RECORD OF PROCEEDINGS
             AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS


IN THE MATTER OF:      DOCKET NUMBER:  BC-2004-02420
            INDEX CODE:  110.00

            COUNSEL:  NONE

            HEARING DESIRED:  NO


_________________________________________________________________

APPLICANT REQUESTS THAT:

His bad  conduct  discharge  be  upgraded  to  a  general  (under  honorable
conditions) discharge.

_________________________________________________________________

APPLICANT CONTENDS THAT:

It has been 15 years since his discharge and  he  desires  his  bad  conduct
discharge upgraded.

Applicant’s complete submission is at Exhibit A.

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STATEMENT OF FACTS:

On 21 October 1985, the applicant enlisted in the Regular Air  Force  for  a
period of four years.

On 6 February 1987, the applicant was notified of his commander’s intent  to
impose nonjudicial punishment upon him for  the  following:   The  applicant
having knowledge of a lawful order not to consume  alcoholic  beverages,  an
order which it was his  duty  to  obey,  did,  at  Castle  Air  Force  Base,
California, on or about 31 January 1987, failed to obey the  same.   Further
investigation had disclosed he was, at Castle Air  Force  Base,  California,
on or about 31 January 1987, disorderly.

After consulting with counsel, applicant waived his  right  to  a  trial  by
court-martial, submitted a written presentation in his behalf  and  did  not
request a personal appearance.

On 19 February 1987,  the  applicant’s  commander  found  him  guilty.   The
complete Article 15 documentation is not available  for  review;  therefore,
his punishment cannot be determined.


The applicant did not appeal the punishment and the Article 15 was filed  in
his Unfavorable Information File (UIF).

On 26 July 1988, the applicant was notified of  his  commander’s  intent  to
impose nonjudicial punishment upon  him  for  the  following:   He  did,  at
Castle Air Force Base,  California,  on  or  about  16  July  1988,  without
authority, fail to go at the time  prescribed  to  his  appointed  place  of
duty, to wit Building 871, Fitness Center.

After consulting with counsel, the applicant waived his right to a trial  by
court-martial, did not request to make a personal appearance and did  submit
a written presentation in his behalf.

On 4 August 1988, he was found guilty  by  his  commander  who  imposed  the
following punishment: Reduction in grade from airman first class  to  airman
basic, with a new date of rank of 4 August 1988.

The applicant did not appeal the punishment and the Article 15 was filed  in
his UIF.

On 4 October 1988, the applicant was notified of his commander’s  intent  to
impose nonjudicial punishment upon him for the following:   He  did,  on  or
about 24 September 1988,  without  authority,  failed  to  go  at  the  time
prescribed to his appointed place of duty, to wit Building 871.

After consulting with counsel, the applicant waived his right to a trial  by
court-martial, did not request to make a personal appearance and did  submit
a written presentation in his behalf.

On 7 October 1988, he was found guilty by  his  commander  who  imposed  the
following punishment: A forfeiture of $50.00 pay per month for two months.

The applicant did not appeal the punishment and the Article 15 was filed  in
his Unfavorable Information File (UIF).

On 27 January 1989, the applicant was convicted by a  general  court-martial
for the following offense:

Charge:  Violation of the Uniform Code of Military Justice, Article 112a.

Specification:  In that the applicant did on divers occasions,  from  on  or
about 1 May 1987 to on or about 31 December 1987, wrongfully use cocaine.

The applicant was found guilty of the specification and charge.

He was sentenced to a bad conduct discharge, confinement  for  nine  months,
and a forfeiture of $400.00 pay per month for nine months.

The sentence was adjudged on 20 December 1988.

On 15 September 1989, the  applicant  was  discharged  with  a  bad  conduct
discharge in the grade of airman basic,  under  the  provisions  of  General
Court-Martial Order Number 353.  He served three  years,  four  months,  and
eight days of total active duty service with lost time  between  2  December
1988 and 6 July 1989.

Pursuant to the  Board's  request,  the  Federal  Bureau  of  Investigation,
Clarksburg, West Virginia, provided an arrest record which is at Exhibit C.

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AIR FORCE EVALUATION:

AFLSA/JAJM recommended denial indicating the applicant is not  contending  a
specific error had occurred which requires  the  correction  of  his  court-
martial record and there is no indication in the record of  such  an  error.
While clemency is an option, there is no reason for the  Board  to  exercise
clemency in this case.  The military  judge  and  the  Air  Force  Court  of
Military Review were convinced of the applicant’s guilt beyond a  reasonable
doubt.  His sentence is  appropriate.   The  applicant  did  not  serve  his
enlistment honorably.  It would be unjust to change the characterization  to
one that hundreds of thousands of airmen, who have  served  honorably,  also
carry.  The applicant presents no evidence  to  warrant  upgrading  the  bad
conduct discharge, nor has he demonstrated an equitable  basis  for  relief.
In addition, his request, made over fifteen years after his  conviction,  is
untimely.

The evaluation is at Exhibit D.

_________________________________________________________________

APPLICANT'S REVIEW OF AIR FORCE EVALUATION:

On 10 November 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.

On 16 December 2004, the Board staff requested the applicant  provide  post-
service documentation within 14 days (Exhibit F) and on  23  December  2004,
the Board provided the applicant the  opportunity  to  respond  to  the  FBI
report within 14 days (Exhibit G).  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 an error or  an  injustice.   After  thoroughly  reviewing  the
evidence of record, we  find  no  evidence  to  show  that  the  applicant’s
discharge as a result of his conviction by court-martial  was  erroneous  or
unjust.  While the applicant believes his bad conduct  discharge  should  be
upgraded, we note the military judge determined the  bad  conduct  discharge
was an appropriate consequence which accurately  described  the  applicant’s
military service and his misconduct and  the  convening  authority  approved
the bad conduct discharge.  The  Board  notes  the  applicant’s  FBI  report
contains three entries (2 April 1993, 1 August 1993, and  8  February  1999)
after  his  discharge  from  the  Air  Force;  therefore,  it  appears   his
misconduct continued following his discharge.  In view of the foregoing,  we
agree with the opinion and recommendation of the Military  Justice  Division
and adopt the rationale expressed as the basis for  our  decision  that  the
applicant has failed to sustain his burden that he has  suffered  either  an
error or an injustice.  Therefore, based on the evidence of record, we  find
no compelling basis to recommend granting the relief sought.

4.    Although the applicant  did  not  specifically  request  consideration
based  on  clemency,  we  also  find  insufficient  evidence  to  warrant  a
recommendation the discharge be upgraded on that basis.

_________________________________________________________________

THE BOARD DETERMINES THAT:

The applicant be notified the evidence presented  did  not  demonstrate  the
existence of an error or an injustice; the application was denied without  a
personal appearance; and 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-
02420 in Executive Session on 25 January 2005, under the provisions  of  AFI
36-2603:

                 Ms. Peggy E. Gordon, Panel Chair
                 Ms. Renee M. Collier, Member
                 Mr. Patrick C. Daugherty, Member

The following documentary evidence was considered:

   Exhibit A.  DD Form 149, dated 27 July 2004.
   Exhibit B.  Applicant’s Master Personnel Records.
   Exhibit C.  FBI Report.
   Exhibit D.  Letter, AFLSA/JAJM, 4 November 2004.
   Exhibit E.  Letter, SAF/MRBR, dated 10 November 2004.
   Exhibit F.  Letter, AFBCMR, dated 16 December 2004.
   Exhibit G.  Letter, AFBCMR, dated 23 December 2004.




                       PEGGY E. GORDON
                       Panel Chair