RECORD OF PROCEEDINGS
             AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS

IN THE MATTER OF:      DOCKET NUMBER: BC-2007-01370
            INDEX CODE:  110.00

            COUNSEL:  NONE
            HEARING DESIRED:  NO

MANDATORY CASE COMPLETION DATE:  8 NOVEMBER 2008

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APPLICANT REQUESTS THAT:

His  Bad  Conduct  Discharge  (BCD)  be  upgraded  to  an  under   honorable
conditions (general) discharge.

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APPLICANT CONTENDS THAT:

There was no error or injustice during the processing of his  case,  and  he
accepts full responsibility for his actions that led to his  general  court-
martial.  He was 19 years old and a young immature kid, who made  very  poor
decisions.  He has been a productive member of society, he is now  29  years
old, a father of two children, and  he  coaches  soccer  and  taught  Sunday
school.

His children are paying for the mistake he made.  He is  currently  employed
by the California Department of Transportation and  is  looking  to  advance
his career.  An upgrade in  discharge  characterization  will  help  him  do
that.

The applicant's complete submission is at Exhibit A.

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STATEMENT OF FACTS:

The applicant enlisted in the Air Force on 15 Feb 95 and was promoted up  to
the grade of airman first class.  On 16 May 97,  he  was  tried  by  general
court-martial.  He was charged with and convicted, in  accordance  with  his
pleas, of one charge and one specification of driving  under  the  influence
of alcohol, in violation of Article 111 of the Uniformed  Code  of  Military
Justice (UCMJ); and one charge with four specifications of wrongful  use  of
marijuana, wrongful use of hashish, wrongful distribution of marijuana,  and
wrongful distribution of hashish, all on divers occasions, in  violation  of
Article 112a, UCMJ.  He was  sentenced  on  16  May  97  to  a  Bad  Conduct
Discharge (BCD), confinement for 30 months, and reduction to  the  grade  of
airman basic.  The convening authority approved  the  sentence  as  adjudged
with the exception of the sentence to confinement, which he reduced  to  366
days.  The Air Force Court of Criminal Appeals  affirmed  the  findings  and
sentence as correct in fact and law on 3 Apr 98.  On 16 Jul 98,  the  United
States Court of Appeals for the Armed  Forces  denied  applicant’s  petition
for grant of review.  After completion  of  the  appellate  review  process,
applicant was discharged with a BCD on 11 Sep 98.

Pursuant to the Board’s  request  on  15  Aug  07,  the  Federal  Bureau  of
Investigation,  Clarksburg,  West  Virginia,   provided   a   copy   of   an
investigation report, which is attached at Exhibit C.

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AIR FORCE EVALUATION:

AFLOA/JAJM  reviewed  this   application   and   recommends   denial.    The
application is untimely and there is no basis for upgrading the Bad  Conduct
Discharge.  The applicant has identified no error or  injustice  related  to
his prosecution or the sentence.   In  fact,  he  specifically  states  that
there was no error or injustice in the process.   The  applicant’s  sentence
was well within legal limits and  was  an  appropriate  punishment  for  the
offenses  committed.   While  clemency  may  be  granted  under  10   U.S.C,
1552(f)(2), it is not warranted in this case.  The applicant  was  convicted
of numerous drug offenses which included not just wrongful use but  wrongful
distribution.  A BCD was an appropriate sentence and properly  characterizes
his service.

The AFLOA/JAJM complete evaluation is at Exhibit D.

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APPLICANT'S REVIEW OF AIR FORCE EVALUATION:

On 27 Jul 07, a copy of the  Air  Force  evaluation  was  forwarded  to  the
applicant for review and comment within 30 days.  To date,  a  response  has
not been received.

On 23 Aug 07, a copy of the FBI report was forwarded to  the  applicant  for
review/comment.  To date, a response has not been received.

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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 error or injustice.  The applicant’s submission was  thoroughly
reviewed, and his contentions were duly noted.  However, we do not find  his
assertions, in and of themselves, sufficiently persuasive  to  override  the
rationale provided by the Associate Chief, Military Justice  Division.   The
evidence of record indicates the applicant was convicted by  general  court-
martial of wrongful use of marijuana, wrongful use of hashish,  distribution
of marijuana, and distribution of hashish.  No evidence has  been  submitted
which would lead us to believe that the characterization of his service  was
improper.  In addition, in view of the contents of  the  FBI  Identification
Record we are not persuaded that the  characterization  of  the  applicant’s
discharge warrants an upgrade to general on the basis of  clemency.   Having
found no error or injustice with regard to the actions that  occurred  while
the applicant was a military member, we conclude that  no  basis  exists  to
grant favorable action on his request.

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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-2007-
01370 in Executive Session on 25 September 2007,  under  the  provisions  of
AFI 36-2603:

      Mr. James W, Russell, III, Panel Chair
      Mr. Don H. Kendrick, Member
      Ms. Josephine L. Davis, Member

The following documentary evidence  pertaining  to  Docket  Number  BC-2007-
01370 was considered:

    Exhibit A.  DD Form 149, dated 23 Apr 07, w/atch.
    Exhibit B.  Applicant's Master Personnel Records.
    Exhibit C.  FBI Report of Investigation.
    Exhibit D.  Memorandum, AFLOA/JAJM, dated 24 Jun 07.
    Exhibit E.  Letter, SAF/MRBR, dated 27 Jul 07.
    Exhibit F.  Letter, AFBCMR, dated 23 Aug 07.




                                             JAMES W. RUSSELL, III
                                             Panel Chair