RECORD OF PROCEEDINGS
             AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS

IN THE MATTER OF:      DOCKET NUMBER:  BC-2006-00992
            INDEX CODE: 110.02
            COUNSEL:  NONE
            HEARING DESIRED:  NO


MANDATORY COMPLETTION DATE AUGUST 5, 2007

___________________________________________________________________

APPLICANT REQUESTS THAT:

His  general  (under  honorable  conditions)  discharge  be  upgraded  to
honorable; his special court-martial conviction be overturned and removed
from his  personal  records;  his  narrative  reason  for  discharged  be
changed; and his DD Form 214 be corrected to show award of the Small Arms
Expert Marksmanship Ribbon and Student Leadership Course.

Note: Applicant’s record has been corrected to show award  of  the  Small
Arms Expert Marksmanship Ribbon  w/1  Bronze  Service  Star  and  Student
Leadership Course, 8 hours, Feb 1997.

__________________________________________________________________

APPLICANT CONTENDS THAT:

The Air Force did not have legal jurisdiction to  try  him  in  a  court-
martial for the offense of possession of marijuana at the time because it
was not considered a “service connected” offense. He was  tried  in  1980
and it wasn’t until 1987 that the Supreme Court removed  the  requirement
that all court-martials be restricted to service-connected  offenses.  He
believes he was a victim of an overzealous prosecution that led him to  a
miscarriage of justice and  because  of  that  he  was  given  a  general
discharge. Had he not been convicted of a crime he had not committed,  he
would have been given an honorable discharge.

In support of the application, the applicant submits a 23  page  personal
statement, a copy of the record of trial by special  court-martial  dated
11 July 1980, a copy of his  DD  Form  214,  documents  relative  to  his
discharge and character reference letters, etc.

The applicant's complete submission, with attachments, is at Exhibit A.
___________________________________________________________________


STATEMENT OF FACTS:

The applicant enlisted in the Regular Air Force as an airman basic on  16
December 1976 and was separated from the Air Force  on  4 September  1980
under  the  provisions  of  AFM  39-12,  Separation  for   Unsuitability,
Misconduct, Resignation, or Request for Discharge for  the  Good  of  the
Service and Procedures for the  Rehabilitation  Program  (misconduct-drug
abuse-evaluation officer), with a general  (under  honorable  conditions)
discharge.  He was credited with 3 years, 8 months, and 19 days of active
service.

On 29 January 1993, the applicant submitted an  application  to  the  Air
Force Discharge Review Board (AFDRB) requesting his discharge be upgraded
to honorable. The Board  concluded  the  discharge  was  consistent  with
procedural and substantive requirements of the discharge  regulation  and
there exists no legal or equitable basis for upgrade of  the  applicant’s
discharge.

Applicant’s  commander  notified  him  on  25  July  1980  that  he   was
recommending discharge from the Air  force  for  being  found  guilty  of
possession of marijuana by a Special Court-Martial and that he receive  a
general (under honorable conditions) discharge with the  following  being
considered in his decision:

On or about 1 June 1980, he was involved in  an  incident  at  the  men’s
dormitory in which he struck another airman in the head.

On 24 April 1980, he was counseled  concerning  a  dishonored  check  for
$25.00.

On 29 February 1980, his suspended punishment for a previous  Article  15
was vacated for failure to obey a lawful order.

On 13 February 1980, he was counseled and his on-base driving  privileges
were revoked for two years for driving while his driving privileges  were
revoked.

On 11 January 1980, he received an Article 15 for dereliction of duty  by
having a television set in his possession while posted as a sentinel.

On 21 December 1979, his driving privileges were revoked  for  12  months
for accumulating fourteen traffic points.

On or about 8 November 1979, he was involved in  an  incident  concerning
his vehicle and reckless driving.

On 31 January 1978, he received an Article 15 for sleeping on post.

Applicant acknowledged receipt of the notification  of  discharge  on  25
July 1980 and submitted statements on his own behalf.

The base legal office reviewed the case and found it legally  sufficient,
and the discharge authority approved  the  separation  and  directed  the
applicant be discharged  with  a  general  (under  honorable  conditions)
discharge.

___________________________________________________________________

AIR FORCE EVALUATION:

AFPC/DPPRS recommends denial. DPPRS states the discharge  was  consistent
with procedural and substantive requirements of the discharge  regulation
and was within the discretion of the discharge  authority  and  that  the
applicant was provided full administrative due process. The applicant did
not submit any evidence or identify any errors or injustices tat occurred
during the discharge processing.   He  provided  no  facts  warranting  a
change to his character of service.

The AFPC/DPPRS’s complete evaluation is at Exhibit C.

AFPC/JA recommends denial. JA states the applicant  is  mistaken  in  his
interpretation of the law regarding jurisdiction over the offense and  in
his conclusion that possession of marijuana on Barksdale Air Force  Base,
LA  was  not  “service-connected.”  Whether  an  offense  was   “service-
connected” was  a  determination  made  after  consideration  of  several
factors. In applying the facts of the case  against  those  factors,  the
jurisdictional basis cited on the charge sheet was sufficient to fine the
offense was service-connected.

The applicant’s other contentions regarding  improprieties  committed  by
his commander and military judge are uncorroborated and  lack  merit.  In
the absence of evidence to the contrary, presumption favors the  validity
of official military acts and it  is  presumed  that  military  personnel
perform their  functions  properly,  considering  all  pertinent  records
relating  to  subject  military  person.  The  court-martial   transcript
indicates the evidence  against  the  applicant  included  contraband,  a
stipulation of fact regarding chain of custody for  the  contraband,  and
testimony the applicant dropped the contraband prior  to  an  inspection.
Sufficient evidence  existed  to  find  the  applicant  guilty  beyond  a
reasonable doubt.

In requesting an upgrade to his discharge, the  applicant  discounts  the
impact of his repeated and serious misconduct during his  enlistment.  He
wrote, “Had I not been convicted of a crime I did not commit I would have
been given the Honorable Discharge that I feel I earned.”  Excluding  the
court-martial and reviewing his record in the light most favorable to the
applicant,  in  JA’s  view  given  the  clearly  established  pattern  of
misbehavior, the applicant was fortunate to have separated with a general
discharge.

AFPC/JA’s complete evaluation is at Exhibit D.

___________________________________________________________________

APPLICANT'S REVIEW OF AIR FORCE EVALUATION:

The applicant provides a seven-page  statement  commenting  on  AFPC/JA  and
AFPC/DPPRS advisories. He closes with admitting he has  changed  some  since
he was young, but he has always been the person that he is today.  He  would
ask the Board to consider his  post  service  conduct  and  achievements  as
testament to his character then and now. He can only hope and pray that  the
Board rule in his favor and  remove  the  only  black  mark  that  has  ever
smudged his record.

The applicant’s seven page statement, with attachments, is at Exhibit F.
__________________________________________________________________

APPLICANT'S REVIEW OF FBI Report:

Applicant stated that the DUI arrest in 1981 was dismissed.

Applicant’s response to the FBI Report, with attachments, is at Exhibit H.

__________________________________________________________________

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 injustice warranting an upgrade in the  applicant’s
discharge.   After  a  thorough  review  of  the  evidence  of  record   and
applicant's submission, we are not persuaded the actions taken  against  him
were improper, contrary to the provisions of the  governing  regulations  in
effect at the time, or based on  factors  other  than  his  own  misconduct.
Therefore, 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.  In the absence of persuasive evidence to the contrary,  we  find
no compelling  basis  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 a 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  Docket  Number  BC-BC-2006-
00992 in Executive Session on 29 November 2006, under the provisions of  AFI
36-2603:

                 Mr. Michael K. Gallogly, Chair
                 Ms. Janet I. Hassan, Member
                 Mr. Richard K. Hartley, Member

The following documentary evidence was considered:

      Exhibit A.  DD Form 149, dated 3 Apr 06, w/atchs.
    Exhibit B.  Applicant's Master Personnel Records.
    Exhibit C.  Letter, AFPC/DPPRS, dated 14 Aug 06.
    Exhibit D.  Letter, AFPC/JA, dated 21 Sep 06
    Exhibit E.  Letter, SAF/MRBR, dated 22 Sep 06.
    Exhibit F.  Letter, Applicant, 3 Oct 06, w/atchs.
    Exhibit G.  FBI Report #33577X5
    Exhibit H.  Applicant’s Letter, dated 4 Nov 06.





                                             MICHAEL K. GALLOGLY
                                             Panel Chair



























AFBCMR
1535 Command Drive
EE Wing, 3rd Floor
Andrews AFB MD  20762-7002


      Reference your application submitted under the provisions of  AFI  36-
2603 (Section 1552, 10 USC), AFBCMR BC-2006-00992

      After  careful  consideration  of  your  application  and  military
records, the Board determined that the evidence  you  presented  did  not
demonstrate the existence of material error or  injustice.   Accordingly,
the Board denied your application.

      You have the right to submit newly discovered relevant evidence for
consideration by the Board.  In the absence of such additional  evidence,
a further review of your application is not possible.

      BY DIRECTION OF THE PANEL CHAIR





RALPH J. PRETE

Chief Examiner

Air Force Board for Correction

of Military Records




Attachment:
Record of Board Proceedings