RECORD OF PROCEEDINGS
         AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS


IN THE MATTER OF:      DOCKET NUMBER:  BC-2004-02683
            INDEX CODE:  110.00

            COUNSEL:  NONE

            HEARING DESIRED:  NO


_________________________________________________________________

APPLICANT REQUESTS THAT:

His dishonorable discharge be upgraded to a general discharge.

_________________________________________________________________

APPLICANT CONTENDS THAT:

Between the time he was charged and  his  trial,  he  participated  in
several undercover operations with the OSI.  He was not ordered to  do
this but voluntarily put his life on the line.  He  never  denied  his
actions were wrong but he was given no consideration for  the  dangers
he endured for assisting those offices.  He served  his  time  and  he
only asks that his discharge be  upgraded  so  he  might  be  able  to
support his wife and two children.

Applicant's complete submission is at Exhibit A.

_________________________________________________________________

STATEMENT OF FACTS:

The applicant enlisted in the Regular Air Force on 3 August 1992 for a
period of four years.  Records indicate the highest grade he held  was
senior airman.  He received four Enlisted Performance  Reports  (EPRs)
closing 2 April 1994, 24 March 1995, 24 March 1996, and 24 March 1997,
in which the overall evaluations were:  “4,” “4,” “3,” and “3.”

On 30 July 1997, the applicant was tried by a general court-martial at
Barksdale AFB, LA.  He was charged with one specification of  wrongful
use of  marijuana,  one  specification  of  wrongful  distribution  of
marijuana, and one specification of wrongful possession of  marijuana,
between about 10 December 1996 and about 10 January 1997, in violation
of  Article  112a,  UCMJ.   The  applicant  pled  not  guilty  to  two
additional  charges  concerning  attempted  wrongful  possession  with
intent to distribute, in violation of Article 80, UCMJ, and conspiring
with another for the purchase of marijuana, in  violation  of  Article
81, UCMJ.  The convening authority withdrew these charges pursuant  to
a pretrial agreement.

The applicant pled guilty to, and was found guilty  of,  the  wrongful
use,  possession  and  distribution  before  a  general  court-martial
composed of a military judge alone.  The military judge sentenced  the
applicant to  a  dishonorable  discharge,  confinement  for  forty-two
months, forfeiture of all pay and allowances,  and  reduction  to  the
grade of E-1 (airman basic).  The applicant entered  into  a  pretrial
agreement pursuant to which the  convening  authority  agreed  not  to
approve  a  sentence  which   exceeded   a   dishonorable   discharge,
confinement in excess of five years, total forfeitures,  reduction  to
airman basic and a fine.  On 4 September 1997, the convening authority
approved the sentence and,  except  for  the  discharge,  ordered  the
sentence executed.

Because his approved sentence included a dishonorable  discharge,  the
United States  Air  Force  Court  of  Criminal  Appeals  reviewed  the
applicant’s conviction pursuant to Article 66, UCMJ.  On 25 June 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  2 September  1998.   With
appellate review concluded, the applicant’s dishonorable discharge was
executed on 20 November 1998.

On 1 December 1998, the applicant was discharged with  a  dishonorable
discharge.  He served 5 years, 3 months and 26 days  on  active  duty.
He had one year and three days of lost time.

_________________________________________________________________

AIR FORCE EVALUATION:

AFLSA/JAJM  states  that  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.  These matters were considered in review  of  the
sentence.  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.

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

_________________________________________________________________




APPLICANT'S REVIEW OF AIR FORCE EVALUATION:

On 19 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.

_________________________________________________________________

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.   We  took  notice  of   the
applicant's complete submission in judging the  merits  of  the  case;
however, we agree with the opinion 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.   As
stated, all the matters were considered in review of  the  sentencing;
however, he  presented  no  new  evidence  to  warrant  upgrading  the
discharge.  Therefore, in the absence of evidence to the contrary,  we
find no compelling basis 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  this  application  in
Executive Session on 9 February 2005, under the provisions of AFI  36-
2603:

                 Mr. Roscoe Hinton Jr., Panel Chair
                 Ms. Ann-Cecile M. McDermott, Member
                 Mr. Michael V. Barbino, Member





The following documentary evidence pertaining to AFBCMR Docket  Number
BC-2004-02683 was considered:

      Exhibit A. DD Form 149, dated 17 Sep 04.
      Exhibit B. Applicant's Master Personnel Records.
      Exhibit C. Letter, AFLSA/JAJM, dated 16 Nov 04.
      Exhibit D. Letter, SAF/MRBR, dated 19 Nov 04.




                             ROSCOE HINTON JR.
                             Panel Chair