was erroneous or  unjust.   However,  we
recognize the adverse impact of the discharge the  applicant  received;  and
while it may have been appropriate at the time, we believe it  would  be  an
injustice  for  the  applicant  to  continue  to  suffer  its  effects.   In
consideration of the applicant's current age,  his  apparent  immaturity  at
the time of his enlistment, and no evidence that he has had  any  subsequent
involvement of a derogatory nature since his separation from the Air  Force,
we believe that corrective action is appropriate on the basis  of  clemency.
Accordingly, we recommend that  his  records  be  corrected  to  the  extent
indicated below.

4.    The applicant's case is adequately documented  and  it  has  not  been
shown that a personal appearance with or  without  counsel  will  materially
add to our understanding of the issues  involved.   Therefore,  the  request
for a hearing is not favorably considered.

_________________________________________________________________

THE BOARD RECOMMENDS THAT:

The pertinent military records of the Department of the Air  Force  relating
to APPLICANT, be corrected to show that at the time of his  discharge  on  2
August 1989, he was discharged with service characterized as general  (under
honorable conditions).

_________________________________________________________________

The following members of the Board considered AFBCMR Docket Number  BC-2003-
02967 in Executive Session on 3 June 2004, under the provisions of  AFI  36-
2603:

            Mr. Gregory H. Petkoff, Panel Chair
            Ms. Renee M. Collier, Member
            Ms. Martha A. Maust, Member

All members voted to correct the records,  as  recommended.   The  following
documentary evidence was considered:

      Exhibit A. DD Form 149, dated 17 Feb 04, w/atchs.
      Exhibit B. Applicant's Master Personnel Records.
      Exhibit C. FBI Report, dated 28 Apr 04.
      Exhibit D. Letter, AFPC/DPPRS, dated 2 Apr 04.
      Exhibit E. Letter, SAF/MRBR, dated 9 Apr 04.






                                   GREGORY H. PETKOFF
                                   Panel Chair



AFBCMR BC-2004-02967




MEMORANDUM FOR THE CHIEF OF STAFF

      Having received and considered the recommendation of the Air Force
Board for Correction of Military Records and under the authority of Section
1552, Title 10, United States Code (70A Stat 116), it is directed that:

      The pertinent military records of the Department of the Air Force
relating to XXXXXXX, XXXXXXX, be corrected to show that at the time of his
discharge on 2 August 1989, he was discharged with service characterized as
general (under honorable conditions).




      JOE G. LINEBERGER
      Director
      Air Force Review Boards Agency