RECORD OF PROCEEDINGS
         AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS


IN THE MATTER OF:      DOCKET NUMBER:  BC-2005-02137
            INDEX CODE:  A68.00

            COUNSEL:  THOMAS J. REED

            HEARING DESIRED:  YES


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APPLICANT REQUESTS THAT:

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

By amendment, his rank of staff sergeant be restored.

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APPLICANT CONTENDS THAT:

His military defense counsel failed to  investigate  or  call  defense
character witnesses to show his good military character.  He was  also
incompetent in that he failed to challenge the specifications  in  the
court-martial charges that were too vague to constitute notice of  the
time and date of the offense, nor did he file a  motion  for  Bill  of
Particulars or investigate his alibi.

In support of his appeal, the applicant provides a counsel’s brief, an
affidavit,  and  documentation  pertaining   to   his   court-martial,
including character reference statements.

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

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STATEMENT OF FACTS:

Applicant initially enlisted in the Regular Air Force on 25 May 73 for
a period of four years in the grade of airman basic (E-1).   Prior  to
the matter under review, he was progressively promoted to the grade of
staff sergeant (E-5).

On  25  Jan  83,  he  was  tried  by  special  court-martial  for  one
specification  of  wrongful  use  of  marijuana  on  divers  occasions
(between 1 Feb 82 and 30 Apr 82), and one specification of  wrongfully
soliciting a junior enlisted member to obtain marijuana  and  transfer
it to him (between 1 Mar 82  and  31 May 82),  both  in  violation  of
Article 134 of the Uniform Code of Military Justice (UCMJ).   He  pled
not guilty to both specifications.  On 26 Jan 83, he was convicted  of
the solicitation but not the use of marijuana.  He was sentenced to  a
BCD and reduction in grade to airman basic (E-l).  The Air Force Court
of Military Review affirmed the findings and  sentence  on  27 Jul  83
and,  after  completion  of  the  appellate  review  process,  he  was
discharged with a BCD on 10 Feb 84.  He was credited with 10 years,  9
months, and 16 days of total active service.

On 6 Jul 05, the applicant filed a petition with the Air  Force  Court
of Criminal Appeals to set aside his·court-martial conviction based on
ineffective assistance of counsel at trial.  The petition  was  denied
on 15 Aug 05.  The United States Court of Appeals for the Armed Forces
affirmed that decision.  He filed for a  writ  of  certiorari  to  the
United States Supreme Court, which was denied on 14 May 07, completing
the appellate review.

On 20 Aug 07, counsel filed an addendum, with additional documents, to
the applicant’s 5 Jun 05 request for relief to the Board (Exhibit C).

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AIR FORCE EVALUATION:

AFLOA/JAJM recommends denial indicating the applicant  has  failed  to
establish that, but for unprofessional errors upon  the  part  of  his
defense counsel, there was a reasonable probability the outcome of his
trial would have been different.  In fact, he has failed to  establish
any deficiency in his defense counsel's representation at  trial.   To
the contrary, under all the circumstances, defense counsel appears  to
have exercised sound  legal  judgment  and  made  reasonable  tactical
decisions that provided meaningful and effective  counsel  to  him  at
trial.  He availed himself of all appellate rights  to  which  he  was
entitled under the law  in  1983.   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.
Moreover, his recent petitions to the courts for relief on the  ground
of ineffective assistance of counsel  have  all  been  denied.   While
clemency may be granted under the governing statute,  he  provides  no
justification for his request, and clemency is not warranted  in  this
case.  A BCD was an appropriate sentence  and  properly  characterizes
his service.  In AFLOA/JAJM’s view, there is no  basis  for  upgrading
the BCD.

A complete copy of the AFLOA/JAJM evaluation is at Exhibit D.

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APPLICANT'S REVIEW OF AIR FORCE EVALUATION:

Counsel  reviewed  the  advisory  opinion  and  furnished  a  detailed
response indicating the advisory  opinion  should  be  treated  as  an
adversarial document.  It structured its version of the facts  of  the
applicant’s case in a way most favorable to the  Air  Force  and  most
unfavorable to the applicant’s original argument.  The errors made  by
his military defense counsel deprived the applicant of a fair trial as
required by the Fifth  and  Sixth  Amendments  of  the  United  States
Constitution.   While  the  Board  is  not  empowered  to  change  the
applicant’s court-martial conviction, it could  change  the  sentence.
Therefore, the Board should remove the punitive discharge and  restore
the applicant’s rank.

Counsel’s complete response, with attachments, is at Exhibit F.

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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.   We  took  notice  of   the
applicant's complete submission in judging the  merits  of  the  case;
however, we agree with the opinion and recommendation of the Air Force
office of primary responsibility (OPR) and adopt its rationale as  the
basis for our conclusion that the applicant has not been the victim of
an error or injustice.   We  find  no  evidence  which  indicates  the
applicant’s BCD and reduction in rank, which had their  bases  in  his
conviction by special court-martial and were parts of the sentence  of
the  military  court,  were  improper  or  that  they   exceeded   the
limitations set forth in the Uniform Code of Military Justice  (UCMJ).
Furthermore, because of the seriousness of his  misconduct;  that  is,
his solicitation of a junior enlisted member to obtain  marijuana  and
transfer it to him, we are not inclined to afford him any relief based
on clemency at this time.  In  view  of  the  foregoing,  and  in  the
absence of sufficient evidence to the contrary, we find no  compelling
basis to recommend granting the relief sought in this application.

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.

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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 AFBCMR Docket Number BC-
2005-02137 in Executive Session on 3 Apr 08, under the  provisions  of
AFI 36-2603:

      Ms. B. J. White-Olson, Panel Chair
      Ms. Janet I. Hassan, Member
      Ms. Yvonne T. Jackson, Member

The following documentary evidence was considered:

    Exhibit A.  DD Form 149, dated 5 Jun 05, w/atchs.
    Exhibit B.  Applicant's Master Personnel Records.
    Exhibit C.  Letter, counsel, dated 20 Aug 07, w/atchs.
    Exhibit D.  Letter, AFLOA/JAJM, dated 14 Sep 07.
    Exhibit E.  Letter, SAF/MRBR, dated 5 Oct 07.
    Exhibit F.  Letter, counsel, dated 29 Oct 07, w/atchs.




                                   B. J. WHITE-OLSON
                                   Panel Chair