RECORD OF PROCEEDINGS
             AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS

IN THE MATTER OF:      DOCKET NUMBER:  BC-2005-03663
                             INDEX CODE:  110.00

                             COUNSEL: None

                             HEARING DESIRED: No

MANDATORY CASE COMPLETION DATE:  9 SEP 06

_________________________________________________________________

APPLICANT REQUESTS THAT:

His bad conduct discharge (BCD) be upgraded.
_________________________________________________________________

APPLICANT CONTENDS THAT:

Despite the fact he was being court-martialed, his  conduct  and  duty
performance did not falter.  He made  a  mistake  and  has  worked  to
become a better person.  He has stayed away from drugs and works  hard
as a civilian correctional officer at a juvenile detention center.  He
requests this upgrade because he cannot be considered for  advancement
to deputy, because his BCD precludes him from carrying a weapon.

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

_________________________________________________________________

STATEMENT OF FACTS:

The applicant enlisted in the Regular Air  Force  (RegAF)  on  28 July
1999, as an airman basic (AB) for a period of four years.

On 7 June 2001, charges were preferred  against  the  applicant  under
Article 112a for one specification of wrongful  use  of  a  controlled
substance (Ecstasy.

On 20 November 2001, the applicant submitted a request for a Discharge
in Lieu of Trial by Court-Martial.  On 28 November 2001, the commander
denied the applicant’s request for Discharge in Lieu of Trial by Court-
Martial.

The applicant was tried by general court martial on 25 June 2002 for:

Charge:  Wrongful Use of a Controlled Substance
      Specification:  did within the  Continental  United  States,  on
divers occasions between on or about 1 September 2000 and on or  about
4  December  2000,  wrongfully  use   3,4-methylendioxymethamphetamine
(MDMA, Ectasy), a Schedule I controlled substance.

On 25 January 2002, pursuant with the applicant’s plea, he  was  found
guilty.  His sentence consisted of reduction to the  grade  of  airman
basic (AB), confinement for one month  and  a  Bad  Conduct  Discharge
(BCD).

On 25 June 2002, the United States Air Force Court of Criminal Appeals
affirmed the findings and sentence.

On 11 October 2002, the final court-martial order was issued directing
that the bad conduct discharge be executed.

Applicant was discharged from the Regular Air Force on 11  June  2003,
in the grade of airman basic, under the provisions of  General  Court-
Martial Order No. 1, and was furnished a bad  conduct  discharge.   He
had completed 4 years, 2 months and 10 days of active service  with  2
months and 4 days lost time.

Pursuant to the Board’s request, the Federal Bureau of  Investigation,
Washington, D.C., provided an investigative report which  is  attached
at Exhibit C.  The report was not forwarded to the  applicant  because
the only entry was the incident related to his court-martial.

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AIR FORCE EVALUATION:

AFLSA/JAJM recommends the requested relief be denied.  JAJM states  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  there  is  no  legal  basis  for  upgrading  the
applicant’s discharge.  The applicant does  not  identify  a  specific
error or injustice that occurred  during  the  court-martial  process.
Therefore, any decisions regarding his
discharge status must be done as a matter of clemency.  The applicant,
however, has not provided any support to warrant an upgrade  based  on
clemency.  Although the applicant’s  promotion  opportunities  may  be
affected by his discharge status, nothing he  presents  suggests  that
his discharged was mischaracterized or that the circumstances  warrant
clemency.  The applicant’s punishment was well within the legal limits
and was an appropriate punishment for the offense committed.

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

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APPLICANT'S REVIEW OF AIR FORCE EVALUATION:

A copy of the Air Force evaluation was forwarded to the  applicant  on
24 February 2006, for review  and  response.   As  of  this  date,  no
response has been received by this office.

On 9 March 2006, the Board  staff  requested  the  applicant  provided
documentation regarding his activities since leaving military  service
(Exhibit F).

_________________________________________________________________

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.   We  took  notice  of  the
applicant’s complete submission in judging the  merits  of  the  case;
however, we agree with the opinion and recommendation of the Air Force
office of primary responsibility and adopt its rationale as the  basis
for our conclusion that the applicant has not been the  victim  of  an
error or injustice.  The evidence of  record  indicates  that  he  was
sentenced to a BCD, confinement for one month, and  reduction  to  the
grade of airman basic as a result of his conviction by general  court-
martial for wrongful use of a controlled substance.  He  now  requests
that his BCD be upgraded on the basis that he can  not  be  considered
for career advancement because the BCD precludes him from  carrying  a
weapon.  After a thorough review of the  facts  and  circumstances  of
this case, we find no evidence which indicates  that  the  applicant’s
BCD was improper or that it exceeded the limitations set forth in  the
Uniform Code of Military Justice (UCMJ).  Furthermore, while  we  note
his apparent successful transition to civilian life, we  do  not  find
upgrading the applicant’s BCD based
on clemency appropriate in this case due to the serious nature of  the
offense he committed.  In view of the foregoing, and in the absence of
sufficient evidence to the contrary, we find no  compelling  basis  to
recommend granting the relief sought in this application.

_________________________________________________________________

THE BOARD DETERMINES THAT:

The  applicant  is  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-
2005-03663 in Executive Session on 24 May 2006 under the provisions of
AFI 36-2603:

                             Mr. Michael J. Novel, Panel Chair
                             Mr. Reginald P. Howard, Member
                             Mr. James A. Wolffe, Member

The following documentary evidence was considered:

   Exhibit A.  DD Form 149, dated 7 Dec 05, w/atchs.
   Exhibit B.  Master Personnel Records.
   Exhibit C.  FBI Report.
   Exhibit D.  Letter, AFLSA/JAJM, dated 13 Feb 06.
   Exhibit E.  Letter, SAF/MRBR, dated 24 Feb 06.
   Exhibit F.  Letter, AFBCMR, dated 9 Mar 06, w/atch.




                                        MICHAEL J. NOVEL
                                        Panel Chair