RECORD OF PROCEEDINGS
             AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS

IN THE MATTER OF:      DOCKET NUMBER:  BC-2004-01979
            INDEX CODE:  110.02
            COUNSEL:  NONE

            HEARING DESIRED:  NO

MANDATORY DUE DATE:  25 OCTOBER 2005

_________________________________________________________________

APPLICANT REQUESTS THAT:

His Bad Conduct Discharge be upgraded to Honorable.

_________________________________________________________________

APPLICANT CONTENDS THAT:

He enlisted in the Air Force right out  of  high  school.   His  ability  to
serve was impaired by his  youth,  immaturity  and  lack  of  experience  in
dealing with so many different people.  His punishment was severe.   He  has
been out of the Air Force for six years and has a son who depends on him  to
provide.  He is without an education and moves from  one  dead  end  job  to
another.  He was told  his  discharge  would  be  General  (Under  Honorable
Conditions).  He was told that this type of discharge would  not  allow  him
the use of certain veteran’s benefits, but his  educational  benefits  would
be available to him because he had served at least two years.  He is now  28
years old and has an opportunity to attend a Computer  Learning  Center  but
he cannot afford to pay for the school.  He was a young man who made a  poor
decision and has spent the last six years paying for his poor choice.

In  support  of  the  application,  the  applicant  submits   his   personal
statement, a copy of his DD Form 214 (separation document), and  a  copy  of
his DD Form 293 (Discharge Review Board application with  attachment).   The
applicant's complete submission, with attachments, is at Exhibit A.

_________________________________________________________________

STATEMENT OF FACTS:

The applicant enlisted in the Regular Air Force on 19 October  1994  at  the
age of 18 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-2)
effective and with a date of rank of  1  February  1996.   He  received  two
Enlisted Performance Reports (EPRs) for the periods ending 18 June 1996  and
18 June  1997,  in  which  the  promotion  recommendations  were  3  and  1,
respectively.

Information provided by the  Air  Force  office  of  primary  responsibility
indicates pursuant to his plea  of  guilty,  the  applicant  was  tried  and
convicted by a general court-martial for wrongful use  and  distribution  of
marijuana;  failure  to  go  to  his  appointed  place  of   duty;   willful
disobedience of an order; and wrongful solicitation of  another  to  make  a
false official statement on 9 June 1997.  His sentence included a  reduction
to E-1 (airman  basic),  confinement  for  18  months,  and  a  bad  conduct
discharge.  The convening authority approved his sentence as  adjudged.   On
13 May 1998, the Air Force Court of Criminal Appeals affirmed  the  findings
and sentence.  The final order was promulgated on 5 September 1998  and  the
bad conduct discharge was executed on 22 September 1998.

On 22 September 1998, the  applicant  was  discharged  with  a  bad  conduct
discharge.  He had served 2 years, 10 months, and 28 days  on  active  duty.
He had 98 days of lost time due to confinement.

The remaining relevant facts pertaining to this application, extracted  from
the applicant’s military records, are contained in the  letter  prepared  by
the appropriate office of the Air Force at Exhibit C.

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AIR FORCE EVALUATION:

AFLSA/JAJM recommends denial.  JAJM notes the applicant’s  contentions  that
his youth and limited life  experiences  at  the  time  he  committed  these
offenses are to blame for his failure to maintain  standards  and  obey  the
law, and his bad conduct discharge is  holding  him  back  from  getting  an
education and progressing with  a  career.   JAJM  believes  none  of  these
factors provide a basis to grant relief  in  this  case,  stating  that  the
sentence was within the legal limits and was appropriate  for  the  offenses
committed, and he provided no compelling rationale to mitigate the  approved
punitive discharge given the circumstances of his case.  In  addition,  JAJM
believes there is insufficient reason(s) evidence provided for the Board  to
exercise clemency.

As an additional matter, JAJM noted that the Board is not empowered to  set-
aside or reverse the findings of guilty  by  a  court-martial.   Rather,  in
accordance with Title 10, United States Code, Section  1552(f),  actions  by
this Board are limited to corrections  to  the  record  to  reflect  actions
taken by the reviewing officials and action on the sentence  of  the  court-
martial for the purpose of clemency.  JAJM  does  not  believe  there  is  a
basis for any relief as to the sentence of the military court in this case.

JAJM’s evaluation is at Exhibit C.

_________________________________________________________________
APPLICANT'S REVIEW OF AIR FORCE EVALUATION:

A copy of the Air Force  Evaluation  was  forwarded  to  the  applicant  for
review and comment on 3 September 2004.  As of this date,  this  office  has
received no response (Exhibit D).

_________________________________________________________________

ADDITIONAL AIR FORCE EVALUATION:

Pursuant to the Board’s request, AFLSA/JAJM states there is no merit to  the
applicant’s contention that during his  court-martial  he  was  informed  he
would receive a general discharge.  JAJM explains in cases where a  punitive
discharge is adjudged, the discharge  cannot  be  executed  until  appellate
review is completed.  Once  appellate  review  is  complete,  the  convening
authority,  or  successor,  must  take  additional  action  to  execute  the
punitive discharge.  Therefore, the convening authority’s action,  by  which
he approved the sentence except for the punitive  discharge  and  the  later
action executing the bad conduct discharge  after  completion  of  appellate
review were proper.

JAJM states there  is  nothing  in  the  record  of  trial  to  support  the
applicant’s contention that during his court-martial he was  told  he  would
receive a general discharge, which is an  administrative  discharge,  rather
than  a  punitive  discharge.   JAJM  notes  the  applicant   requested   an
administrative discharge in lieu of court-martial.  JAJM further  notes  the
applicant requested a general discharge but also stated that he realized  he
might receive an under  other  than  honorable  conditions  discharge.   The
convening authority disapproved his request for a general discharge.

JAJM notes in a pretrial agreement signed by the applicant,  the  terms  the
applicant agreed to in exchange for his guilty plea,  confinement  would  be
limited to 24 months.  The pretrial agreement also  states,  “The  convening
authority may approve any other punishments that  may  be  adjudged  by  the
court-martial.”  Moreover, when the pretrial agreement was discussed on  the
record, the judge explained that the convening authority  could  approve  no
more than 18 months of confinement, total forfeitures, and the  bad  conduct
discharge.  When the judge asked him  if  the  applicant  agreed  with  that
interpretation of the pretrial agreement, the applicant replied yes.

JAJM opines  the  applicant  was  well  aware  of  the  possibility  of  him
receiving a bad conduct discharge during the  court-martial  process.   JAJM
notes after being sentenced to a bad conduct discharge,  the  applicant  was
reminded that the pretrial agreement had  no  effect  on  the  adjudged  bad
conduct discharge (Exhibit E).

_________________________________________________________________

ADDITIONAL APPLICANT'S REVIEW OF AIR FORCE EVALUATION:

A copy  of  the  additional  Air  Force  Evaluation  was  forwarded  to  the
applicant for review and comment on  24  March  2005.   The  evaluation  was
returned to our office marked “moved left no  address,  unable  to  forward;
return to sender” (Exhibit F).

_________________________________________________________________

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 an error or injustice.  We are not persuaded  by  the  evidence
presented that  the  separation  characterization  received  by  the  former
member should be changed.  The former member's discharge was  based  on  his
trial and conviction by a general court-martial.   While  law  precludes  us
from reversing a court-martial conviction, we are authorized to correct  the
records to reflect actions taken by reviewing officials and to  take  action
on the sentence of a military court based on clemency.  There is nothing  in
the available record that would cause us  to  disturb  the  actions  of  the
reviewing officials or to warrant a  correction  of  his  records  based  on
clemency.  In the absence of such evidence, the applicant’s request  is  not
favorably considered.

________________________________________________________________

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 09 May 2005, under the provisions of AFI 36-2603:

                 Mr. Thomas S. Markiewicz, Chair
                 Mr. Garry G. Sauner, Member
                 Mr. Joseph D. Yount, Member


The following documentary evidence was considered in connection with AFBCMR
Docket Number BC-2004-01979:

      Exhibit A.  DD Form 149, dated 16 Jun 04.
      Exhibit B.  Applicant's Master Personnel Records.
      Exhibit C.  Letter, AFLSA/JAJM, dated 27 Aug 04.
      Exhibit D.  Letters, SAF/MRBR, dated 3 Sep 04; AFBCMR, dated
            2 Feb 05
      Exhibit E.  Letter, AFLSA/JAJM, dated 21 Mar 05.
      Exhibit F.  Returned AFBCMR Letter to Applicant, dated
            24 Mar 05, w/atch.




      THOMAS S. MARKIEWICZ
      Chair