RECORD OF PROCEEDINGS
         AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS


IN THE MATTER OF:      DOCKET NUMBER:  BC-2004-03289
            INDEX CODE:  A68.00

            COUNSEL:  GARY R. MYERS

            HEARING DESIRED:  YES

MANDATORY CASE COMPLETION DATE:  26 Apr 06


_________________________________________________________________

APPLICANT REQUESTS THAT:

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

By amendment, he requests the designation in the  titling  action  and
the National Crime Records Center records with respect to  his  court-
martial conviction be changed from a felony to a misdemeanor.

_________________________________________________________________

APPLICANT CONTENDS THAT:

A psychiatric condition associated with his conduct as a  teenager  of
19 years  in  1987  created  a  one-time  event  of  nominal  criminal
consequence, which he has paid for a lifetime.   Since  then,  he  has
lived an exemplary life free  of  misconduct.   However,  this  single
incident has served as an impediment to his progress.

It is baffling that his case went to a  general-court  martial.   That
there was no psychiatric testimony in the sentencing phase  is  simply
not understandable.

In support of his appeal, the applicant provided  a  counsel’s  brief,
extracts from his military records, a Stipulation  of  Fact,  personal
statement, and documentation pertaining to an Article 39 (a) Session.

Applicant’s complete submission, with attachments, is at Exhibit A.

_________________________________________________________________

STATEMENT OF FACTS:

The applicant enlisted in the Regular Air Force on  1  Aug  86  for  a
period of six years in the grade of airman first class.

On 16 Jun 87, the applicant was convicted by general court-martial  of
wrongful use of valium and wrongful possession  of  valium,  fentanyl,
and midazolam.  He was sentenced to a BCD, confinement for six months,
total forfeitures of all pay and  allowances,  and  reduction  to  the
grade of airman basic.  The convening authority approved the  sentence
as adjudged.

On 4 Apr 88, the approved sentence of the general court-martial having
been affirmed, the applicant’s discharge was ordered  into  execution.
He was discharged on 15 Apr 88 with a BCD.  He  was  credited  with  1
year, 3 months, and 21 days of active service, with 4  months  and  23
days of lost time.

_________________________________________________________________

AIR FORCE EVALUATION:

AFLSA/JAJM recommended  denial  indicating  the  court  and  convening
authority  were  presented  with  information  and  argument  on   the
circumstances surrounding the applicant’s offenses.   The  applicant’s
BCD reflected the punishment the general court-martial found warranted
by the evidence.  The maximum punishment authorized  for  the  offense
for which the applicant was convicted was  a  dishonorable  discharge,
confinement for seven years, total forfeitures, and reduction to  E-1.
The applicant’s sentence was within the legal limits.   In  AFLSA/JAJM
view, the applicant has identified no error of  injustice  related  to
his prosecution or the sentence.

A complete copy of the AFLSA/JAJM evaluation is at Exhibit C.

_________________________________________________________________

APPLICANT'S REVIEW OF AIR FORCE EVALUATION:

Counsel  reviewed  the  advisory  opinion  and  furnished  a  response
indicating there was nothing in this  case  that  required  a  general
court-martial.  It is inexplicable why the  applicant’s  mental  state
was not fully examined by defense counsel.  It is  time  to  let  this
perfectly decent man live a life unencumbered by the BCD.

Counsel’s complete response is at Exhibit E.

_________________________________________________________________

ADDITIONAL AIR FORCE EVALUATION:

The Medical Consultant indicated the applicant did not have  a  severe
mental disease or defect and was legally responsible for his offenses.
 However, his emotional problems manifested as an adjustment  disorder
were strongly associated with his  behavior  and  were  considered  as
mitigating factors in his sentencing at the time of his court-martial.
 According to the Medical Consultant, the Board may consider this case
on the grounds of clemency.

A complete copy of the Medical Consultant’s evaluation is  at  Exhibit
F.

_________________________________________________________________

APPLICANT'S REVIEW OF ADDITIONAL AIR FORCE EVALUATION:

Counsel indicated he did not care which procedural approach is used by
the Board.  A just result is his sole concern and, in this case,  that
means upgrading the discharge.

Counsel’s complete response is at Exhibit H.

In another response, counsel indicated the applicant had requested the
Air Force Office of Special Investigations (AFOSI) change  his  court-
martial conviction from a  felony  to  a  misdemeanor.   According  to
counsel, the AFOSI failed to totally recognize  either  the  legal  or
equitable basis  for  affecting  the  change.   Instead,  they  merely
recited the known facts without reasons for or justification  for  the
adverse decision.  Counsel believes a decision on this matter is  tied
factually to the underlying application and requests  the  designation
in the titling action and the National Crime  Records  Center  records
with respect to the applicant’s court-martial  conviction  be  changed
from a felony to a misdemeanor.

Counsel’s complete response, with attachments, is at Exhibit I.

_________________________________________________________________

ADDITIONAL AIR FORCE EVALUATION:

HQ USAF/JAA recommended denial indicating that they presume counsel is
referring to the National Crime Information Center (NCIC).   According
to HQ USAF/JAA, the NCIC is  a  nationwide  crime  information  center
administered by the Federal  Bureau  of  Investigation  (FBI)  and  is
outside the jurisdiction of the  AFBCMR  as  a  matter  of  law.   The
applicant’s counsel submitted a Privacy Act-based request in Oct 04 to
the  AFOSI  to  expunge  the  applicant’s  records  from  the  Defense
Clearance and Investigations Index (DCII).  That request was  properly
denied on 30  Dec  04  as  the  DCII  entry  correctly  reflected  the
applicant’s  involvement  in  a  criminal  offense.   The  AFOSI  also
declined the applicant’s request to recharacterize  his  record  as  a
misdemeanor.  They have been advised by the  AFOSI  that  neither  the
term “felony” or “misdemeanor” appears in  the  applicant’s  DCII  and
NCIC records.  Even if those terms did appear, the  accepted  standard
for characterizing an offense as a felony or  misdemeanor  is  whether
the offenses charged carried a maximum permissible sentence  including
more than one year confinement; it is  immaterial  that  the  sentence
adjudged may have been less than that.  In HQ USAF/JAA’s opinion,  the
applicant has failed to demonstrate the  existence  of  any  error  or
present facts and circumstances  demonstrating  the  existence  of  an
injustice.

A complete copy of the HQ USAF/JAA’s evaluation is at Exhibit J.

_________________________________________________________________

APPLICANT'S REVIEW OF ADDITIONAL AIR FORCE EVALUATION:

Counsel  reviewed  the  advisory  opinion  and  furnished  a  response
indicating that as a matter of equity, the Board  should  declare  the
applicant’s offense was a misdemeanor so that he could report it  that
way in the future.

Counsel’s complete response is at Exhibit L.

_________________________________________________________________

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.  Sufficient  relevant  evidence  has  been  presented  to   warrant
corrective action regarding the applicant’s request that  his  BCD  be
upgraded to general.  The evidence of record  reflects  the  applicant
was convicted by general court-martial of wrongful use of  valium  and
wrongful possession of valium, fentanyl, and midazolam.   No  evidence
has   been   presented   to   indicate   the    applicant’s    service
characterization, which had its basis in  his  conviction  by  general
court-martial and was a part of the sentence of  the  military  court,
was improper.  Notwithstanding this, it appears there were  mitigating
circumstances that may have contributed to the applicant’s misconduct.
  It  also  appears  he  has  been  successful  in  his   post-service
adjustment.  We believe that to continue to stigmatize him with a  BCD
would be unduly harsh and serves no useful purpose.  Therefore, we are
of the opinion that upgrading  the  applicant’s  discharge,  based  on
clemency,  would  be  appropriate  in  this  case.   Accordingly,   we
recommend the applicant’s BCD discharge be upgraded to general.

4.  Insufficient relevant evidence has been presented  to  demonstrate
the existence of error or injustice concerning the applicant’s request
the designation in the titling action and the National  Crime  Records
Center records with respect to his court-martial conviction be changed
from a felony to a  misdemeanor.   After  a  thorough  review  of  the
evidence presented, we agree with the opinion and recommendation of HQ
USAF/JAA and adopt the  rationale  presented  as  the  basis  for  our
conclusion that the applicant has not been the victim of an  error  or
injustice.  Therefore, in the absence of sufficient  evidence  to  the
contrary, we find no compelling basis to recommend favorable action on
his request.

_________________________________________________________________

THE BOARD RECOMMENDS THAT:

The pertinent military records of the  Department  of  the  Air  Force
relating to APPLICANT, be corrected to show that on 15 Apr 88, he
was discharged with service characterized as general (under  honorable
conditions).

_________________________________________________________________

The following members of the Board considered AFBCMR Docket Number BC-
2004-03289 in Executive Session on 28 Jun 05, under the provisions  of
AFI 36-2603:

      Ms. Cathlynn B. Sparks, Panel Chair
      Mr. Albert C. Ellett, Member
      Mr. Michael J. Novel, Member

All members  voted  to  correct  the  records,  as  recommended.   The
following documentary evidence was considered:

     Exhibit A.  DD Form 149, dated 14 Oct 04, w/atchs.
     Exhibit B.  Applicant's Master Personnel Records.
     Exhibit C.  Letter, AFLSA/JAJM, dated 3 Jan 05.
     Exhibit D.  Letter, SAF/MRBR, dated 7 Jan 05.
     Exhibit E.  Letter, counsel, dated 27 Jan 05.
     Exhibit F.  Letter, Medical Consultant, dated 17 Mar 05.
     Exhibit G.  Letter, AFBCMR, dated 23 Mar 05.
     Exhibit H.  Letter, counsel, dated 6 Apr 05.
     Exhibit I.  Letter, counsel, dated 6 Apr 05, w/atchs.
     Exhibit J.  Letter, HQ USAF/JAA, dated 10 May 05.
     Exhibit K.  Letter, AFBCMR, dated 16 May 05.
     Exhibit L.  Letter, counsel, dated 20 Jun 05.




                                   CATHLYNN B. SPARKS
                                   Panel Chair




AFBCMR BC-2004-03289




MEMORANDUM FOR THE CHIEF OF STAFF

      Having received and considered the recommendation of the Air
Force Board for Correction of Military Records and under the authority
of Section 1552, Title 10, United States Code (70A Stat 116), it is
directed that:

      The pertinent military records of  the  Department  of  the  Air
Force relating to , be corrected to show that on 15  Apr  88,  he  was
discharged with service  characterized  as  general  (under  honorable
conditions).






    JOE G. LINEBERGER

    Director

    Air Force Review Boards Agency