RECORD OF PROCEEDINGS
             AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS


IN THE MATTER OF:      DOCKET NUMBER:  BC-2005-03552
            INDEX CODE:  110.00

            COUNSEL:  NONE

            HEARING DESIRED:  NO

MANDATORY CASE COMPLETION DATE:  25 MAY 07

______________________________________________________________

APPLICANT REQUESTS THAT:

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


APPLICANT CONTENDS THAT:

He believes his discharge to be  an  injustice  and  the  harshness  of  the
penalty is still in effect.  His peers have had  their  discharges  upgraded
with professional assistance.  He  has  had  no  help  or  assistance  until
recently.   Twelve  years  of  honorable  service  followed  by  a  terrible
experiment with marijuana and his career ended.  He still has the stigma  of
having disgraced his country and feels he has paid his dues to society.   He
has educated himself and has performed duties as  an  automobile  technician
for a car dealership for 12 years.

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

______________________________________________________________

STATEMENT OF FACTS:

On 28 December 1976, the applicant enlisted in the Regular Air Force in  the
grade of airman basic for a period of four years.

On 19 December 1977, the applicant was notified of  his  commander’s  intent
to impose nonjudicial punishment upon him for  the  following:   He  did  at
Grissom Air Force Base, Indiana, on or about 15  December  1977,  wrongfully
have in his possession some marijuana.


After consulting with counsel, the applicant waived his right to a trial  by
court-martial,  did  not  submit  a  written  presentation  in  his  behalf;
however, he requested an oral presentation.

On 22 December 1977, he was found guilty by his commander  who  imposed  the
following punishment:  a  forfeiture  of  $100.00  pay  per  month  for  two
months.  The  execution  of  the  portion  of  the  punishment  relating  to
forfeiture in  excess  of  $50.00  per  month  for  two  months  was  hereby
suspended until 21 June 1978, at  which  time,  unless  the  suspension  was
sooner vacated, it would have been remitted without further action.

The applicant did not appeal the punishment.

On 24 February 1978, the applicant requested that  the  unsuspended  portion
of the punishment relating to the suspended forfeiture of $50.00  per  month
for two months be remitted effective 1 March 1978.

On 28 February 1978, the commander remitted  the  unserved  portion  of  the
punishment relating to the suspended forfeiture of $50.00 per month for  two
months effective immediately.

On 21 December 1982, the applicant was notified of  his  commander’s  intent
to impose nonjudicial punishment upon him for  the  following:   he  did  at
Grissom Air Force Base, Indiana, on or about 18 December 1982, at  the  main
gate, operate a vehicle, to wit: a passenger car, while drunk.

After consulting with counsel, the applicant waived his right to a trial  by
court-martial,  did  not  submit  a  written  presentation  in  his  behalf;
however, he requested an oral presentation.

On 30 December 1982, the applicant was found guilty  by  his  commander  who
imposed the following punishment:  a reduction in  grade  from  sergeant  to
airman first class, a forfeiture of $100.00 pay per month  for  two  months.
The execution of the portion of the punishment which provided for  reduction
to the grade of airman first class was suspended  until  31  March  1983  at
which time, unless the suspension was sooner vacated,  it  would  have  been
remitted without further action.

The applicant did not appeal the punishment.

On 16 April 1990, the applicant was convicted  by  a  general  court-martial
for the following offense:

Charge:  Violation of the Uniform Code of Military Justice  (UCMJ),  Article
112a.

Specification:  The applicant did on or about 19 December  1989  and  on  or
about 29 December 1989, wrongfully use marijuana.

The applicant was found guilty of the  specification  and  charge.   He  was
sentenced to confinement at hard labor for two months, a reduction in  grade
from staff sergeant to airman first  class,  and  a  bad  conduct  discharge
(BCD).

The sentence was adjudged on 23 March 1990.

The Air Force Court of Military Review, dated  30  October  1990,  indicates
the applicant was  convicted  of  using  marijuana.   At  the  time  of  the
offense, the applicant was a 35 year old Noncommissioned Officer (NCO)  with
over 13 years of service.  He used marijuana a few days before he was to  go
back on alert as a KC-135  boom  operator.   As  an  NCO  of  several  years
standing, the applicant knew or should have known of the Air Force’s  stance
on drug abuse particularly after having received an Article 15 early in  his
career for marijuana  possession.   Therefore,  the  fact  that  a  punitive
discharge was adjudged and approved after his drug abuse conviction  was  no
surprise.  They concluded the findings and sentence are correct in  law  and
fact, the  sentence  was  appropriate,  and  no  error  prejudicial  to  the
substantial rights of the accused was committed.  Accordingly, the  findings
of guilty and the sentence was affirmed.

General Court-Martial Order No.  59,  dated  30  March  1992  indicates  the
applicant’s sentence  to  a  bad  conduct  discharge,  confinement  for  two
months, and reduction to airman  first  class,  as  promulgated  in  General
Court-Martial Order No. 90, had been affirmed.  The  BCD  was  executed  and
the sentence was adjudged on 23 March 1990.

On 30 March 1992, the applicant was discharged with a bad conduct  discharge
in the grade of airman first class under the provisions of GCMO  #59,  dated
30 March 1992, Conviction  by  Court-Martial  (Other  Than  Desertion).   He
served 15 years, 1 month, and 9 days of total active duty service.

Pursuant to the Board’s request, the Federal Bureau of Investigation  (FBI),
Clarksburg, West Virginia, provided an Investigative  Report,  which  is  at
Exhibit C.

______________________________________________________________

AIR FORCE EVALUATION:

AFLSA/JAJM recommended denial indicating the  applicant  is  not  contending
that a specific error had occurred which  required  the  correction  of  his
court-martial  record.   Thus,  any  decision  regarding   the   applicant’s
discharge status would be done as a matter of clemency.  There is  no  basis
for any relief as to the sentence.  The applicant  previously  has  asserted
that his sentence was inappropriately severe on his appeal to the Air  Force
Court of Military Review (now the Air Force Court of Criminal Appeals).   As
the Court noted, at the time of issuing its opinion, the  applicant  was  “a
noncommissioned officer of several years standing” who “knew or should  have
known of the Air Force’s stance on drug  abuse,  particularly  after  having
received an Article 15 early in his career for marijuana  possession.”   The
applicant’s sentence of reduction in rank, two months confinement and a  bad
conduct discharge was well within the legal limits and  was  an  appropriate
punishment for the offenses committed.

While clemency is an option, there is no reason for the  Board  to  exercise
clemency in this case.  It seems clear that  the  applicant  is  looking  to
improve his difficult situation with military or veterans’ benefits.   Being
denied these benefits, the applicant feels discriminated  against  based  on
his discharge characterization.   The  applicant  presents  no  evidence  to
warrant upgrading his discharge characterization, and does  not  demonstrate
an equitable basis for relief.  In addition, his  request,  made  more  than
ten years after the court-martial, is untimely.

The evaluation is at Exhibit D.

______________________________________________________________

APPLICANT'S REVIEW OF AIR FORCE EVALUATION:

The applicant reviewed the evaluation  and  indicated  he  agrees  with  the
punishment he received although he  feels  the  discharge  is  too  harsh  -
especially now that he’s having difficulty attaining a decent job.   Finding
a job that is of any value is difficult.  He notes  that  airmen  today  are
not punished as harshly as  per  base  newspapers  that  he  has  read.   It
appears each base deals differently  between  ranks  and  or  location.   He
further indicates he does not want to depend on Medicare, welfare  or  Uncle
Sam in any way if he can help it - and this upgrade would clearly  do  that.
He gave 13 honorable years of service  working  on  aircraft  fuel  systems,
flight operations as a boomer, and as an instructor where  he  was  selected
to help design,  develop,  build  facilities,  and  implement  the  Enlisted
Aircrew Qualification Course which is still in operation at Sheppard AFB.

The applicant’s response is at Exhibit F.

On 22 February 2006, the Board staff requested the applicant  provide  post-
service documentation within 20 days (Exhibit G).   The  applicant  provided
additional documentation which is at Exhibit H.

On 7 March 2006, the applicant was provided the opportunity  to  respond  to
the FBI investigation within 14 days (Exhibit  I).   As  of  this  date,  no
response has been received by this office.

______________________________________________________________




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  an  injustice.   After  thoroughly  reviewing  the
evidence of record, we  find  no  evidence  to  show  that  the  applicant’s
discharge as a result of his conviction by court-martial  was  erroneous  or
unjust.  While the applicant believes his discharge should be  upgraded,  we
note  the  military  judge  concluded  that  a  punitive  discharge  was  an
appropriate punishment and the convening authority approved  the  discharge.
In view of the foregoing, we agree with the opinion  and  recommendation  of
the Military Justice Division and  adopt  the  rationale  expressed  as  the
basis for our decision that the applicant has failed to sustain  his  burden
that he has suffered either an error or an injustice.   Moreover,  based  on
the evidence of record, we find no compelling basis  to  recommend  granting
the relief sought on the basis of clemency.

______________________________________________________________

THE BOARD DETERMINES THAT:

The applicant be notified the evidence presented  did  not  demonstrate  the
existence of an error or an injustice; the application was denied without  a
personal appearance; and 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 6 April 2006, under the provisions of AFI 36-2603:


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










The following documentary evidence pertaining to AFBCMR  Docket  Number  BC-
2005-03552 was considered:

   Exhibit A.  DD Form 149, dated 28 November 2005, w/atchs.
   Exhibit B.  Applicant’s Master Personnel Records.
   Exhibit C.  FBI Report.
   Exhibit D.  Letter, AFLSA/JAJM, 19 January 2006.
   Exhibit E.  Letter, SAF/MRBR, dated 27 January 2006, w/atch.
   Exhibit F.  Letter, Applicant, dated 15 February 2006.
   Exhibit G.  Letter, AFBCMR, dated 22 February 2006, w/atch.
   Exhibit H.  Letter, Applicant, dated 6 March 2006, w/atchs.
   Exhibit I.  Letter, AFBCMR, dated 7 March 2006, w/atch.




                       JAMES W. RUSSELL III
                       Panel Chair