RECORD OF PROCEEDINGS
             AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS

IN THE MATTER OF:      DOCKET NUMBER: BC-2007-01473
            INDEX CODE:  110.00

            COUNSEL:  MR. LIONEL O. SMITH
            HEARING DESIRED:  YES

MANDATORY CASE COMPLETION DATE:  8 NOVEMBER 2008

_________________________________________________________________

APPLICANT REQUESTS THAT:

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

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APPLICANT CONTENDS THAT:

He was wrongfully discharged due to a drug test  of  his  hair.   His  urine
sample was clean and he did not use drugs, but was tried  and  convicted  on
evidence that was misplaced, mishandled, and did not follow a  strict  chain
of custody.  He requests upgrade of his discharge  characterization  because
he served for sixteen years and received three good conduct medals.

The applicant's complete submission is at Exhibit A.

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STATEMENT OF FACTS:

The applicant enlisted in the Air Force on 31 Mar 81 and was promoted up  to
the grade of staff sergeant.  In July 1994, he was tried by  general  court-
martial for one charge and two specifications  of  dereliction  of  duty  by
failing to provide a urine sample, and one charge and one  specification  of
wrongful use of cocaine on divers occasions, in  violation  on  Articles  92
and 112a of the Uniformed Code of Military Justice (UCMJ).  Consistent  with
his pleas, he was acquitted of one specification  of  dereliction  of  duty.
Contrary to his pleas he was convicted of the  remaining  offenses.   On  25
Jul 94, he was sentenced to a Bad Conduct Discharge (BCD),  confinement  for
45 days, and reduction in grade to airman basic.   The  convening  authority
approved the sentence  as  adjudged.   After  completion  of  the  appellate
review process, applicant was discharged with a BCD on 18 Mar 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  BCD.   The
applicant has provided no evidence of a specific error or injustice  related
to his prosecution or the sentence.  He simply contends that he did not  use
drugs and the evidence is wrong.  The appropriate forum in  which  to  raise
these types of evidentiary issues is  at  trial  and  during  the  appellate
review process.  The applicant availed himself of all  appellate  rights  to
which he was entitled  under  the  law.   The  appellate  courts  found  his
conviction and sentence correct in fact and law.  His  punishment  was  well
within legal limits and  appropriate  for  the  offenses  committed.   While
clemency may be granted under 10 U.S.C., 1552(f)(2), the applicant  provides
no justification for his request, and clemency  is  not  warranted  in  this
case.  The applicant was convicted of dereliction of duty  for  his  willful
failure to provide a urine sample, which precipitated a test  of  his  hair.
He was also convicted of wrongfully using cocaine on  divers  occasions.   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 (Exhibit F).  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 for dereliction of duty, and wrongful use of cocaine.   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 honorable 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.

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 issue  involved.   Therefore,  the  request  for  a
hearing is not favorably considered.

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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.

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The following members of the  Board  considered  Docket  Number     BC-2007-
01473 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-
01473 was considered:

    Exhibit A.  DD Form 149, dated 4 May 07.
    Exhibit B.  Applicant's Master Personnel Records.
    Exhibit C.  FBI Report of Investigation.
    Exhibit D.  Memorandum, AFLOA/JAJM, dated 26 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