RECORD OF PROCEEDINGS
         AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS

IN THE MATTER OF:      DOCKET NUMBER:  BC-2005-02376
            INDEX CODE:  110.02

      XXXXXXX    COUNSEL:  NONE

      XXXXXXX    HEARING DESIRED: NO


MANDATORY CASE COMPLETION DATE:  1 FEB 2007


___________________________________________________________________

APPLICANT REQUESTS THAT:

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

___________________________________________________________________

APPLICANT CONTENDS THAT:

He served his country honorably for 14 years  and  his  BCD  places
limitations on his employment opportunities.

Applicant’s complete submission is at Exhibit A.

___________________________________________________________________

STATEMENT OF FACTS:

Applicant enlisted in the Regular Air Force on 18  Jun  74  in  the
grade of airman basic (E-1).  He served on continuous  active  duty
and entered his last enlistment on 15 Jun 87.

On or about (o/a) 24 May 75, applicant disobeyed a lawful order  by
entering into and remaining in a WAF dormitory  bedroom  which  was
off-limits to male personnel.  For this  offense,  he  received  an
Article 15.  His punishment consisted of forfeiture of $25 of pay.

O/a 21 Mar 78, applicant unlawfully entered Room  210,  Bldg  2409,
and committed an indecent assault upon a female airman.   For  this
offense, he received an Article 15.  His punishment consisted of  a
suspended reduction in grade to airman first class  and  forfeiture
of $75 pay per month for two months.

He was promoted to the grade of technical sergeant (E-6),  with  an
effective date and date of rank of 1 Dec 88.

A resume of applicant’s airman performance reports (APRs) follows:

            PERIOD CLOSING              OVERALL EVALUATION

                 30 Nov 85                                    9
                 30 Nov 86                                    9
                 30 Sep 87                                    9
                 28 Nov 88                                    9
                 16 Jul 89                                    9

On 19 Dec 89, applicant was tried by General Court-Martial.  He was
charged with two specifications  of  wrongful  use  of  cocaine  in
violation of Article 112a, UCMJ, (o/a 1 Jul 89 to o/a 6 Jul 89  and
o/a 30 Jul 89 to o/a 4 Aug 89).  Applicant pled not guilty to  both
specifications but was found guilty.  He was sentenced to reduction
in  grade  to  airman  basic  (E-1),  forfeiture  of  all  pay  and
allowances, confinement for 10 months, and a bad conduct discharge.

On 14 Sep 90, he was discharged  pursuant  to  the  General  Court-
Martial Order with a bad conduct discharge.  He was  credited  with
15 years, 4 months, and 26 days of active duty (excludes time  lost
for confinement from 19 Dec 89 to 1 Aug 90).

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

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AIR FORCE EVALUATION:

AFLSA/JAJM recommended denial of the applicant’s  request  to  have
his bad conduct discharge  upgraded  to  general  (under  honorable
conditions).  The applicant, then a technical  sergeant,  pled  not
guilty to cocaine use at a general court-martial.  The judge  found
him guilty and sentenced him to a bad conduct discharge, 10  months
confinement, forfeiture of all pay and allowances, and reduction to
E-1.

The United States Air Force Court of Military  Review  (now  called
the United States Air Force Court of Criminal Appeals) reviewed the
applicant’s conviction.  On  7  Mar  90,  the  court  affirmed  the
conviction and the sentence.  The applicant appealed to the  United
States Court of Military Appeals  (now  called  the  United  States
Court of Appeals for the Armed Forces) for review, which was denied
on 26 Jul 90.

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
his bad conduct discharge.  The applicant  was  thus  afforded  all
rights granted by statute and regulation.

Further, the applicant’s punitive discharge accurately reflects the
character of his service.  The use of cocaine is clearly proscribed
and is considered  a  dishonorable  act.   The  maximum  punishment
authorized for the offenses for which the applicant  was  convicted
was a dishonorable  discharge,  confinement  for  10  years,  total
forfeitures of all pay and allowances, and reduction to  E-1.   The
applicant’s sentence was well within the legal  limits  and  was  a
fitting  punishment  for  the  offenses  committed.   Because   the
sentence appropriately reflected the seriousness of the applicant’s
crimes, an upgrade in discharge characterization is inappropriate.

A complete copy of the evaluation is at Exhibit D.

___________________________________________________________________

APPLICANT'S REVIEW OF AIR FORCE EVALUATION:

He states  he  consented  to  a  test  by  the  Office  of  Special
Investigations  (OSI)  on  a  Saturday.   The   defense   presented
information that his drink was laced with cocaine.   He  was  later
tested on the following Monday, 48 hours after  the  initial  test;
however, because it takes three  days  to  clear  your  system,  he
should not have been tested until that Tuesday.   This  would  have
proven conclusively whether he was using cocaine or not.   He  adds
that the second time he was tested was commander directed.

Applicant’s complete response is at 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 to timely file.

3.  Insufficient  relevant   evidence   has   been   presented   to
demonstrate the  existence  of  error  or  injustice.   Applicant’s
contentions are duly noted.  However, we do not find his  arguments
sufficiently persuasive to override the rationale provided  by  the
Associate Chief, Military Justice Division.  The evidence of record
reflects the applicant was convicted by general  court-martial  for
wrongful use of cocaine resulting in a bad conduct  discharge.   No
evidence has been presented which would lead us to believe that the
applicant’s service characterization was  improper.   Additionally,
we  note   applicant’s   prior   honorable   period   of   service.
Nonetheless, in view of the seriousness of the  offenses  committed
during the period of service under review, the contents of the  FBI
report, and the absence of evidence  related  to  his  post-service
activities and  accomplishments,  we  are  not  persuaded  that  an
upgrade of the characterization of his discharge  is  warranted  on
the basis of clemency.  Therefore, in  the  absence  of  persuasive
evidence to the contrary, we adopt the Air Force rationale  as  the
basis for our conclusion that the applicant has not been the victim
of an error or injustice and  conclude  that  no  basis  exists  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 AFBCMR Docket  Number
BC-2005-02376 in Executive Session on 29 November 2005,  under  the
provisions of AFI 36-2603:

      Mr. Michael J. Novel, Panel Chair
      Mr. Grover L. Dunn, Member
      Ms. Jan Mulligan, Member

The following documentary evidence was considered:

    Exhibit A.  DD Form 149, dated 1 Aug 05, w/atch.
    Exhibit B.  Applicant's Master Personnel Records.
    Exhibit C.  FBI Report of Investigation.
    Exhibit D.  Letter, AFLSA/JAJM, dated 30 Aug 05.
    Exhibit E.  Letter, SAF/MRBR, dated 9 Sep 05.
    Exhibit F.  Letter, AFBCMR, dated 20 Oct 05.
    Exhibit G.  Letter, Applicant, dated 27 Oct 05.




                                   MICHAEL J. NOVEL
                                   Panel Chair