RECORD OF PROCEEDINGS
             AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS

IN THE MATTER OF:      DOCKET NUMBER:  BC-2006-01146
            INDEX CODE: 110.02
            COUNSEL:  NONE

            HEARING DESIRED:  NO


MANDATORY CASE COMPLETION DATE:  19 OCT 2007


___________________________________________________________________

APPLICANT REQUESTS THAT:

His Bad Conduct Discharge (BCD) be upgraded to honorable.

___________________________________________________________________

APPLICANT CONTENDS THAT:

He request clemency and consideration of his entire record of service and
not just the time of his admitted misconduct in considering an upgrade to
his discharge.

In  support  of  the  application,  the  applicant  submits  a   personal
statement, letters of character reference, a  copy  of  his  DD Form 214,
Certificate of Release or Discharge from Active Duty, dated 9 May 05, and
other documents related to the issue.

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  30
April 1981 and was progressively promoted to the grade of  senior  master
sergeant. In March 2000, he was reduced to master sergeant and  again  in
August 2000 to technical  sergeant  pursuant  to  nonjudicial  punishment
proceedings under Article 15, UCMJ. The applicant  was  tried  by  court-
martial on 22 December 2000 for assault, a violation of Article 28, UCMJ,
and wrongful use of cocaine on divers occasions, in violation of  Article
112a, UCMJ.  The  assault  charge  was  dismissed  after  arraignment  in
accordance with a pretrial agreement and pursuant to pleas, and was found
guilty of divers’ use of cocaine.  The  sentence  included  reduction  to
airman, confinement for six months, and  a  Bad  Conduct  Discharge.  The
convening authority approved his sentence as adjudged and  on  3 December
02, the Air Force Court of Criminal Appeals  approved  and  affirmed  the
findings of guilty and the sentence.  On 30 May 2003, the  United  States
Court of Appeals for  the  Armed  Forces  set  aside  the  lower  court’s
decision and directed the lower court to obtain  an  affidavit  from  the
trial defense regarding  the  allegation  of  ineffective  assistance  of
counsel, and to review the case anew. On further review,  in  a  decision
dated 1 October 2003, the Air Force Court of Criminal Appeals again found
no error and affirmed. On  8 April  2004,  the  United  States  Court  of
Appeals for the Armed Forces affirmed the decision and  the  final  order
was promulgated on 4 October 2004, and the Bad Conduct Discharge executed
on 9 May 2005. The applicant was credited with 23 years, 7 months, and  9
days of active service.

Pursuant to the Board’s request, the  Federal  Bureau  of  Investigation,
Clarksburg, West Virginia, provided  an  investigative  report  which  is
attached at Exhibit C.

___________________________________________________________________

AIR FORCE EVALUATION:

AFLOA/JAJM recommends denial.   Under  10  USC,  section  1552(f),  which
amended the basic corrections 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 imitated 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.

AFLOA/JAJM further states  the  applicant  has  identified  no  error  or
injustice related to his prosecution or sentence.  While clemency  is  an
option, there is no reason for the Board to  exercise  clemency  in  this
case.  The applicant presents insufficient evidence to warrant  upgrading
his discharge characterization, and does  not  demonstrate  an  equitable
basis for relief.

The AFLOA/JAJM evaluation is at Exhibit D.

___________________________________________________________________

APPLICANT'S REVIEW OF AIR FORCE EVALUATION:

The applicant indicates that he agrees with AFLOA/JAJM statement that  he
did not contest the merits of his trial or subsequent  appellate  review.
He simply asks the Board to consider granting “clemency” in his case.  He
urges the Board to not just look at the facts of the UCMJ action, but  to
consider his entire  life  and  service  before,  during  and  after  the
incidents which led to the action.

The applicant’s complete response is at Exhibit F.

___________________________________________________________________

THE BOARD CONCLUDES THAT:

1.  The applicant has exhausted all remedies provided by existing law  or
regulations.

2.  The application was timely filed.

3.  Insufficient relevant evidence has been presented to demonstrate  the
existence of error or injustice.   We  took  notice  of  the  applicant's
complete submission in judging the merits of the case.  The  evidence  of
record reflects the applicant was convicted by general court-martial  for
one specification of assault and one specification  of  wrongful  use  of
cocaine on divers’ occasions resulting in a bad  conduct  discharge.   No
evidence has been presented which would  lead  us  to  believe  that  the
applicant’s service characterization was improper.  The Board  noted  the
applicant’s prior honorable periods of service and the  numerous  letters
of  character  reference  and  support   submitted   with   his   appeal.
Nonetheless, in view of the seriousness of the offenses committed  during
the period of service under review, we are not persuaded that an  upgrade
of the characterization of his discharge is warranted based on  clemency.
Therefore, in the absence of persuasive  evidence  to  the  contrary,  we
adopt the Air Force Legal Operations Agency’s rationale as the basis  for
our conclusion that the applicant has not been the victim of an error  or
injustice and conclude that no basis exists  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 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-2006-01146
in Executive Session on 15 August 2006, under the provisions of  AFI  36-
2603:

      Mr. Richard A. Peterson, Panel Chair
      Ms. LeLoy W. Cottrell, Member
      Ms. Karen A. Holloman, Member

The following documentary evidence was considered:

    Exhibit A.  DD Form 149, dated 10 Apr 06, w/atchs.
    Exhibit B.  Applicant's Master Personnel Records.
    Exhibit C.  FBI Report of Investigation.
    Exhibit D.  Letter, AFLOA/JAJM, undated.
    Exhibit E.  Letter, SAF/MRBR, dated 26 May 06.
    Exhibit F.  Letter, Applicant, dated 26 Jun 06.




                                   RICHARD A. PETERSON
                                   Panel Chair