RECORD OF PROCEEDINGS
             AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS

IN THE MATTER OF:      DOCKET NUMBER:  BC-2005-00476
                             INDEX CODE:  110.00

                             COUNSEL: None

                             HEARING DESIRED: No

MANDATORY CASE COMPLETION DATE:  13 AUG 06

_________________________________________________________________

APPLICANT REQUESTS THAT:

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

APPLICANT CONTENDS THAT:

He has for the last 15 years been supporting his parents and  has  not
been in any trouble.  His father passed away in 2001. He  has  been  a
very positive and honest citizen, a Christian and a provider.  He  has
one child and would like for her to grow up knowing  he  is  a  better
person.  He would really appreciate it if this wrong could be  changed
to a right.

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

_________________________________________________________________

STATEMENT OF FACTS:

Applicant enlisted in the Regular Air Force on  18  May  1979,  as  an
airman basic (AB) for a period of four (4) years.

On 1 July 1987, the applicant received a Letter of Reprimand (LOR) for
a returned check to the Noncommissioned Officers’ Club (NCO).

On 31 July 1987, the applicant received an LOR for a returned check to
the Base Exchange.

The applicant was evaluated by the Mental Health Clinic (MHC) on 8 and
13 October 1987, for a drug evaluation due to his testing positive for
cocaine on 8 September 1987.  The medical notes  further  reflect  the
applicant admitted to using cocaine from March  1987  through  October
1987.  His drug use had at one point reached a maximum of  $500.00  in
three days.  The applicant further stated in the medical notes that he
had not used drugs in a week and prior to his stopping he was down  to
$30.00 a week.  The MHC recommended the applicant be enrolled a  local
program.  On 15 October 1987, the applicant’s commander concurred with
the recommendation of the MHC.

On 26 October 1987, the applicant’s commander notified him that he was
ineligible  to  reenlist  because  he  was   participating   in   drug
rehabilitation or the servicemember failed drug  rehabilitation.   The
applicant  acknowledged  receipt  of  the  reenlistment  ineligibility
notification on 26 October 1987.

On 23 November 1987, charges were preferred against the applicant  for
not reporting to his place of duty from 9-13  November  1987  and  for
illegal use of cocaine from 1 March 1987 to 5 October 1987.

On 21 January 1988, the applicant was tried by  general  court-martial
for being absent without leave (AWOL) and illegal use of cocaine.  The
applicant pled guilty to the AWOL and not guilty to the drug use.

On 9 March 1988, the applicant was found guilty by  a  general  court-
martial for being AWOL and wrongful use of cocaine and  was  sentenced
to a bad conduct discharge, confinement for 75 days, forfeiture of all
pay and allowances, and a reduction to the grade of airman basic.

The applicant appealed to the Air Force Court of Military  Review  and
the Court held the guilty plea for the AWOL was improvident, since his
plea inquiry raised the defense of duress as the reason for his  AWOL.
The Court voiced concern over the method used to convict the applicant
of the cocaine use,  however,  it  found  no  legal  justification  to
exclude  the  testimony  from  the  applicant’s  parents.   The  Court
dismissed the AWOL charge, and approved the cocaine charge  and  after
reassessment, affirmed the sentence as adjudged.   The  case  was  not
appealed to the United  States  Court  of  Military  Appeals.   On  22
February 1989, the final court-martial order was issued directing  the
bad conduct discharge be executed.

Applicant was discharged from the Regular  Air  Force  on  22 February
1989, in the grade of airman basic, under the  provisions  of  General
Court-Martial Order No. 49, and was furnished a bad conduct discharge.
 He had completed 9  years,  9 months  and  22  days  of  active  duty
service.

Pursuant to the Board’s request, the Federal Bureau of  Investigation,
Washington, D.C., provided an investigative report which  is  attached
at Exhibit C.

_________________________________________________________________

AIR FORCE EVALUATION:

AFLSA/JAJM states an application must  be  filed  within  three  years
after the error or injustice was discovered, or, with  due  diligence,
should have been discovered.  An application  may  be  denied  on  the
basis of being untimely, however, an untimely filing may be excused in
the interest of justice.  The applicant’s request  comes  eight  years
after his discharge.  He has not identified an error or  injustice  in
the processing of his discharge.

Under 10 USC Section 1552(f), which amended the basic correction board
legislation, the AFBCMR’s ability to correct records related to courts-
martial is limited.   Specifically,  Section  1552(f)(1)  permits  the
correction  of  a  record  to  reflect  actions  taken  by   reviewing
authorities  under  the  Uniform  Code  of  Military  Justice  (UCMJ).
Additionally, Section 1552(f)(2) permits  the  correction  of  records
related to action on the sentence of courts-martial for the purpose of
clemency.  Apart from these two  limited  exceptions,  the  effect  of
Section 1552(f) is that AFBCMR is without authority  to  reverse,  set
aside, or otherwise expunge a court-martial conviction  that  occurred
on or after 5 May 1950 (the effective date of the UMCJ).

They further state that there is no  legal  basis  for  upgrading  the
applicant’s discharge.  His sentence was within the prescribed  limits
and was a matter within the discretion of the court-martial and  could
have been mitigated by the convening authority or during the course of
the  appellate  review.   The  applicant  was  afforded   all   rights
guaranteed by statute and regulation.  He has provided  no  compelling
basis based on the circumstances of his  case  that  would  warrant  a
change in his discharge.

AFLSA/JAJM further states that while clemency is an option,  there  is
no reason for the Board to exercise clemency in the applicant’s  case.
The applicant did not serve honorably  during  this  enlistment.   The
applicant has not presented sufficient evidence to  warrant  upgrading
his discharge and therefore they recommend  the  requested  relief  be
denied.

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

_________________________________________________________________

APPLICANT'S REVIEW OF AIR FORCE EVALUATION:

A copy of the Air Force evaluation was forwarded to the  applicant  on
27 May 2005, for review and response.  As of this  date,  no  response
has been received by this office.

On 14 June 2005, the  Board  staff  requested  the  applicant  provide
documentation regarding his activities since leaving military service.
 As of this date, the applicant has not responded (Exhibit F).

On 29 June 2005, the Board staff forwarded the applicant a copy of the
FBI report for his review and response.  No response has been received
(Exhibit G).

_________________________________________________________________

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 of 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  the  applicant’s
bad conduct discharge as a result of his conviction by general  court-
martial was erroneous or unjust.  Therefore, we are in agreement  with
the assessment of the  Air  Force  office  of  primary  responsibility
concerning the sentence in  this  case.   While  we  would  ordinarily
review a case for clemency, we note the absence  of  evidence  by  the
applicant attesting to a successful transition to civilian  life.   In
view of the contents of the FBI report, the applicant appears to  have
continued his misconduct after leaving the service.  Therefore, we are
not persuaded to extend  clemency  in  this  case.   In  view  of  the
foregoing, we conclude that no basis exists to recommend granting  the
requested relief.

_________________________________________________________________

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 17 August 2005 under the provisions  of  AFI  36-
2603:

                                  Mr. Joseph G. Diamond, Panel Chair
                                  Mr. Wallace F. Beard, Jr., Member
                                  Ms. LeLoy W. Cottrell, Member

The following documentary evidence pertaining to AFBCMR Docket  Number
BC-2005-00476 was considered:

      Exhibit A. DD Form 149, dated 23 Jul 03, w/atchs.
      Exhibit B. Master Personnel Records.
      Exhibit C. FBI Report.
      Exhibit D. Letter, AFLSA/JAJM, dated 27 Aug 03.
      Exhibit E. Letter, SAF/MRBR, dated 12 Sep 03.
      Exhibit F. Letter, AFBCMR, dated 14 Jun 05.
      Exhibit G. Letter, AFBCMR, dated 29 Jun 05.




                                        JOSEPH G. DIAMOND
                                        Panel Chair