RECORD OF PROCEEDINGS
             AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS

      IN THE MATTER OF:            DOCKET NUMBER:  BC-2006-03540
            INDEX CODE: 110.00
      XXXXXXX                     COUNSEL:  NONE

                                   HEARING DESIRED:  NO

MANDATORY CASE COMPLETION DATE: 20 MAY 2008

______________________________________________________________

APPLICANT REQUESTS THAT:

His dishonorable discharge be upgraded.

________________________________________________________________

APPLICANT CONTENDS THAT:

Although his sentence was not unreasonable for his actions, he believes the
punishment he received was too harsh  compared  to  the  others  that  were
equally involved.   He states another airman  mentioned  during  the  trial
that the Office of Special Investigations (OSI)  coerced  him  into  adding
information to his statement.  He is now 27 years old, married with a four-
year old son, and expecting another child.  His goal in life is  to  be  an
outstanding husband and  father.   He  has  completed  his  punishment  and
believes his confinement was well deserved.  However, he  believes  despite
working two jobs the dishonorable discharge will continue  to  inhibit  him
from making a better life for his family because it prevents him  obtaining
certain jobs.


In support of his request, he submits two copies of AF Form 1359, Report of
Result of Trial.

His complete submission, with attachments, is at Exhibit A.

________________________________________________________________

STATEMENT OF FACTS:

Applicant enlisted in the Regular Air  Force  on  17  September  1997.  The
applicant was tried by general court-martial and convicted pursuant to  his
pleas to one  specification  of  wrongful  distribution  of  lysergic  acid
diethylamide (LSD) one specification of wrongful distribution of  marijuana
on divers occasions, one specification of wrongful use  of  LSD  on  divers
occasions, one  specification  of  wrongful  use  of  marijuana  on  divers
occasions, one specifications of wrongful possession of marijuana on divers
occasions, and one specification  of  wrongfully  and  knowingly  receiving
stolen property of the United States (night vision goggles)  valued  around
$3,578.00, in violation of Articles 112a and 134 of  the  Uniform  Code  of
Military Justice (UCMJ). He  was  found  guilty  and  was  sentenced  to  a
dishonorable discharge, confinement for 42 months, total forfeiture of  pay
and allowances and reduced the grade of airman basic (E-1).  The  convening
authority reduced the confinement time to a  sentence  of  36  months,  and
approved the findings and sentence in whole on 28 February  2001,  and  the
Court of Appeals for the Armed Forces approved the findings and sentence on
10 July 2001.  On 27 November 2001, he was dishonorably discharged  in  the
grade of airman  basic.   He  was  assigned  RE  code  “2M”  which  denotes
“conviction by court-martial (other than desertion)”.

He served 2 years and 3 months on active duty.

________________________________________________________________

AIR FORCE EVALUATION:

The AFLOA/JAJM recommends denial.  JAJM states the applicant  provides  two
separate  AF  Form  1359’s.   Presumably  these  are  the  two  individuals
referenced by the applicant as having  been  equally  involved  and  having
received more lenient sentences.  One of the airmen pled guilty to and  was
convicted on divers use of marijuana, and divers use of LSD as a result, he
was sentenced to confinement for five months and  received  a  bad  conduct
discharge.  The other airmen pled guilty to and was convicted of a one-time
use of LSD.  He  was  sentenced  to  a  reduction  to  the  grade  of  E-1,
forfeiture of $150.00 pay for 12 months, hard labor without confinement for
3 months, and a restriction to the  base  for  two  months.   In  addition,
applications must be filed within three years after the  alleged  error  or
injustice  was  discovered,  or,  with  due  diligence,  should  have  been
discovered,  His  discharge  was  executed  19 November  2001  and  he  was
separated from the Air Force 27 November 2001.  His application is dated 15
April 2006, therefore the application is untimely.  The applicant  provides
no explanation whatsoever of why  the  application  is  untimely  and  more
importantly, why the Board should excuse the untimeliness in  the  interest
of justice.  Accordingly, we recommend the Board consider  the  application
untimely and deny it as such.  The application should  also  be  denied  as
meritless.  The applicant is not contending that any specific actions  have
been taken by the reviewing authorities  that  require  correction  of  his
record.  Thus, any decision regarding his discharge status must be done  as
a matter of clemency.  The applicant; however,  sets  forth  no  basis  for
clemency.  His entire argument is that his co-actors were  equally  guilty,
but he received a much more severe  sentence  than  they  did.     Even  if
sentence comparison was an appropriate and justified reason  for  clemency,
the applicant’s argument is completely devoid of merit.    Neither  of  the
other two airmen were convicted of distributing both LSD and marijuana, and
neither was convicted of stealing government property.  Nothing he presents
suggests that his discharge was mischaracterized or that the  circumstances
warrant clemency.  His punishment was well within the legal limits and  was
appropriate punishment for the offenses he committed.  He himself  says  as
much.  His experience is no different from any other person convicted of  a
similar offense pursing similar employment.

The complete JAJM evaluation is at Exhibit C.

________________________________________________________________

APPLICANT'S REVIEW OF AIR FORCE EVALUATION:

A copy of the Air Force evaluation was forwarded to  the  applicant  on  26
January 2007 for review and comment within 30 days.  As of this date,  this
office has received no response (Exhibit D).

________________________________________________________________

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  careful  consideration  of  the
available evidence, we found no indication that the actions taken to affect
his discharge and characterization of his service 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, based on  the
available evidence of record, we find no compelling  basis  upon  which  to
favorably consider 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  BC-2006-03540  in  Executive
Session on 28 February 2007, under the provisions of AFI 36-2603:

                 Ms. Jay H. Jordan, Panel Chair
                 Mr. James A. Wolffe, Member
                 Ms. Barbara R. Murray, Member

The following documentary evidence was considered:

    Exhibit A.  DD Form 149, dated 15 April 2006, w/atchs.
    Exhibit B.  Applicant's Master Personnel Records.
    Exhibit C.  AFLSA/JAJM Letter, dated 12 January 2007.
    Exhibit D.  Letter, SAF/MRBR, dated 26 January 2007.




            JAY H. JORDAN
            Panel Chair

                         DEPARTMENT OF THE AIR FORCE
                                WASHINGTON DC



[pic]

Office Of The Assistant Secretary

AFBCMR
1535 Command Dr, EE Wing, 3rd Flr
Andrews AFB MD 20762-7002

XXXXXXX
XXXXXXX
XXXXXXX

XXXXXXX

      Reference your application, AFBCMR BC-2006-03540 submitted under the
provisions of AFI 36-2603 (Section 1552, 10 USC).

      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





                                                       GREGORY E.
JOHNSON
                                                             Chief
Examiner
                                                 Air Force Board
for Correction
                                                       of Military
Records

Attachment:
Record of Board Proceedings