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AF | BCMR | CY2008 | BC-2007-02981
Original file (BC-2007-02981.doc) Auto-classification: Denied

RECORD OF PROCEEDINGS
             AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS


IN THE MATTER OF:      DOCKET NUMBER:  BC-2007-02981
            INDEX CODE:  110.00

            COUNSEL:  NONE

            HEARING DESIRED:  NO

_________________________________________________________________

APPLICANT REQUESTS THAT:

His under other than honorable conditions (UOTHC) discharge be  upgraded  to
an honorable discharge.

_________________________________________________________________

APPLICANT CONTENDS THAT:

He should not have been convicted.  He  was  informed  by  military  counsel
that his discharge would be upgraded within six months of his discharge.

In  support  of  his  request,  the  applicant  provided  an  Administrative
Decision from the Little Rock,  Arkansas  Veterans  Administration  Regional
Office.

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

_________________________________________________________________

STATEMENT OF FACTS:

Applicant enlisted in the Regular Air Force on 20 August 1971 in  the  grade
of airman basic.  On 25 July 1973, applicant was notified by  his  commander
of his intent to recommend that he be discharged from the  Air  Force  under
the provisions of AFM 39-12, chapter 2, section  b,  paragraph  2-15C.   The
specific reasons for this action were:

     a. On 13 April 1973, he was  convicted  by  special  court-martial  for
violating a lawful general regulation, by  wrongfully  selling  a  dangerous
drug, lysergic acid diethylamide.

     b. On 27 March 1973, he was issued a  Letter  of  Reprimand  (LOR)  for
failing to maintain radio communication with the desk sergeant for a  period
of thirty minutes and when his  patrol  finally  established  radio  contact
with the desk sergeant he gave an incorrect location as his position.

He was advised of his rights in this matter and acknowledged receipt of  the
notification.  After consulting with  counsel  he  waived  his  right  to  a
hearing before an administrative discharge board and elected not  to  submit
statements on his own behalf.  In a legal  review  of  the  case  file,  the
staff judge advocate found  the  case  legally  sufficient  and  recommended
discharge.  On 1 August 1973, the discharge  authority  concurred  with  the
recommendations  and  directed  discharge  with  an  undesirable  discharge.
Applicant was discharged on 16 August 1973.  He served 1 year, 8 months  and
16 days on active duty.

Pursuant to the Board's request, the Federal Bureau of  Investigation  (FBI)
provided a copy of an Investigative Report, which is at Exhibit C.

On 27 November 2007, the applicant was provided the opportunity  to  respond
to the Investigative Report and to provide documentation pertaining  to  his
post-service activities, within 30 days (Exhibit D).  As of  this  date,  no
response has been received by this office.

_________________________________________________________________

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.   We  took  notice  of  the  applicant’s
complete submission in judging the merits of the case; however, we  find  no
evidence  of  an  error  or  injustice  that  occurred  in   the   discharge
processing.  Based on the available  evidence  of  record,  it  appears  the
discharge was consistent with the substantive requirements of the  discharge
regulation  and  within  the  commander’s  discretionary   authority.    The
applicant has provided no evidence  which  would  lead  us  to  believe  the
characterization of the service  was  contrary  to  the  provisions  of  the
governing regulation, unduly harsh,  or  disproportionate  to  the  offenses
committed.   We  considered  upgrading  the  discharge  based  on  clemency;
however, we do not find the evidence presented is sufficient  to  compel  us
to recommend granting the relief sought on that basis.   Therefore,  in  the
absence of evidence to  the  contrary,  we  find  no  basis  upon  which  to
recommend granting the relief sought.

_________________________________________________________________

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-
02981 in Executive Session on 6 February 2008, under the provisions  of  AFI
36-2603:

                 Mr. Thomas S. Markiewicz, Chair
                 Ms. Mary Jane Mitchell, Member
                 Ms. Marcy C. Puckett, Member

The following documentary evidence was considered:

   Exhibit A.  DD Form 149, dated 9 September 2007, w/atch.
   Exhibit B.  Applicant's Master Personnel Records.
   Exhibit C.  FBI Report of Investigation.
   Exhibit D.  Letter, SAF/MRBC, dated 27 November 2007.





                 THOMAS S. MARKIEWICZ
                 Chair

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