RECORD OF PROCEEDINGS
             AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS

IN THE MATTER OF:                       DOCKET NUMBER:  BC-2005-03886
                                       INDEX CODE:  110.02
      XXXXXXXXXXXXXX                    COUNSEL: NONE

      XXXXXXXXXXX                            HEARING DESIRED:  NO


MANDATORY CASE COMPLETION DATE:  24 June 2007


_________________________________________________________________

APPLICANT REQUESTS THAT:

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

_________________________________________________________________

APPLICANT CONTENDS THAT:

His discharge should be upgraded because he has become a  productive  member
of society.  During his incarceration, he began  his  transition  by  taking
classes and learning a skilled trade.  Upon his release, he  has  maintained
steady employment  and  continued  his  education.   He  assisted  with  the
hurricane relief efforts in several states in 2004 and 2005.   He’s  married
and has two children.

In support  of  his  application,  the  applicant  provides  copies  of  his
certificates of training, education records, and a marriage certificate.   A
copy of  the  applicant’s  complete  submission,  with  attachments,  is  at
Exhibit A.

_________________________________________________________________

STATEMENT OF FACTS:

On 17 September 1987, the applicant enlisted in the  Regular  Air  Force  at
the age of 19 in the grade of airman  basic  (E-1)  for  a  period  of  four
years.  He was progressively promoted to the grade of  senior  airman  (E-3)
effective and with a date of rank of 17 September  1990.   He  served  as  a
Munitions Operations Specialist.

On 18 April  1988,  the  applicant  was  temporarily  decertified  from  the
Personnel Reliability Program (PRP) because he was found  to  be  a  problem
drinker and entered into the social actions evaluation process.   On  5  May
1988, the applicant’s certification was reinstated following his  successful
completion of the Rehabilitation/Substance Abuse Control Program.

On 6 December 1990, the applicant was not selected  for  reenlistment.   His
record indicates the reason for  his  non-selection  was  that  he  did  not
possess the qualities desired of a noncommissioned officer due to  the  fact
he had been reprimanded twice, failed to make a court appearance  once,  and
had an established Unfavorable Information File.

On 6 March 1991,  the  applicant  was  charged  with  one  specification  of
wrongful use of cocaine on divers occasions between 9 November 1990  and  12
December 1990.  The applicant submitted a plea of  guilty.   He  received  a
sentence of seven months confinement, reduction in grade  to  airman  basic,
and a bad conduct discharge.  The convening authority approved the  sentence
as adjudged and  appellate  review  was  completed.   The  final  order  was
promulgated on 12 August 1991 following his period of confinement.

The applicant was discharged on 31 August 1991 with a bad conduct  discharge
with his reason for discharge as “Conviction by Court-martial.”   He  served
3 years, 5 months and 20 days of active duty.  His  time  lost  was  from  6
March 1991 through 30 August 1991.

Pursuant to the  Board’s  request,  the  Federal  Bureau  of  Investigation,
Clarksburg, WV, provided a copy of an  Investigation  Report  pertaining  to
the applicant, which is at Exhibit F.

_________________________________________________________________

AIR FORCE EVALUATION:

AFLSA/JAJM recommends denial.  It is JAJM’s  opinion  that  the  applicant’s
request is meritless.  JAJM states that under 10 United  States  Code  (USC)
1552(f),  which  amended  the  basic  corrections  board  legislation,   the
AFBCMR’s ability to correct records related to  courts-martial  is  limited.
Specifically, 10 USC 1552(f)(2)  permits  the  correction  of  a  record  to
reflect actions taken by reviewing authorities under  the  Uniform  Code  of
Military Justice (UCMJ).  Additionally, 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, however,  the
effect of 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 UCMJ).

JAJM states that the applicant is not contending any specific  actions  have
been taken by reviewing authorities that require correction of  his  record.
Thus, any decision regarding his discharge status must be done as  a  matter
of clemency.  It is JAJM’s opinion that the applicant sets  forth  no  basis
for clemency.  While he may be congratulated on finding  steady  employment,
nothing he presents suggests his discharge was mischaracterized or that  the
circumstances warrant clemency.  The applicant’s punishment was well  within
the legal limits and was appropriate punishment for the offense committed.

The JAJM evaluation is at Exhibit C.

_________________________________________________________________

APPLICANT'S REVIEW OF AIR FORCE EVALUATION:

Copies of the Air Force evaluation and the FBI report  were  forwarded  to
the applicant on 24 February 2006 and 14 March 2006 for review and comment
(Exhibits D and E).   As  of  this  date,  this  office  has  received  no
response.

_________________________________________________________________

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 probable error or injustice.  The applicant  did  not  provide
persuasive evidence showing his discharge was  erroneous  or  unjust.   The
applicant’s discharge had its basis  in  his  trial  and  conviction  by  a
military court.  There is no indication in the available record that  would
lead us to believe  that  reviewing  authorities  erred  in  approving  the
amended sentence or that the sentence exceeded the  maximum  allowable  for
the offense of which the applicant stood convicted.  Furthermore,  in  view
of the information contained in the FBI  investigative  report  and  absent
evidence by the applicant supporting his assertions of  a  successful  post
service adjustment, we do not find favorable consideration  of  his  appeal
based on clemency is appropriate.  Therefore, the  applicant’s  request  is
not favorably considered.

__________________________________________________________________

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 20 April 2006, under the provisions of AFI 36-2603:

            Mr. Michael J. Maglio, Panel Chair
            Ms. Debra Walker, Member
            Mr. Elwood C. Lewis III, Member

The following documentary evidence for AFBCMR  Docket  Number  BC-2005-03886
was considered:

      Exhibit A.  DD Form 149, dated 2 Jan 06, w/atchs.
      Exhibit B.  Applicant's Master Personnel Records.
      Exhibit C.  Letter, AFLSA/JAJM, dated 17 Feb 06.
      Exhibit D.  Letter, SAF/MRBR, dated 24 Feb 06.
      Exhibit E.  Letter, AFBCMR, dated 14 Mar 06.
      Exhibit F.  FBI Report 906182FA1, dated 9 Mar 06.




                             MICHAEL J. MAGLIO
                                             Panel Chair