RECORD OF PROCEEDINGS
             AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS

IN THE MATTER OF:                       DOCKET NUMBER:  BC-2003-03784
                                       INDEX CODE:  110.02
      XXXXXXXXXXXXXXXXXXX               COUNSEL: NONE

      XXXXXXXXXXXXX                     HEARING DESIRED:  NO

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APPLICANT REQUESTS THAT:

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

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APPLICANT CONTENDS THAT:

His active duty job  performance  was  outstanding.   He  received  numerous
letters of appreciation.   He  has  been  diagnosed  as  having  a  service-
connected mental illness, which has left him disabled.

In support of his application, he provided a DD Form  293,  Application  for
the Review of Discharge or Dismissal From the Armed  Forces  of  the  United
States.  A copy of the applicant’s complete submission  with  attachment  is
at Exhibit A.

_________________________________________________________________

STATEMENT OF FACTS:

On 29 March 1995, the applicant enlisted in the Regular  Air  Force  at  the
age of 20 in the grade of airman basic (E-1) for a  period  of  four  years.
He was progressively promoted to the  grade  of  airman  first  class  (E-3)
effective and with a date of rank of 29 July 1996.  The  applicant  received
two enlisted performance reports  from  the  period  29  March  1995  to  28
November 1997 with overall ratings of four, and two (referral report).   The
applicant also received  five  letters  of  counseling  and  one  letter  of
reprimand from the period 22 November 1995 to 29 May 1997.

On 1 August 1997, his commander notified the  applicant  of  his  intent  to
impose nonjudicial punishment for dereliction of duties.  On 8 August  1997,
the  applicant  accepted  non-judicial  punishment,  submitted   a   written
presentation, and requested to make an  oral  presentation.   The  commander
determined the applicant had committed the offense alleged and, on 8  August
1997, imposed punishment consisting of a reduction in grade  to  airman  and
forfeiture of $100 per  month  for  two  months.   The  reduction  in  grade
portion of the punishment was suspended until  7  February  1998,  at  which
time, unless sooner vacated; it was to be remitted without  further  action.
On 12 August 1997, the applicant chose not to appeal the decision.

On 12 May 1998, the applicant was tried at a general court-martial  for  use
of a controlled substance.  He pled guilty to wrongful  use  of  cocaine  in
violation of the Uniformed Code of Military Justice  (UCMJ),  Article  112A.
His plea of guilty resulted in  a  sentence  of  a  bad  conduct  discharge,
reduction to the grade of airman basic (E-1), confinement for 179 days,  and
forfeiture of $366 pay per month for five months.   On  30  June  1998,  the
convening authority approved his sentence; except for the forfeiture,  which
was reduced to $249, pay per month for five months.  On  6  June  2000,  the
United States Air Force Court  of  Criminal  Appeals  (AFCCA)  approved  the
findings and sentence as correct in law and  fact.   On  21  May  2001,  the
United States Court of Appeals for the Armed Forces  affirmed  the  decision
of the AFCCA.

The applicant was discharged with a  bad  conduct  discharge  on  14 January
2002 with a separation code of JJD  (conviction  by  court-martial  -  other
than  desertion)  and  a  reenlistment  code  of  2M  (serving  sentence  or
suspended court-martial sentence; or separated while  serving  or  suspended
court-martial sentence).  He was credited with 6 years,  9  months,  and  15
days of active duty service.

Examiner’s Note:  On 8 December 2003, pursuant to the Board’s  request,  the
applicant was contacted to provide military medical records to  support  his
claim of mental illness after  the  Department  of  Veterans  Affairs  (DVA)
denied having any of the applicant’s records on file.  As of this date,  the
applicant has not responded.

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AIR FORCE EVALUATION:

AFLSA/JAJM recommends  denial.   JAJM  states  that  under  10  USC  Section
1552(f), which amended the basic  corrections  board  legislation,  the  Air
Force Board  for  Corrections  of  Military  Record’s  (AFBCMR)  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  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 the AFBCMR  is
without authority to reverse, set-aside,  or  otherwise  expunge  a  courts-
martial conviction that occurred on or after 5 May 1950 (the effective  date
of the UCMJ).

JAJM states that the applicant is not contending that a specific  error  has
occurred which requires the  correction  of  his  court-martial  record  and
there is no indication in the  record  of  such  an  error.   The  applicant
admitted use of cocaine on numerous occasions  due  to  stress  from  taking
care of his ill mother and baby.  He stated at trial  that  the  demands  of
helping his girlfriend with the child and taking care of his mother  was  so
stressful that he turned to alcohol and eventually  cocaine.   There  is  no
indication in the record of trial that the applicant suffered from a  mental
illness at the time of commission of the offense  or  at  the  time  of  the
trial.  The military judge and the Air Force Court of Military  Review  were
convinced of the applicant’s guilt beyond a reasonable doubt.  The  sentence
he received was well within the legal limits and the bad  conduct  discharge
was appropriate punishment for the offense committed.

It is JAJM’s opinion that while clemency is an option; there  is  no  reason
for the Board to exercise clemency in this  case.   The  applicant  did  not
serve honorably.  There are  consequences  for  criminal  behavior  and  the
court members, convening authority, and the  Air  Force  Court  of  Military
Review believed a bad conduct discharge was an appropriate consequence  that
accurately characterized his military service and his crime.  JAJM  believes
it would be unjust to change that characterization to one that  hundreds  of
thousands of airmen, who have served honorably, also carry.   The  applicant
presents no evidence to warrant upgrading the  bad  conduct  discharge,  nor
has he demonstrated an equitable basis for relief.  The JAJM  evaluation  is
at Exhibit C.

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APPLICANT'S REVIEW OF AIR FORCE EVALUATION:

A copy of the Air Force evaluation was forwarded to the  applicant  on  20
February 2004 for review and comment within 30 days (See Exhibit  D).   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 timely filed.

3.  Insufficient relevant evidence has been presented  to  demonstrate  the
existence of probable 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  use  an
illegal substance), the fact that his service record was not as meritorious
as he alleges, and the short period of time since his separation, we do not
believe a sufficiently lengthy period of time has elapsed  to  warrant  the
exercise of clemency at the present time.

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

            Mr. Michael K. Gallogly, Panel Chair
            Ms. Kathleen F. Graham, Member
            Mr. James W. Russell III, Member


The following documentary evidence for AFBCMR  Docket  Number  BC-2003-03784
was considered:

      Exhibit A.  DD Form 149, dated 17 Nov 03, with attachments.
      Exhibit B.  Applicant's Master Personnel Records.
      Exhibit C.  Letter, AFLSA/JAJM, dated 10 Feb 04.
      Exhibit D.  Letter, SAF/MRBR, dated 20 Feb 04.




                                  MICHAEL K. GALLOGLY
                                                   Panel Chair