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AF | BCMR | CY2009 | BC-2008-02295
Original file (BC-2008-02295.doc) Auto-classification: Denied

                            RECORD OF PROCEEDINGS
             AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS

IN THE MATTER OF:      DOCKET NUMBER: BC-2008-02295
            INDEX CODE:  110.02
      xxxxxxxxxxx      COUNSEL:  None
            HEARING DESIRED:  NO

________________________________________________________________

APPLICANT REQUESTS THAT:

His bad conduct discharge (BCD) be upgraded to a  general  (under  honorable
conditions) discharge.

________________________________________________________________

APPLICANT CONTENDS THAT:

He was young and was given a drug test without proper counsel.

In support of his request, the  applicant  provides  a  character  reference
letter.  The applicant's complete submission is at Exhibit A.

________________________________________________________________

STATEMENT OF FACTS:

On 14 Feb 84, the applicant enlisted in the Regular Air Force in the  grade
of airman basic (E-1) for a period of 4 years.

On 10 Oct 87, the applicant was tried by a general court-martial.   He  was
charged with violation of  Article  112a,  wrongful  use  of  cocaine;  and
Article 134, breaking restriction.  He was found guilty and  was  sentenced
to discharge with a BCD, confinement for 11 months and forfeiture  of  $300
pay per month for 11 months.  The  applicant  was  discharged  with  a  bad
conduct discharge on 8 Aug 88.  He served 3 years, 8 months and 17 days  on
active duty.  His period of lost time was from 13 Oct 87 through 20 Jul  88
due to his confinement.

The remaining relevant facts are contained in the  letter  prepared  by  the
Air Force Legal Operations Agency (AFLOA/JAJM) at Exhibit C.

________________________________________________________________

AIR FORCE EVALUATION:

AFLOA/JAJM recommends denial.   JAJM  states  the  applicant  identified  no
error or injustice related  to  his  prosecution  or  the  sentence.   While
clemency may be granted it is not warranted in this case.   The  applicant's
sentence to a BCD, confinement for 11 months,  and  forfeiture  of  pay  and
allowances  was  well  within  the  legal  limits  and  was  an  appropriate
punishment for the offenses  committed.   The  military  judge  ensured  the
applicant understood the meaning and effect of  his  plea  and  the  maximum
punishment that could be imposed if his guilty  plea  was  accepted  by  the
court.  The trial attorney introduced evidence that the applicant  had  been
punished  three  times  under  Article  15,  UCMJ,  since  April  1987,  for
violating a driving revocation order, failing to go to his  place  of  duty,
and for breaking restriction.  He also had a civilian citation  for  driving
while intoxicated in Sep 85.  JAJM states  that  upgrading  the  applicant's
discharge  to  general  is  not  appropriate.    The   complete   AFLOA/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 19  Sep
08 for review and response within 30 days.  As of  this  date,  this  office
has received no response.

________________________________________________________________

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,  after
thorough review of the evidence of  record,  it  is  our  opinion  that  the
comments of the Air Force Legal  Operations  Agency  are  supported  by  the
evidence of record.  We find no evidence of error in  this  case  and  after
thoroughly reviewing the applicant's submission, we do not  believe  he  has
suffered from an injustice.  We considered upgrading his  discharge  on  the
basis of clemency; however,  due  to  the  serious  nature  of  the  offense
committed, we believe that the characterization of his discharge was  proper
and in compliance with  the  appropriate  directives.   In  the  absence  of
persuasive evidence to  the  contrary,  we  find  no  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 Docket Number BC-2008-02295
in Executive Session on 18 Nov 08 under the provisions of AFI 36-2603:

                 Mr.  Gregory A. Parker Panel Chair
                 Ms.  Karen A. Holloman, Member
                 Mr.  Jeffery R. Shelton, Member

The following documentary evidence  pertaining  to  Docket  Number  BC-2008-
02295 was considered:

      Exhibit A.  DD Form 149, dated 9 Jun 08, w/atch.
      Exhibit B.  Applicant's Master Military Personnel Records.
      Exhibit C.  Letter, AFLOA/JAJM, dated 8 Sep 08.
      Exhibit D.  Letter, SAF/MRBR, dated 19 Sep 08.




                                        GREGORY A. PARKER
                                        Panel Chair


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