RECORD OF PROCEEDINGS
         AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS


IN THE MATTER OF:      DOCKET NUMBER:  BC-2003-03720
            INDEX CODE:  110.00

            COUNSEL:  NONE

            HEARING DESIRED:  NO


_________________________________________________________________

APPLICANT REQUESTS THAT:

His dishonorable discharge be upgraded to a general  or  an  honorable
discharge.

_________________________________________________________________

APPLICANT CONTENDS THAT:

He was rushed in court with  no  support  or  counsel.   He  paid  for
private counsel later.  The case against him was not proven.

Applicant did not submit any documents in support of the appeal.

Applicant's complete submission is attached at Exhibit A.

_________________________________________________________________

STATEMENT OF FACTS:

Applicant enlisted in the Regular Air Force on 17 November 1969 for  a
period of four years.  Prior  to  the  events  under  review,  he  was
progressively promoted to the grade of airman first class  (E-3).   He
received four  Enlisted  Performance  Reports  in  which  the  overall
evaluations were 7, 5, 5, and 4 based on a rating  system  of  “1”  to
“9”, “9” being the highest rating.

On 25 February 1970, the commander notified the applicant that he  was
proposing to impose  punishment  upon  him  pursuant  to  Article  15,
Uniform  Code  of  Military  Justice  (UCMJ).   The  reasons  for  the
punishment were:  The applicant  did,  at  Sheppard  Air  Force  Base,
Texas, on or about 5 February 1970,  behave  himself  with  disrespect
toward  his  superior  commissioned  officer  by  displaying  a   very
negative,  insubordinate  and  disrespectful  attitude,  while   being
counseled by  his  superior  commissioned  officer,  in  violation  of
Article 89, UCMJ.  Further investigation disclosed  that  he  did,  at
Sheppard Air  Force  Base,  on  or  about  19 February  1970,  without
authority, failed to go at the time prescribed to his appointed  place
of duty, to wit:  Building 386, Sheppard AFB, in violation of  Article
86, UCMJ.  The punishment consisted of the applicant being ordered  to
forfeit $25.00, and to serve 30 days of Correctional Custody.

On 20 March 1970, the commander notified the  applicant  that  he  was
proposing to impose  punishment  upon  him  pursuant  to  Article  15,
Uniform Code of Military Justice (UCMJ).  The reason for the punshment
was:  He did, at Sheppard AFB, TX, on or about 9  March  1970,  having
knowledge of a lawful order issued by SSgt G--- M. F--- to  clean  the
barracks, an order which it was his duty to obey,  fail  to  obey  the
same, in violation of Article 92 UCMJ.  The  punishment  consisted  of
reduction to the grade of airman basic.

On 9 November 1970, the applicant was evaluated by the  Department  of
Mental Health Services.   As  a  result  of  this  evaluation  it  was
determined that he did  not  have  a  psychiatric  disorder  requiring
action uder the provisions of AFM 35-4, but he did  have  a  character
and behavior disorder as described in AFM 39-12, Chapter 2, Para 2-4b,
which  was  best  classified  as   explosive   personality,   chronic,
unchanged.

On 1 December 1970, the commander notified the applicant that  he  was
proposing to impose  punishment  upon  him  pursuant  to  Article  15,
Uniform  Code  of  Military  Justice  (UCMJ).   The  reason  for   the
punishment was:  He did, at Sheppard Air  Force  Base,  Texas,  on  or
about 19 and 20 November 1970, at Sheppard AFB, TX, without authority,
fail to go at the time prescribed to his appointed place of  duty,  to
wit:  Building 197, supervised study,  in  violation  of  Article  86,
UCMJ.  The punishment consisted of the applicant being reduced to  the
grade of airman basic, but the  execution  of  that  portion  of  this
punishment which provides for reduction to airman basic was  suspended
until 30 May 1971, at which time, unless this  suspension  was  sooner
vacated, it would be remitted without further action.

On 23 January 1973, the commander notified the applicant that  he  was
proposing to impose  punishment  upon  him  pursuant  to  Article  15,
Uniform  Code  of  Military  Justice  (UCMJ).   The  reason  for   the
punishment was:  The applicant did, at Ramey AFB, Puerto Rico,  on  or
about 11 January 1973,  behave  himself  with  disrespect  toward  his
superior commissioned officer,  by  contemptuously  turning  from  and
walking away while he, the superior commissioned officer, was  talking
to him,  in  violation  of  the  UCMJ,  Article  89.   The  punishment
consisted of reduction to the grade of airman and an order to  perform
extra duty for 20 consecutive days, but the execution of that  portion
of  this  punishment  which  provided  for  reduction  to  airman  was
suspended until 1 June 1973, at which time, unless this suspension was
sooner vacated, it will be remitted without further action.

On 27-28 September 1973, the applicant was tried by a  general  court-
martial at Ramey Air Force Base, Puerto Rico.   He  was  charged  with
failing to obey a lawful general regulation by possessing 76.28  grams
of marijuana and by selling 409.7 grams of marijuana, in violation  of
Article 92, UCMJ.  The applicant was found guilty in a trial before  a
judge alone.  On 28 September 1973, the court sentenced him to receive
a dishonorable discharge, be confined for one year,  forfeit  all  pay
and allowances, and be reduced to  the  grade  of  airman  basic.   On
13 December 1973, the convening authority  approved  the  sentence  as
adjudged.  On 1 April 1974, that portion of the  applicant’s  sentence
in excess  of  nine  months  of  confinement  was  remitted  based  on
clemency.

Because his approved sentence included a dishonorable  discharge,  the
applicant’s conviction was reviewed by the  United  States  Air  Force
Court of Military Review (now called the Air Force Court  of  Criminal
Appeals).  On 5 April 1974, the Air Force  Court  of  Military  Review
affirmed the finding of guilty.  On 6 August 1974, United States Court
of Military Appeals (now the U.S.  Court  of  Appeals  for  the  Armed
Forces) denied the applicant’s petition  for  Grant  of  Review.   The
applicant was discharged on  5  September  1974  with  a  dishonorable
discharge.  He served 4 years, 3 months and 11 days  on  active  duty.
Time lost was the period 28 September 1973 through 4 April  1974  (187
days) due to confinement.

On 7 January 2004, AFPC/DPPRSP informed the applicant that  there  was
an error on his DD Form 214, Certificate of Release or Discharge  from
Active Duty, and another DD Form 214 had been completed to correct his
character of service to dishonorable, rather  than  under  other  than
honorable conditions as shown on the old DD Form 214.

Pursuant to the Board’s request, the Federal Bureau of  Investigation,
Clarksburg, West Virginia, provided an investigative report  which  is
attached at Exhibit C.

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AIR FORCE EVALUATION:

AFLSA/JAJM states that there is  no  legal  basis  for  upgrading  the
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 possessed and sold marijuana when he was  aware  it  was
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 four years, forfeiture of  all
pay and allowances, and reduction to the lowest enlisted  grade.   The
sentence was well within the  legal  limits  and  was  an  appropriate
punishment for the offenses committed.

While clemency is an option, there is  no  reason  for  the  Board  to
exercise clemency in this case.   Consequently,  the  use  of  illegal
substances may not be addressed in the  same  manner  as  in  civilian
criminal justice systems.

The military judge and the Air Force Court  of  Military  Review  were
convinced of the applicant’s guilt beyond  a  reasonable  doubt.   His
sentence is appropriate.  The applicant did not serve this  enlistment
honorably.   There  are  consequences  for  criminal  behavior.    The
military judge, convening authority and the appellate court believed a
dishonorable discharge was an appropriate consequence that  accurately
characterized his military service and his crime.  It would be  unjust
to change that characterization to one that hundreds of  thousands  of
airmen, who have served honorably,  also  carry.   The  applicant  has
provided no evidence of a clear error  or  injustice  related  to  the
sentence.  The applicant presents no evidence to warrant upgrading the
dishonorable discharge, nor has he demonstrated an equitable basis for
relief.  Therefore, they recommend denial of applicant’s request.

A complete copy of the evaluation is attached at Exhibit D.

_________________________________________________________________

APPLICANT'S REVIEW OF AIR FORCE EVALUATION:

On 16 January 2004, a copy of the Air Force evaluation  was  forwarded
to the applicant for review within 30 days;  on  20 February  2004,  a
copy of the Federal Bureau of Investigation (FBI) Report was forwarded
to the applicant for review within  14  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.  Insufficient relevant evidence has been presented  to  demonstrate
the existence of error or injustice.  After reviewing all the evidence
presented, we are not persuaded that action to upgrade the applicant’s
discharge based on clemency is appropriate.  The applicant’s discharge
had its basis in his trial and conviction by court-martial.   In  view
of the extreme seriousness of the misconduct he committed  (i.e.,  the
possession  and  sale  of  an  illegal  substance),  the   less   than
satisfactory overall quality of his service and his refusal to  accept
responsibility for his actions, we do  not  believe  the  clemency  is
warranted at the present time.

_________________________________________________________________

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 22 April 2004, under the provisions  of  AFI  36-
2603:

                 Mr. Robert S. Boyd, Panel Chair
                 Mr. John B. Hennessey, Member
                 Mr. Jay H. Jordan, Member

The following documentary evidence was considered:

      Exhibit A. DD Form 149, dated 10 Nov 03.
      Exhibit B. Applicant's Master Personnel Records.
      Exhibit C. FBI Report.
      Exhibit D. Letter, AFLSA/JAJM, dated 11 Dec 03.
      Exhibit E. Letter, SAF/MRBR, dated 16 Jan 04.




                             ROBERT S. BOYD
                             Panel Chair