RECORD OF PROCEEDINGS
         AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS


IN THE MATTER OF:      DOCKET NUMBER:  BC-2004-00658
            INDEX CODE:  110.00

            COUNSEL:  NONE

            HEARING DESIRED:  NO


_________________________________________________________________

APPLICANT REQUESTS THAT:

His bad conduct discharge be upgraded to honorable.

_________________________________________________________________

APPLICANT CONTENDS THAT:

The sentence was too harsh, and also, not all due  process  procedures
were afforded him.  Applicant provided extracts from his court-martial
case, a personal statement, and several supportive statements.

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

_________________________________________________________________

STATEMENT OF FACTS:

Applicant enlisted in the Regular Air Force on 3 February 1977.  Prior
to the events under review, he was progressively promoted to the grade
of  master  sergeant.   He  received  26  Airman/Enlisted  Performance
Reports  (APRs/EPRs).   In  his   last   ten   EPRs,   the   promotion
recommendations were “5,” “5,” “5,” “5,” “5,” “5,” “5,” “5,” “5,”  and
“5.”

On 25 October 1999, the applicant was tried by a general court-martial
at Sheppard AFB, TX.  He was charged with wrongful use of  cocaine  in
violation of Article 112a, UCMJ.  The applicant  pled  and  was  found
guilty in a trial by judge alone.  The court sentenced him  to  a  bad
conduct discharge, confinement for two months, and  reduction  to  the
grade of airman basic.  The applicant appealed and on  5  April  2000,
the Air Force Court of Criminal  Appeals  affirmed  the  findings  and
sentence.

On 11 October 2000, the applicant was discharged with  a  bad  conduct
discharge.  He served 23 years, 6 months and 18 days  of  active  duty
service.  Time lost was 2 months and 18 days due to confinement.

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AIR FORCE EVALUATION:

AFLSA/JAJM states that 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  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 court-martial conviction that occurred  on  or  after  5 May
1950 (the effective date of the UCMJ).

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.   Therefore,
the applicant was thus afforded all  rights  granted  by  statute  and
regulation.  The  sentence  with  within  the  legal  limits  and  was
appropriate punishment for the offense committed.

While clemency is an option, there  is  insufficient  reason  for  the
Board to exercise clemency in this case.  While the applicant’s  prior
record of service was long and  unblemished,  his  rank  and  maturity
argues against clemency.  There  must  be  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 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.  He presents no evidence to warrant upgrading
the bad conduct discharge, nor has he demonstrated an equitable  basis
for relief.  Therefore,  they  recommend  denial  of  the  applicant’s
request.

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

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APPLICANT'S REVIEW OF AIR FORCE EVALUATION:

On 18 June 2004, a copy of the Air Force evaluation was  forwarded  to
the applicant for review and response 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.    Insufficient relevant evidence has been presented to demonstrate
the  existence  of  error  or  injustice.   We  took  notice  of   the
applicant's complete submission in judging the  merits  of  the  case;
however, we agree with the opinion and recommendation of the Air Force
and adopt their rationale as the basis for  the  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  this  application  in
Executive Session on 30 September 2004, under the provisions of AFI 36-
2603:

                       Mr. Edward H. Parker, Panel Chair
                       Ms. Deborah A. Erickson, Member
                       Ms. Janet I. Hassan, Member

The following documentary evidence pertaining to AFBCMR Docket  Number
BC-2004-00658 was considered:

      Exhibit A. DD Form 149, dated 24 Feb 03, w/atchs.
      Exhibit B. Applicant's Master Personnel Records.
      Exhibit C. Letter, AFLSA/JAJM, dated 9 Jun 04.
      Exhibit D. Letter, SAF/MRBR, dated 18 Jun 04.




                             EDWARD H. PARKER
                             Panel Chair