RECORD OF PROCEEDINGS
             AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS

IN THE MATTER OF:      DOCKET NUMBER:  BC-2004-02920
            INDEX CODE:  110.02
            COUNSEL:  NONE

            HEARING DESIRED:  YES

MANDATORY CASE COMPLETION DATE:  21 MARCH 2006

_________________________________________________________________

APPLICANT REQUESTS THAT:

His bad conduct discharge (BCD) be upgraded to a general discharge.

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APPLICANT CONTENDS THAT:

He  had  no  prior  knowledge  or   education   pertaining   to   the   term
“distribution” or its long-term repercussions.   Although  the  availability
of the drug does not excuse him for participating in its use, his  ignorance
to the reality of the crime committed does.  At his base, there was no  form
of  drug  awareness  training  or  education  that  discussed  the  offense,
distribution,  or  existence.   He  was  20  years  old  at  the   time   of
investigation, in a scary situation surrounded by high-ranking officers  and
investigators.  He was facing  25  years  of  confinement,  and  his  lawyer
informed him of an offer  for  an  11-month  pre-trial  agreement  which  he
accepted.  He now wishes his lawyer would have done more  to  represent  him
and fought the distribution charge.  He would like to meet  with  the  Board
to have this matter resolved.

In support  of  the  application,  the  applicant  submits  a  copy  of  his
separation document (DD 214).  The  applicant's  complete  submission,  with
attachments, is at Exhibit A.

_________________________________________________________________

STATEMENT OF FACTS:

On 8 July 1998, the applicant enlisted in  the  Regular  Air  Force  in  the
grade of airman basic (E-1) at the age of 19 for a  period  of  four  years.
The applicant received one Enlisted  Performance  Report  (EPR)  closing  20
March 2000, in which the promotion recommendation was  “4.”   Prior  to  the
events under review, the applicant was promoted to the grade of  airman  (E-
2).

On  5  November  1998,  the  applicant’s   commander   imposed   nonjudicial
punishment on him under Article 15, UCMJ, based  on  his  determination  the
applicant had wrongfully consumed alcoholic beverages while under the  legal
drinking age and while in a student dormitory, on or about 18 October  1998.
 Punishment consisted of forfeiture of $428.00 of his  pay  (suspended),  30
days of correctional custody, and a reprimand.   On  3  December  1998,  the
commander remitted a portion of the punishment  pertaining  to  correctional
custody.

On 27 July 2000,  pursuant  to  his  pleas  of  guilty,  the  applicant  was
convicted by a general court-martial of one specification  of  wrongful  use
of  methylenedioxymethamphetamine   (commonly   known   as   ecstasy),   one
specification of wrongful distribution of ecstasy on  diverse  occasions  on
or  about  1  July  1999  and  on  or  about  30 November  1999,   and   one
specification of wrongful use of marijuana between on  or  about  1  October
1999 and on or about 31 October 1999, in violation of  Article  112a,  UCMJ.
The applicant was sentenced to be reduced in grade to airman  basic,  to  be
confined for twelve  months,  and  to  be  discharged  with  a  bad  conduct
discharge.   On  30  August  2000,  the  convening  authority  approved  the
findings and sentence and, except for the  bad  conduct  discharge,  ordered
the sentence  into  execution.   On  30 April  2001,  having  completed  the
portion of the sentence pertaining to confinement, the applicant was  placed
in appellate review leave status.  On 6 June 2001,  the  United  States  Air
Force  Court  of  Criminal  Appeals  reviewed  the  applicant’s   conviction
pursuant to Article 66 of the UCMJ and affirmed the findings  and  sentence.
Because the applicant did not submit a petition for  review  to  the  United
States Court of Appeals for the Armed Forces, a review was not made in  that
court.

On  7  August  2001,  the  applicant  was  discharged  with  a  bad  conduct
discharge.  He had served 2 years, 3 months and 7 days on active  duty.   He
had 277 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:

HQ AFLSA/JAJM recommends denial.  JAJM states  the  applicant’s  request  is
untimely, and without merit.  JAJM opines there is no  basis  for  upgrading
the applicant’s discharge.  JAJM states the  sentence  given  the  applicant
was well within the legal limits and  was  appropriate  punishment  for  the
offense committed.   The  applicant  had  the  assistance  of  counsel,  and
although the applicant now claims his  counsel  should  have  done  more  in
representing him on  the  distribution  specification,  the  applicant  pled
guilty to the distribution charge.  A guilty plea is the strongest  form  of
proof known to the law.  JAJM notes the maximum  punishment  authorized  for
the offenses for which  the  applicant  was  convicted  was  a  dishonorable
discharge, forfeiture of all  pay  and  allowances,  reduction  to  E-1  and
confinement for 25 years.

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 19 November 2004.  As of this date,  this  office  has
received no response (Exhibit D).

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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 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 probable 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 in  Executive  Session  on  17
May 2005 under the provisions of AFI 36-2603:

      Ms. B. J. White-Olson, Panel Chair
      Ms. Patricia R. Collins, Member
      Ms. Janet I. Hassan, Member

The following documentary evidence was considered in connection with  AFBCMR
Docket Number BC-2004-02920:

    Exhibit A.  DD Form 149, dated Aug 31, 2004.
    Exhibit B.  Applicant's Master Personnel Records.
    Exhibit C.  Letter, AFLSA/JAJM, dated 16 Nov 2004.
    Exhibit D.  Letter, SAF/MRBR, dated 19 Nov 04.



      B. J. WHITE-OLSON
      Panel Chair