RECORD OF PROCEEDINGS
AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS


IN THE MATTER OF:	DOCKET NUMBER:  BC-2007-04124
		INDEX CODE:  110.00
		COUNSEL:  
		HEARING DESIRED:  NO

________________________________________________________________
_

APPLICANT REQUESTS THAT:

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

________________________________________________________________
_

APPLICANT CONTENDS THAT:

He has a recently diagnosed psycho-neurological disability.  In 
the interest of justice, he asks the Board to consider the fact 
that this disability was unknown at the time of his entry in the 
Air Force and was present during the time of his erred judgment.

In support of his request, the applicant provides a personal 
statement, a copy of AF Form 100, Request and Authorization for 
Separation, a copy of the proceedings for his General Court- 
Martial, medical documentation, an exploratory career 
assessment, and a letter from the Maryland Statement Department 
of Education - Division of Rehabilitation Services.

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

________________________________________________________________
_

STATEMENT OF FACTS:

The applicant enlisted in the Regular Air Force on 22 September 
1999.

The applicant was tried by a General Court-Martial and pled 
guilty to the wrongful use of numerous controlled substances, 
including ecstasy, mushrooms, ketamine and lysergic acid 
diethylamide (LSD) between on or about 1 September 2000 and 
4 December 2000, in violation of Article 112a, Uniform Code of 
Military Justice (UCMJ).  He was found guilty and the sentence 
was adjudged on 23 May 2001.  He was sentenced to a BCD, 
confinement for 15 months, forfeiture of all pay and allowances, 
and a reduction to the grade of airman basic.

On 27 March 2002, the applicant was discharged with a BCD.  He 
served 1 year, 8 months and 1 day on active duty, with days of 
lost time from 23 May 2001 through 27 March 2002.

________________________________________________________________
_

AIR FORCE EVALUATION:

AFLOA/JAJM recommends denial.  JAJM states the applicant has 
identified no error or injustice related to his prosecution or 
the sentence.  The applicant’s personal history and the fact 
that he has been diagnosed with a cognitive disorder do not 
constitute an error or injustice in the court-martial or 
appellate process.  The applicant admitted to using and 
possessing controlled substances.

While clemency may be granted, the applicant has not presented 
any information demonstrating that such action by the Board 
would be appropriate.  While the neuropsychological diagnosis in 
the applicant’s case presents a somewhat sympathetic situation 
for the Board’s consideration, the applicant has not shown 
himself entirely worthy of clemency.  

It is difficult to lay the blame for the applicant’s joblessness 
entirely at the feet of his diagnosis or the difficulty posed by 
a BCD when the applicant has not entirely abandoned the 
practices that were the cause of that BCD in the first place.  
Additionally, aside from documentation of his diagnosis, the 
applicant has not provided any support for the proposition that 
he has turned his life around or that he has made a difference 
in his community – things which might also warrant some 
consideration for clemency.

Clemency in this case would be unfair to those individuals who 
honorably served their country while in uniform.  It would be 
offensive to all those who served honorably to extend the same 
benefits to someone who committed a crime such as the 
applicant’s while on active duty.

The JAJM complete evaluation is at Exhibit C.

________________________________________________________________
_

APPLICANT'S REVIEW OF AIR FORCE EVALUATION:

On 27 February 2009, a copy of the Air Force evaluation was 
forwarded to the applicant for review and comment within 30 days 
(Exhibit D).  In a letter dated 6 March 2009, the applicant 
requested his case be administratively closed (Exhibit E).  In 
accordance with his request, his case was administratively 
closed on 24 March 2009 (Exhibit F).

In a letter dated 10 June 2010, the applicant requested his case 
be reopened.

He states that he was discharged because of a pre-existing 
condition.  The screening process failed and allowed him into 
the armed forces although not actually qualified.  His 
misconduct in the Air Force is a direct result of his mental and 
psychological condition.  He was never addicted to any single 
substance; rather his use of multiple substances suggests an 
experimental search for relief from the symptoms he suffered.  
Also, because his chronic condition was discovered after his 
discharge, neither the military judge nor the convening 
authority considered this crucial extenuating evidence.  Had 
this condition been known at that time, the convening authority 
may have decided to dispose of the charges at a lower forum.  He 
now suffers the stigma of a bad conduct discharge.  

He is currently enrolled in classes to further his education.  
While he will forever carry the burden of the felony conviction, 
an honorable discharge will go far toward correcting the unjust 
and overly harsh result of his case.

The applicant’s complete submission, with attachments, is at 
Exhibit G.

________________________________________________________________
_

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.  After 
thoroughly reviewing the evidence of record, we find no evidence 
to show that the applicant’s discharge as a result of his 
conviction by court-martial was erroneous or unjust.  In view of 
the foregoing, we agree with the opinion and recommendation of 
the Military Justice Division and adopt the rationale expressed 
as the basis for our decision that the applicant has failed to 
sustain his burden of proof of the existence of either an error 
or an injustice.  Therefore, based on the evidence of record, we 
find no basis to recommend granting the relief sought in this 
application.

________________________________________________________________
_



THE BOARD DETERMINES THAT:

The applicant be notified the evidence presented did not 
demonstrate the existence of an error or injustice; the 
application was denied without a personal appearance; and 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-2007-04124 in Executive Session on 19 January 2011, 
under the provisions of AFI 36-2603:




The following documentary evidence pertaining to AFBCMR Docket 
Number BC-2007-04124 was considered:

   Exhibit A.  DD Form 149, dated 8 December 2008, w/atchs.
   Exhibit B.  Applicant’s Master Personnel Records.
   Exhibit C.  Letter, AFLOA/JAJM, dated 10 February 2009.
   Exhibit D.  Letter, SAF/MRBR, dated 27 February 2009.
   Exhibit E.  Letter, Applicant, dated 6 March 2009.
   Exhibit F.  Letter, SAF/MRBC, dated 24 March 2009.
   Exhibit G.  Letter, Counsel, dated 10 June 2010, w/atchs.





			Panel Chair