RECORD OF PROCEEDINGS
         AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS

IN THE MATTER OF:      DOCKET NUMBER:  BC-2004-02041
            INDEX NUMBER:  110.00
      XXXXXXXXXXXX     COUNSEL:  None

      XXXXXXX    HEARING DESIRED:  No

_________________________________________________________________

APPLICANT REQUESTS THAT:

His dismissal from the Air Force be upgraded to honorable.

_________________________________________________________________

APPLICANT CONTENDS THAT:

Since  leaving  the  military,  he  has  refocused  his  life  and  is
attempting to make a positive influence on society.  He has received a
Master of Arts degree in religion and a Master of Divinity degree.  He
is  also  a  licensed  insurance  underwriter,  a   licensed   private
investigator, and is  currently  attending  school  working  toward  a
teaching certification while  teaching  school.   He  is  pastoring  a
church with a strong ministry for  disadvantaged  children.   He  also
works with the presbytery in the city where he lives.

The applicant’s complete submission is at Exhibit A.

_________________________________________________________________

STATEMENT OF FACTS:

The applicant entered active duty in the Air Force on 9  Sep  80.   He
was dismissed from service as a sentence of court-martial  on  28  Aug
87.  The following facts were provided in the evaluation  prepared  by
the Air Force office of primary responsibility:

        a.  On 24 Sep 85 the applicant provided  a  urinalysis  sample
during a random urinalysis, which tested positive for the presence  of
marijuana.

        b.  On 3 Dec  85,  the  applicant’s  commander  preferred  one
charge of wrongful use of marijuana, in violation of Article  112a  of
the Uniform Code of Military Justice (UCMJ).

        c.  On 17 Dec 85, the applicant  submitted  a  resignation  in
lieu of court-martial (RILO) request.  His  request  was  subsequently
disapproved.

        d.  On  16  May  86,  the  court-martial  convening  authority
withdrew the original charge and referred another charge that expanded
the time period and location for the alleged use.

         e.  The  applicant  again  requested  a   RILO,   which   was
subsequently disapproved on 14 Jul 86.

        f.  The applicant was tried on 14-18 and 21-24  Jul  86  by  a
general  court-martial  consisting  of  military  judge  alone.    The
applicant pleaded not guilty and was represented by a military defense
counsel and civilian counsel.

         g.  The  applicant  was  found  guilty  of  the  charge   and
specification.  He was sentenced to  a  dismissal  and  forfeiture  of
$500.00 per month for four  months.   His  sentence  was  subsequently
upheld through the various reviews and appeal process.  On 13 Aug  87,
the  Secretary  of  the  Air  Force  approved  only  so  much  of  the
applicant’s sentence as provided for  dismissal.   The  applicant  was
dismissed from service effective 28 Aug 87.

Additional  facts  pertinent  to  this  case  are  contained  in   the
evaluation prepared by the appropriate office of the Air  Force  found
at Exhibit C.

_________________________________________________________________

AIR FORCE EVALUATION:

AFLSA/JAJM recommends the applicant’s appeal be denied.  Wrongful  use
of marijuana by a military member is a serious  offense.   During  his
court-martial, applicant’s defense offered a 15 Jan  86  Congressional
Inquiry where the applicant had requested an  investigation  into  the
possibility of racial discrimination in the  processing  of  his  RILO
package.  Though the applicant’s RILO was the only one in a urinalysis
case not accepted in 1985, it was determined there was no evidence  of
selective prosecution because RILOs submitted by both white and  black
officers had been approved.  However, they note that during the period
from fiscal year 83 to 95, every officer accused of a single  instance
of marijuana use who submitted a RILO was allowed to resign.  None  of
those officers received an honorable discharge.

AFLSA/JAJM discusses the circumstances that led to two officers, prior
to the applicant’s RILO submission, assigned to the same base  as  the
applicant being allowed to resign in lieu of court-martial after their
urine tested positive  for  marijuana.   Those  officers’  cases  were
approved due to problems with the chain of  custody.   They  explained
the problems encountered with collection of the applicant’s sample.

AFLSA/JAJM  concludes  the  applicant’s  court-martial  was   properly
conducted and he was afforded all the rights accorded by law.  Despite
the apparent discrepancies in the urinalysis process, a military judge
determined  there  was  sufficient  evidence  to  find  the  applicant
committed the offense.  They note the Board may  want  to  advise  the
applicant of the procedures to apply for a Presidential pardon, should
the Board deny relief.

The complete 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
24 Sep 04 for review and comment within 30 days.  To date, a  response
has not been received.

_________________________________________________________________

FBI REPORT AND ADDITIONAL INFORMATION:

Pursuant to the Board’s request, an FBI report on  the  applicant  was
provided.  The report indicated the applicant does not have an  arrest
record (Exhibit E).  A letter was also sent to the applicant  advising
him  he  failed  to  provide  pertinent  information   regarding   his
activities since leaving the service.

_________________________________________________________________

APPLICANT’S ADDITIONAL INFORMATION:

The applicant responded to  the  request  for  additional  information
concerning his activities since leaving  service.   He  also  provided
additional information regarding his military service.  The  applicant
provided copies of his academic transcript,  diploma,  and  additional
letters of reference.

The applicant’s complete submission, with attachments, is  at  Exhibit
G.

_________________________________________________________________

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.  Sufficient relevant  evidence  has  been  presented  to  warrant
granting the applicant some relief based on clemency.  While we note
the applicant’s request to upgrade his  dismissal  to  an  honorable
discharge, we do not believe the circumstances of his  case  justify
this  particular  relief.   We  believe   such   relief   would   be
inconsistent with the character  of  discharge  received  by  others
similarly situated at the time of his  dismissal.   However,  we  do
believe that an upgrade of his dismissal to general (under honorable
conditions) is appropriate.  We base  this  on  our  view  that  the
evaluation  prepared  by  AFLSA/JAJM  gives   the   impression   the
applicant’s request for a RILO may  have  been  handled  differently
than  other  requests  with  similar  circumstances  at  the   time.
Additionally, the applicant has provided sufficient evidence he  has
turned his life  around  and  become  a  productive  member  of  his
community and greater society at large.  These factors  lead  us  to
recommend his records be corrected as indicated below.

__________________________________________________________________

THE BOARD RECOMMENDS THAT:

The pertinent military records of the Department of  the  Air  Force
relating to APPLICANT, be corrected to show that on 28 August  1987,
he was discharged from the Air Force by General Court Martial  Order
Number 31, dated 13  August  1987,  with  service  characterized  as
general (under honorable conditions).

__________________________________________________________________

The following members of the Board considered Docket Number BC-2004-
02041 in Executive Session on 15 December 2004, under the provisions
of AFI 36-2603:

      Mr. Frederick R. Beaman, III, Panel Chair
      Mr. Wallace F. Beard, Jr., Member
      Ms. Deborah A. Erickson, Member

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

     Exhibit A.  DD Form 149, dated 2 Jul 04, w/atchs.
     Exhibit B.  Applicant's Master Personnel Records.
     Exhibit C.  Memorandum, AFLSA/JAJM, dated 22 Sep 04.
     Exhibit D.  Letter, SAF/MRBR, dated 24 Sep 04.
     Exhibit E.  FBI Report, dated 7 Oct 04.
     Exhibit F.  Letter, AFBCMR, dated 22 Oct 04.
     Exhibit G.  Letter, Applicant, dated 17 Nov 04, w/atchs.




                                   FREDERICK R. BEAMAN, III
                                   Panel Chair


AFBCMR BC-2004-02041


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 on 28
August 1987, he was discharged from the Air Force by General Court
Martial Order Number 31, dated 13 August 1987, with service
characterized as general (under honorable conditions).






            JOE G. LINEBERGER
            Director
            Air Force Review Boards Agency