RECORD OF PROCEEDINGS
         AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS

IN THE MATTER OF:      DOCKET NUMBER:  BC-2004-01539
            INDEX CODE:  110.02

      XXXXXXX    COUNSEL:  DAV

      XXXXXXX    HEARING DESIRED: NO

___________________________________________________________________

APPLICANT REQUESTS THAT:

His dishonorable discharge be upgraded to honorable.

___________________________________________________________________

APPLICANT CONTENDS THAT:

He had three previous honorable discharges and his last  enlistment
was filled with successes and achievements until the  events  which
led to his court-martial.  His  charges  were  changed  during  the
trial because of the misrepresentation by the prosecution witness.

In support of his appeal, applicant submitted a personal statement.

Applicant’s complete submission is at Exhibit A.

___________________________________________________________________

STATEMENT OF FACTS:

On 29 December 1972, the applicant  enlisted  in  the  Regular  Air
Force in the grade of airman basic (E-1).  Applicant had continuous
honorable active military service from  29  December  1972  through
5 December 1989.  Prior to the events cited below, he was  promoted
to the grade of master sergeant (E-7), with an effective  date  and
date of rank of 4 May 1989.  He  entered  his  last  enlistment  on
6 December 1989.

On 23 May 1993, applicant was tried by General  Court-Martial.   He
was charged with two specifications of wrongful use of  cocaine  in
violation of Article 112a, UCMJ, (in Mar 92 and  Aug/Sep  92);  one
specification of conspiracy to distribute cocaine in  violation  of
Article 81, UCMJ;  one  specification  of  wrongful  possession  of
cocaine in violation of Article 112a, UCMJ;  one  specification  of
wrongful possession of heroin in violation of Article  112a,  UCMJ;
one specification of wrongful distribution of cocaine in  violation
of Article 112a, UCMJ; one specification of willful disobedience in
violation of Article  90,  UCMJ,  for  disobeying  an  officer  who
ordered him to report; and one  specification  of  absence  without
leave (AWOL) for being absent from work without authorization  from
23 Oct 92 until 26 Oct 92, in violation of Article 86 of the  UCMJ.
He  was  apprehended  and  placed  in   pretrial   confinement   on
26 October 1992.  Applicant pled not  guilty  to  all  the  charged
offenses.   He  was  found  guilty  of  all  the  offenses   except
possession of heroin.  He was sentenced to reduction  in  grade  to
airman basic (E-1), confinement for 15 years,  and  a  dishonorable
discharge.

On 15 Aug 97, he was discharged  pursuant  to  the  General  Court-
Martial Order, with a dishonorable discharge.  He was credited with
21 years, 6 months, and 5 days of active duty (excludes  time  lost
for confinement from 26 Oct 1992 through 7 Dec 1995).

___________________________________________________________________

AIR FORCE EVALUATION:

AFLSA/JAJM recommended denial of the applicant’s  request  to  have
his discharge upgraded to honorable.  The applicant, then a  master
sergeant, was convicted on  23  May  93  during  a  general  court-
martial.

He was represented at trial by military  counsel.   Applicant  pled
not guilty to all the charged offenses, but was found guilty of all
the offenses except possession  of  heroin.   On  30  Aug  93,  the
convening authority approved the sentence as adjudged.

On 12 Dec 95, the United States Air Force Court of Criminal Appeals
affirmed the findings and sentence.  On 11 Aug 97, the dishonorable
discharge was executed pursuant to the final court-martial order.

The maximum punishment authorized for the offenses  for  which  the
applicant was convicted was a dishonorable  discharge,  confinement
for over 27 years, total forfeitures of all pay and allowances, and
reduction to E-1.  The sentence was well within  the  legal  limits
and the bad conduct discharge was an appropriate punishment for the
offense committed.   The  findings  of  guilty  and  the  sentence,
including the dishonorable discharge, were affirmed upon  appellate
review.

A dishonorable discharge  is  reserved  for  those  who  should  be
separated with dishonor, after having been  convicted  of  offenses
usually recognized in civilian jurisdictions  as  felonies,  or  of
offenses of a military nature  requiring  severe  punishment.   The
applicant committed several serious offenses that clearly  amounted
to dishonorable conduct.

His court-martial was properly conducted and he  was  afforded  all
the rights accorded by law.  The applicant did not serve  honorably
and the evidence presented is insufficient to warrant upgrading the
discharge, and does not demonstrate an equitable basis for  relief.
Therefore, there is no reason required by law to grant  the  relief
requested.

A complete copy of the evaluation is at Exhibit D.

___________________________________________________________________

APPLICANT'S REVIEW OF AIR FORCE EVALUATION:

A copy of the Air Force evaluation was forwarded to  the  applicant
on 3 Sep 04 for review and comment 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.   Applicant’s
contentions are duly noted.  However, we do not find his  arguments
sufficiently persuasive to override the rationale provided  by  the
Associate Chief, Military Justice Division.  The evidence of record
reflects the applicant was convicted by  general  court-martial  of
wrongful use, possession and distribution of cocaine, disobeying  a
lawful order, and being absent without leave (AWOL).   No  evidence
has been  presented  which  would  lead  us  to  believe  that  the
applicant’s service characterization was  improper.   Additionally,
we  note  applicant’s   prior   honorable   periods   of   service.
Nonetheless, in view of the seriousness of the  offenses  committed
during the period of service under review,  we  are  not  persuaded
that an  upgrade  of  the  characterization  of  his  discharge  is
warranted on the basis of clemency.  Therefore, in the  absence  of
persuasive evidence  to  the  contrary,  we  adopt  the  Air  Force
rationale as the basis for our conclusion that  the  applicant  has
not been the victim of an error or injustice and conclude  that  no
basis exists 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 AFBCMR Docket  Number
BC-2004-01539 in Executive Session on 17 November 2004,  under  the
provisions of AFI 36-2603:

      Ms. Kathy L. Boockholdt, Panel Chair
      Mr. Wallace F. Beard Jr., Member
      Mr. Albert C. Ellett, Member

The following documentary evidence was considered:

    Exhibit A.  DD Form 149, dated 20 May 04, w/atch.
    Exhibit B.  Applicant's Master Personnel Records.
    Exhibit C.  Letter, HQ AFLSA/JAJM, dated 25 Aug 04.
    Exhibit D.  Letter, SAF/MRBR, dated 3 Sep 04.




                                   KATHY L. BOOCKHOLDT
                                   Panel Chair