RECORD OF PROCEEDINGS
             AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS

IN THE MATTER OF:                       DOCKET NUMBER:  BC-2006-01467
                                       INDEX CODE:  110.02
      XXXXXXXXXXXXXXX                   COUNSEL: NONE

                                             HEARING DESIRED:  YES


MANDATORY CASE COMPLETION DATE:  14 November 2007


_________________________________________________________________

APPLICANT REQUESTS THAT:

His  characterization  of  discharge  be  upgraded  from   dishonorable   to
honorable and he receive pay, in the grade of E-4, that  he  was  improperly
denied while serving in confinement from March 1983 to March 1987.

_________________________________________________________________

APPLICANT CONTENDS THAT:

His court-martial was biased and prejudiced in favor of the government.   He
was unjustly accused and tried.  There  was  no  direct  evidence  from  any
government witness and the government failed to prove all  the  elements  of
the offenses.  His right to challenge court  members  was  violated  because
the panel members were officers assigned to his base and the Wing  Commander
was a witness against him.

In support  of  his  application,  he  provides  a  personal  statement  and
excerpts from his court-martial records.

A copy of the applicant’s  complete  submission,  with  attachments,  is  at
Exhibit A.

_________________________________________________________________

STATEMENT OF FACTS:

On 11 July 1968, the applicant enlisted in the Regular Air Force at the  age
of 20 in the grade of airman basic (E-1) for a period  of  four  years.   He
was  progressively  promoted  to  the  rank  of  technical  sergeant   (E-6)
effective and with a date of rank of 1 November 1981.

General Court-Martial Order number 36, dated, 8 October 1983, indicates  the
applicant was arraigned and tried for one charge of dereliction of  duty  in
violation of Article 92, Uniformed Code  of  Military  Justice  (UCMJ);  one
charge with three specifications  of  wrongful  use  of  marijuana  and  two
specifications of  wrongfully  and  unlawfully  endeavoring  to  impede  the
administration of nonjudicial  punishment,  in  violation  of  Article  134,
UCMJ; and one charge of conspiracy in violation of Article  81,  UCMJ.   The
applicant pled not guilty to all  charges,  but  was  found  guilty  of  the
charges and specifications.  On 24 June 1983, the  applicant  was  sentenced
to a dishonorable discharge, confinement  of  seven  years  at  hard  labor,
forfeiture of $450 per month for three months,  and  reduction  in  rank  to
sergeant (E-4).  The bad conduct discharge and  confinement  for  15  months
were approved.

Because  the  applicant’s  approved   sentence   included   a   dishonorable
discharge, the United States Air Force Court  of  Military  Review  reviewed
the  applicant’s  conviction.   Additionally,  the  applicant  asserted  the
military judge gave an erroneous instruction on  accomplice  testimony.   On
24  June  1984,  the  court  affirmed  the  conviction  and  sentence.   The
applicant  petitioned  the  United  States  Court  of  Appeals  as  to   the
dereliction of duty charges.  The case was returned for reassessment of  the
sentence based on the remaining  findings  of  guilty.   The  United  States
Court  of  Military  Review  found  the  maximum  imposable  punishment  for
dereliction of duty was confinement at  hard  labor  for  three  months  and
forfeiture of two-thirds pay per month not  to  exceed  three  months.   The
maximum punishment for the remaining offenses of  which  the  applicant  was
found guilty was dishonorable discharge, confinement at hard  labor  for  21
years, and forfeiture of  all  pay  and  allowance.   On  8  May  1986,  the
original sentence was affirmed.

On 29 August 1986, the United States Court of Military Appeals  ordered  the
findings of guilty as to Charge I and its specification  be  set  aside  and
dismissed.  In all other respects the decision of the  United  States  Court
of Military Review dated, 8 May, 1986, was affirmed.  On  8  December  1986,
The Supreme Court of the United States denied certiorari.  On 3 March  1987,
the General Court-Martial Order  was  affirmed.   Since  the  applicant  had
departed on parole, no place of confinement was designated.

On 5 June 1987, the  applicant’s  discharge  was  executed.   He  served  14
years, 11 months, and 13 days of active duty.

_________________________________________________________________

AIR FORCE EVALUATION:

AFLOA/JAJM recommends denial of  the  applicant’s  request  to  upgrade  his
discharge.  JAJM states that under  10  United  States  Code  (USC)  Section
1552(f), which amended the basic  corrections  board  legislation,  the  Air
Force Board  for  Corrections  of  Military  Record’s  (AFBCMR)  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  UCMJ.   Additionally,  Section
1552(f)(2) permits the correction  of  records  related  to  action  on  the
sentence of a court-martial for the purpose of clemency.  Apart  from  these
two limited exceptions, the effect of Section 1552(f) is that the AFBCMR  is
without authority to reverse, set-aside,  or  otherwise  expunge  a  courts-
martial conviction that occurred on or after 5 May 1950 (the effective  date
of the UCMJ).

JAJM states the evidence indicates there  is  no  basis  for  upgrading  the
discharge  characterization.   The  appropriateness   of   the   applicant’s
sentence, which was well within the prescribed limits, is  a  matter  within
the discretion of the court-martial and may be mitigated  by  the  convening
authority or within  the  course  of  the  appellate  review  process.   The
applicant had the  assistance  of  counsel  in  presenting  extenuating  and
mitigating matters in their most  favorable  light  to  the  court  and  the
convening authority.   These  matters  were  considered  in  review  of  the
discharge.  The applicant was thus afforded all rights  granted  by  statute
and  regulation.   The  applicant’s  discharge   accurately   reflects   the
character of his service.  The applicant not only allowed subordinates,  who
worked directly under his supervision, to use marijuana in his  presence  in
impunity, he used marijuana with them.   He  compounded  his  misconduct  by
undertaking to subvert the administration  of  military  justice,  including
having one of his subordinates provide false  testimony  at  an  Article  15
punishment hearing.  This was serious misconduct and  a  severe  failure  of
leadership by the applicant.  The  maximum  punishment  authorized  for  the
offenses  for  which  the  applicant  was  convicted  was   a   dishonorable
discharge, confinement at hard labor for 21 years, and total  forfeiture  of
pay and allowances.  He was sentenced to serve  confinement  at  hard  labor
for seven years but served only four before  being  paroled.   The  sentence
was well within the legal limits  and  was  a  fitting  punishment  for  the
offenses  committed.   It  is  JAJM’s  opinion  that  an  upgrade   in   the
applicant’s discharge characterization is inappropriate given the nature  of
his crimes and discharge.

The JAJM evaluation is at Exhibit C.

DFAS-POCC/DE recommends denial of the applicant’s  request  for  restitution
of pay as an E-4 from March 1983  to  March  1987.   DFAS  states  that  DoD
Financial  Management  Regulation,   Volume   7A,   Chapter   1,   Paragraph
010302.G(5) indicates that “If a member is confined serving a  court-martial
sentence when the enlistment expires, pay and allowances  end  on  the  date
the enlistment expires unless the sentence is completely overturned  or  set
aside as specified in section 4809 of this volume.  Pay and allowances  will
not accrue again  until  the  date  the  member  is  restored  to  full-duty
status.”  The applicant received  pay  and  allowances  until  his  date  of
separation of 1 June 1984.  All entitlement to pay  and  allowances  stopped
on that date and his Master Military Pay Account was in a  suspended  status
until his final separation date of 5 June 1987.

The DFAS evaluation is at Exhibit D.

_________________________________________________________________

APPLICANT'S REVIEW OF AIR FORCE EVALUATION:

Copies of the Air Force evaluations were forwarded to the  applicant  on  25
August 2006 for review and comment within 30 days.  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’s  discharge  had
its basis in his  trial  and  conviction  by  a  court-martial  and  he  has
provided  no  evidence  showing  that  the  sentence  exceeded  the  maximum
punishment allowable based on the offense of which  he  was  convicted.   We
feel obligated to note that, in accordance  with  Title  10,  United  States
Code, Section 1552(f); actions by this Board are limited to  corrections  to
the record to reflect actions taken by the reviewing  officials  and  action
on the sentence of the court-martial for the purpose of clemency.  There  is
nothing in the evidence provided which would  lead  us  to  believe  that  a
change to the actions of any of the reviewing officials  is  warranted.   In
view of the extreme seriousness of the misconduct he committed  (i.e.,  drug
use over an extended period of time, and  the  well-publicized  consequences
of drug use by military members), we do not find clemency is appropriate  in
this case.  In reference  to  the  applicant’s  request  for  pay  while  in
confinement  from  March  1983  to  March  1987,  we  note  the  applicant’s
enlistment expired while he was serving time in confinement.  In  accordance
with the governing regulation, if a member  is  confined  serving  a  court-
martial sentence when the enlistment expires, pay and allowances end on  the
date the enlistment expires unless the sentence is completely overturned  or
set aside.  Therefore,  based  on  the  evidence  of  record,  we  find  the
applicant is not entitled to restitution.  Based on the above,  we  find  no
evidence of an error or injustice; therefore,  the  applicant’s  request  is
not favorably considered.

4.  The applicant's case is adequately documented and it has not been  shown
that a personal appearance with or without counsel will  materially  add  to
our understanding of the issues involved.   Therefore,  the  request  for  a
hearing 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 24 October 2006, under the provisions of AFI 36-2603:

                  Mr. Michael V. Barbino, Panel Chair
                  Mr. James L. Sommer, Member
                 Mr. Vance E. Lineberger, Member

The following documentary evidence was considered in connection with  AFBCMR
Docket Number BC-2006-01467:

      Exhibit A.  DD Form 149, dated 11 Feb 06, w/atchs.
      Exhibit B.  Applicant's Master Personnel Records.
      Exhibit C.  Letter, AFLOA/JAJM, not dated.
      Exhibit D.  Letter, DFAS-POCC/DE, not dated.
      Exhibit E.  Letter, SAF/MRBR, dated 25 Aug 06.




                                                   MICHAEL V. BARBINO
                                                   Panel Chair