RECORD OF PROCEEDINGS
         AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS


IN THE MATTER OF:      DOCKET NUMBER:  BC-2004-02617
            INDEX CODE:  110.00

            COUNSEL:  NONE

            HEARING DESIRED:  NO


_________________________________________________________________

APPLICANT REQUESTS THAT:

His bad conduct discharge be upgraded to a general discharge.

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APPLICANT CONTENDS THAT:

He has paid for his mistake for which he is truly  sorry.   He  should
have been given rehabilitation.

Applicant's complete submission, with attachment, is at Exhibit A.

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STATEMENT OF FACTS:

Applicant enlisted in the Regular Air Force on  23  May  1996  in  the
grade  of  airman  basic  for  a  period  of  four  years.    He   was
progressively promoted to the grade of airman on 23 November 1996.

The applicant, then an airman (E-2), was tried before a general court-
martial at Fairchild Air Force Base, Washington, on 17 June 1997.  The
applicant was assigned to  the  92d  Medical  Operations  Squadron  at
Fairchild.  It was alleged that, in the fall of 1996, while  attending
technical  training  at  Wright-Patterson   AFB,   Ohio,   immediately
following basic training, the  applicant  and  two  other  individuals
ingested LSD and, soon after, the  applicant  and  four  other  airmen
conspired to purchase psilocybin  (a  hallucinogen  found  in  certain
mushrooms).   The  conspirators  pooled  their  money,   traveled   to
Cincinnati to engage a seller,  and  purchased  the  mushrooms.   Once
purchased, the applicant consumed some of the mushrooms.

Based on his reported misconduct, the applicant was charged  with  one
specification of conspiracy, in violation of Article 81 of  the  UCMJ;
one specification of wrongful use of  LSD,  in  violation  of  Article
112a;  and  one  specification  of  wrongful  use  of  psilocybin,  in
violation of Article 112a.  On 11 May 1997, the charges were  referred
for  trial  by  general  court-martial.   At  his  court-martial,  the
applicant was tried before a military judge sitting without a panel of
officers.  The applicant pled guilty to, and was found guilty of,  all
charges.  The military judge sentenced the applicant to a bad  conduct
discharge, confinement for five months, forfeiture  of  $250  pay  per
month for six  months,  and  reduction  to  the  grade  of  E-1.   The
applicant entered into a pretrial  agreement  pursuant  to  which  the
convening authority agreed not to approve that part of a  sentence  of
confinement longer than 10 months.  On 18  July  1997,  the  convening
authority approved the sentence and, except for the discharge, ordered
the sentence executed.

In the meantime, prior to his trial by  court-martial,  the  applicant
was seen in the Mental Health Clinic for a substance abuse evaluation.
 The interviewer indicated he admitted to one time  use  of  acid  and
mushrooms in December 1996 and prior use of marijuana.  No psychiatric
diagnoses were rendered.  Based on his interview,  he  was  thereafter
entered into Track V of rehabilitation (Substance Abuse and  Awareness
and Reorientation Seminar).

Because his approved sentence included a bad  conduct  discharge,  the
United States  Air  Force  Court  of  Criminal  Appeals  reviewed  the
applicant’s conviction.  On 26 February 1998, the court  affirmed  the
conviction and the approved sentence.  The  applicant  petitioned  the
United States Court of Appeals for the Armed Forces for review,  which
was denied on 9 June  1998.   With  appellate  review  concluded,  the
applicant’s bad conduct discharge was executed on 16  July  1998.   He
was credited with 2 years, 1 month and 24 days of active  duty.   Time
lost was 17 June 1997 through 18 October 1997 due to confinement.

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AIR FORCE EVALUATION:

AFLSA/JAJM states there is no legal basis  for  upgrading  applicant’s
discharge.  The appropriateness of the  applicant’s  sentence,  within
the prescribed limits, is a matter within the discretion of the court-
martial and may be mitigated by the convening authority or within  the
course of  the  appellate  review  process.   The  applicant  had  the
assistance of counsel in presenting extenuating and mitigating matters
in  their  most  favorable  light  to  the  court  and  the  convening
authority.  Therefore, the applicant  was  thus  afforded  all  rights
granted by statute and regulation.  The sentence was within the  legal
limits and was appropriate  punishment  for  the  offenses  committed.
Conversely,  the   requested   relief,   an   upgrade   in   discharge
characterization, even  to  a  general  (under  other  than  honorable
conditions), is inappropriate given the seriousness of the applicant’s
crimes.

As to the applicant’s contention that he should  have  been,  but  was
not, afforded  rehabilitation,  to  the  extent  he  is  referring  to
treatment to overcome any drug addiction he was suffering  from,  they
doubt his contention is true.  Therefore,  they  recommend  denial  of
applicant’s request.

A complete copy of the evaluation is attached at Exhibit C.

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APPLICANT'S REVIEW OF AIR FORCE EVALUATION:

Applicant states he understands what he did in the past was  not  very
intelligent.  Five years ago he was a young impressionable man, now he
is an older and wiser man and a father of four.  He has learned a  lot
from his past that makes him who he is today.  The sentence he  served
for his crime was very appropriate, but he does not  think  he  should
have to pay for it the rest of his life.  For the last three  or  four
years he has tried to improve his skills and knowledge by applying for
different jobs.  He has all the experience and a strong work  history,
but he does not qualify for any of the jobs because  of  his  military
record.  He feels his punishment should have been for  his  crime  not
for his life.  He wants to provide for his family to the best  of  his
ability.  He has gone through some college and still  going  to  prove
that the  past  does  not  make  him  the  person  he  is  today.   He
understands his crime was very serious, but  he  is  truly  sorry  and
would like to be given a second chance at a  new  career  without  the
past derailing his plans and future goals.  Please consider  this  was
over five years ago when he was a young man and now  he  is  a  man--a
family man.

Applicant’s response is attached at Exhibit E.

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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 probable error or  injustice.   After  reviewing  the
evidence of record, the Board is not persuaded  that  the  applicant’s
records are in error or that he has been the victim of  an  injustice.
His contentions are noted; however, it is the  opinion  of  the  Board
that the detailed comments  provided  by  the  appropriate  Air  Force
office adequately address those  allegations.   Therefore,  the  Board
agrees with the opinions and recommendation of the Air Force and adopt
its rationale as the basis for the conclusion that the  applicant  has
not been the victim of an error  or  injustice.   In  the  absence  of
evidence to the contrary, the majority finds no  compelling  basis  to
recommend granting the relief sought in this application.

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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 6 January 2005, under the provisions of  AFI  36-
2603:

                 Mr. Thomas S. Markiewicz, Chair
                 Ms. Deborah A. Erickson, Member
                 Mr. James W. Russell III, Member

The  Board  recommended  denial  of  the  application.   Mr.   Russell
abstained  from  voting.   The  following  documentary  evidence   was
considered:

      Exhibit A. DD Form 149, dated 1 Aug 04, w/atch.
      Exhibit B. Applicant's Master Personnel Records.
      Exhibit C. Letter, AFLSA/JAJM, dated 26 Oct 04.
      Exhibit D. Letter, SAF/MRBR, dated 5 Nov 04.
      Exhibit E. Applicant’s Response, dated 18 Nov 04.




                             THOMAS S. MARKIEWICZ
                             Chair