RECORD OF PROCEEDINGS
             AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS

IN THE MATTER OF:      DOCKET NUMBER:  BC-2005-01792
                             INDEX CODE:  110.00

                             COUNSEL: None

                             HEARING DESIRED: No

MANDATORY CASE COMPLETION DATE:  7 DEC 06

_________________________________________________________________

APPLICANT REQUESTS THAT:

His bad conduct discharge (BCD) be upgraded.
_________________________________________________________________

APPLICANT CONTENDS THAT:

He pleaded guilty to the use of marijuana and cocaine when in fact the
illegal substance  could  not  have  been  ingested  due  to  a  clean
urinalysis and DNA sample.  He was young  and  scared.   He  made  the
wrong plea.  He should have pleaded not guilty.

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

_________________________________________________________________

STATEMENT OF FACTS:

Applicant enlisted in the Regular Air Force on 21  July  1994,  as  an
airman basic (AB) for a period of four years.

On 12 May 1995, the applicant was referred to  Mental  Health  by  his
supervisor for a Sanity Board determination.

On 30 June 1995, charges were  preferred  against  the  applicant  for
wrongful use of marijuana and cocaine on or about 7 April 1995.

On 10 July 1995, a request was submitted requesting the  applicant  be
evaluated by a Sanity Board.

On 9 August 1995, the Sanity  Board  diagnosed  the  applicant  as  an
alcohol abuser, with dysthmic and  borderline  personality  disorders.
The board further determined the applicant was able to appreciate  the
nature, quality and wrongfulness of his conduct; and had the  capacity
to understand the nature of the proceedings and conduct and  cooperate
intelligently in his defense.

On 18  September  1995,  the  applicant  submitted  a  request  to  be
discharged  in  lieu  of  a  trial  by  court-martial.   However,   on
24 September 1995,  the  approval  authority  denied  the  applicant’s
request to be discharged in lieu of a trial by court-martial.

On 26 September 1995, the applicant was  tried  by  a  General  Court-
Martial for wrongful use of marijuana and cocaine for  which  he  pled
guilty.  He was sentenced to a reduction  in  rank  to  airman  basic,
forfeiture of all pay and allowances and to be discharged with  a  bad
conduct discharge.  The convening authority  reduced  the  applicant’s
sentence by changing the forfeiture  of  all  pay  and  allowances  to
forfeiture of $560.00 a month for 12 months,  but  otherwise  approved
the sentence.

On 20  February  1996,  the  applicant  received  an  Article  15  for
wrongfully consuming an alcoholic beverage while  underage  and  being
drunk  and  disorderly  on  or  about  11  February  1996.   For  this
misconduct, his punishment consisted of forfeiture of $50.00  pay  per
month for 2 months and 45 days of extra duty.

On 19 March 1996, the applicant was tried by a  General  Court-Martial
and found guilty of wrongfully consuming an alcoholic  beverage  while
underage and being drunk and disorderly on or about 2-3 December 1995.
 The applicant was sentenced to a bad conduct discharge, forfeiture of
$500.00 of pay a month for six months and confinement for six  months.
The entire sentence was approved,  and  except  for  the  bad  conduct
discharge, would be executed.

After appellate review on 5 August  1996,  per  General  Court-Martial
Order No. 53, the convening authority approved the  execution  of  the
bad conduct discharge associated with the  court-martial  adjudged  on
26 September 1995.

General Court-Martial Order No. 5, dated 4 November 1996, which  dealt
with the 19 March 1996 court-martial  disapproved  and  dismissed  the
findings of guilty for Charge I  and  its  specification  per  General
Court-Martial Order No. 42, dated 23 May 1996.   The  portion  of  the
sentence which directed three months of confinement was approved.  The
applicant withdrew his rights for an appellate review.   The  sentence
was adjudged on 19 March 1996.

The applicant was discharged on 16 May 1998, in the  grade  of  airman
basic with the character of his service described as bad conduct.   He
served three years and two months of active  duty  service  with  lost
time from 19 May 1996 through 15 September 1996.

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 the 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.  The applicant believes the negative drug  test
should have exonerated him.  He applicant admitted to using  marijuana
and cocaine during questioning by investigators.  He  also  stated  he
knew  using  the  drugs  was  wrong.   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.

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
16 September 2005, for review and response.

On 20 October 2005, the Board staff forwarded the applicant a copy  of
the FBI report for his review and  response.   As  of  this  date,  no
response has been received (Exhibit F).

The applicant reviewed the Air Force  evaluation  and  states  he  was
young and ignorant of how the law worked and was scared  to  death  of
going to prison.  If his drug test came up clean, how  could  he  have
ingested the drugs? He further states he incriminated himself  out  of
fear.

He is married with a family.  He has worked as a juvenile  corrections
officer.  He worked for five years for the State of Texas in a  mental
facility.  He has  been  a  security  officer  for  over  three  years
(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.   The  applicant  contends  his
negative drug test should have  exonerated  him.   The  applicant  was
questioned during the court-martial as to  why  he  believed  he  used
illegal drugs once he knew the drug test was negative.   His  response
was he believed he smoked marijuana because of the way  the  substance
looked and smelled; and the individual told him it was  cocaine.   The
applicant  presents  no  evidence  that  he  was  not   afforded   the
opportunity during the trial to  present  extenuating  and  mitigating
evidence.  Furthermore, he presents no evidence which  would  persuade
the Board to consider clemency in his case.  In fact, a review of  his
FBI report indicates he appears to have continued his misconduct after
leaving the service even  though  the  charges  appear  to  have  been
dismissed for various reasons.  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 AFBCMR Docket Number BC-
2005-01792 in Executive Session on 4 January 2006 under the provisions
of AFI 36-2603:

                                  Mr.  James  W.  Russell  III,  Panel
Chair
                                  Ms. Barbara R. Murray, Member
                                  Ms. Josephine L. Davis, Member

The following documentary evidence was considered:

      Exhibit A. DD Form 149, dated 1 Jun 05, w/atchs.
      Exhibit B. Master Personnel Records.
      Exhibit C. FBI Report.
      Exhibit D. Letter, AFLSA/JAJM, dated 6 Sep 05.
      Exhibit E. Letter, SAF/MRBR, dated 16 Sep 05.
      Exhibit F. Letter, AFBCMR, dated 20 Oct 05, w/atch.
      Exhibit G. Letter, Applicant, undated.




                                        JAMES W. RUSSELL III
                                        Panel Chair