RECORD OF PROCEEDINGS
         AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS

IN THE MATTER OF:      DOCKET NUMBER:  BC-2004-00860
            INDEX CODE:  126.04

      XXXXXXX    COUNSEL:  NONE

      XXXXXXX    HEARING DESIRED: NO

___________________________________________________________________

APPLICANT REQUESTS THAT:

The Article 15 imposed on 16 Apr 79 be sealed or expunged from  his
records.

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APPLICANT CONTENDS THAT:

The Article 15 should have stayed with the base.  He  went  through
the Drug and Alcohol Rehabilitation Program  and  graduated,  which
was not indicated on his employment background check.  He  has  not
used drugs in over 20 years since being discharged.

Applicant’s complete submission is at Exhibit A.

___________________________________________________________________

STATEMENT OF FACTS:

Applicant enlisted in the Regular Air Force on  7  Mar  77  in  the
grade of airman basic for a period of four years.  He was  promoted
to the grade of sergeant with an effective date and date of rank of
1 Sep 79.

A resume of applicant’s airman performance  reports  (APR)  profile
follows:

            PERIOD CLOSING              OVERALL EVALUATION


           06 Mar 78                                    8
                 04 Dec 78                                    8
                 04 Dec 79                                    9
                 04 Dec 80                                    9

On  4  Apr  79,  applicant  received  nonjudicial  punishment   for
possession of marijuana, on or about 25 Mar  79.   On  16  Apr  79,
after consulting with counsel, applicant waived his right to demand
trial by court-martial and  accepted  nonjudicial  punishment.   He
submitted a written presentation to his commander.   On  16 Apr 79,
his commander determined he had committed the offense  alleged  and
imposed punishment consisting of a suspended  reduction  to  airman
until 15 Aug 79, unless sooner vacated and a forfeiture of $50 pay.

On 6 Mar 81, applicant was  honorably  released  from  active  duty
under the provisions of AFR 39-10, by reason of expiration term  of
active obligated service, and transferred to the Air Force Reserve.
 He was credited with four years of active duty  service.   He  was
honorably discharged for the Air Force Reserve on 9 Feb 83.

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AIR FORCE EVALUATION:

AFLSA/JAJM reviewed the case file  and  recommended  denial.   JAJM
states that nonjudicial punishment is permitted by Article 15, UCMJ
(10 USC 815), and governed by the Manual for  Courts-Martial  (MCM)
and Air  Force  Instruction  51-202  (formerly  AFR  111-9).   This
procedure permits commanders to dispose of certain offenses without
trial  by  court-martial  unless  the   service   member   objects.
Accepting the proceedings is simply a choice of forum; it is not an
admission of guilt.

Applicant does not contest the merits of the Article 15.   What  he
essentially requests is that his Article  15  record  not  be  made
available to others, either by sealing or  expunging  the  records.
There is no legal basis to do what the applicant requests.   Absent
clear error or injustice, the applicant should not prevail.   While
the Privacy Act protects Article 15 records, the  applicant  likely
signed a release authorizing some organization to glean information
about his background, including  his  marijuana  possession.   This
prior release is outside the control of the  Air  Force  and  would
possibly still be available to a potential new  employer  from  the
organization that  performed  the  background  check.   Applicant’s
records are being maintained pursuant to regulations.

A complete copy of the evaluation is at Exhibit C.

___________________________________________________________________

APPLICANT'S REVIEW OF AIR FORCE EVALUATION:

A copy of the Air Force evaluation was forwarded to  the  applicant
on 7 May 04 for review and comment within  30  days.   As  of  this
date, no response has been received by this office (Exhibit D).

___________________________________________________________________

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.   The  applicant's
complete submission was thoroughly  reviewed  and  his  contentions
were duly noted.  The  evidence  of  record  reflects  that,  after
considering all matters presented by the applicant,  his  commander
determined he had committed  the  offense  alleged,  and  made  the
decision to impose nonjudicial punishment under Article  15,  UCMJ;
the applicant did  not  appeal  the  punishment.   By  electing  to
resolve the allegation in  the  nonjudicial  forum,  the  applicant
placed the responsibility to decide whether he  had  committed  the
offense with his commander.  The applicant  does  not  contest  the
merits of the Article 15, but simply requests that his  Article  15
record not be made  available  to  others,  either  by  sealing  or
expunging the records.  Applicant has not provided any evidence  to
sufficiently convince the  Board  that  the  commander  abused  his
discretionary authority in imposing the Article 15 punishment, that
his substantial rights were violated during the processing  of  the
Article 15 punishment, or that the punishment exceeded the  maximum
authorized by the UCMJ.  Therefore, based on the available evidence
of record, we find no basis upon which to favorably  consider  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-2004-00860 in Executive  Session  on  8  July  2004,  under  the
provisions of AFI 36-2603:

      Mr. Gregory H. Petkoff, Panel Chair
      Ms. Martha A. Maust, Member
      Mr. Robert H. Altman, Member

The following documentary evidence was considered:

    Exhibit A.  DD Form 149, dated 11 Mar 04, w/atchs.
    Exhibit B.  Applicant's Master Personnel Records.
    Exhibit C.  Letter, HQ AFLSA/JAJM, dated 27 Apr 04.
    Exhibit D.  Letter, SAF/MRBR, dated 7 May 04.




                                   GREGORY H. PETKOFF
                                   Panel Chair