RECORD OF PROCEEDINGS

         AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS


IN THE MATTER OF:      DOCKET NUMBER:  BC-2009-00415
            INDEX CODE:  110.02
            COUNSEL:  NONE

            HEARING DESIRED:  NO

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APPLICANT REQUESTS THAT:

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

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APPLICANT CONTENDS THAT:

He was not provided rehabilitation treatment for his drug  abuse  and  could
have turned his life  around  if  given  help  by  the  Air  Force  for  his
addiction.   He  takes  full  responsibility  for  his  actions.    He   has
contracted Hepatitis C from drug use, medical treatment for  that  condition
is very expensive, and he cannot receive treatment from  the  Department  of
Veterans Affairs with a BCD.

In support of the appeal, the applicant provides  a  personal  statement,  a
letter confirming his participation in a six-month  treatment  program,  and
two certificates.

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

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STATEMENT OF FACTS:

The applicant enlisted in the Regular Air Force as an  airman  basic  on  26
Apr 79, for a term of four years.  On 19 May 82, he  was  tried  by  special
court-martial  with  one  specification  for  possession  of  a   controlled
substance, in violation of Article 134, Uniform  Code  of  Military  Justice
(UCMJ).

The applicant pled and was found guilty to the charge and  specification  by
a military judge.  He was sentenced to a BCD, confinement  (at  hard  labor)
for four months, forfeiture of $250.00 pay per month for  four  months,  and
reduction to the grade of airman basic (E-1).  On 6 Dec  82,  the  convening
authority approved the sentence as adjudged.

On 18 Feb 83, the Air Force Court of Military Review affirmed  the  findings
and approved the sentence as adjudged, although it reassessed  the  sentence
and found appropriate only so much of the sentence that extended to  a  BCD,
confinement for two months, forfeiture of $125.00 pay  per  month  for  four
months and reduction to the grade of E-1.

The applicant did not petition the United States Court of  Military  Appeals
for review of the conviction.  This made the findings and  sentence  in  the
applicant’s case final and conclusive under the UCMJ.   On  1  Feb  84,  his
discharge was executed.  He served 3 years, 1 month, and 27 days  of  active
service.

Pursuant to the  Board's  request,  the  Federal  Bureau  of  Investigation,
Clarksburg, WV, provided a copy of an  Investigation  Report,  which  is  at
Exhibit C.

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AIR FORCE EVALUATION:

AFLOA/JAJM recommends denial.  JAJM states, in  part,  that  while  clemency
may be granted under Title 10 U.S.C. 1552(f)  (2),  the  applicant  has  not
provided information demonstrating that such action by the  Board  would  be
appropriate.  While the medical diagnosis in his case  presents  a  somewhat
sympathetic situation for the Board’s consideration, the applicant  has  not
shown  himself  entirely  worthy  of  clemency.   He  admits  to  committing
criminal  offenses  over  the  years  and  notes  that  he  is  making  this
application while he is in a county jail.  The applicant has not shown  that
he has taken personal responsibility for his drug addiction,  but  seeks  to
blame the Air Force for failing to  provide  him  with  drug  rehabilitation
treatment almost 30 years ago.

Clemency in this case would be unfair to  those  individuals  who  honorably
served their country while in uniform.  Congress’ intent in setting  up  the
Veterans’ Benefit Program was  to  express  thanks  for  veterans’  personal
sacrifices, separations from their family, facing hostile enemy  action  and
suffering financial hardships.  All rights  of  a  veteran  under  the  laws
administered by the Secretary of  Veterans  Affairs  are  barred  where  the
veteran was discharged or dismissed by reason of the sentence of  a  general
court-martial.  This makes sense if the benefit program is to have any  real
value.  It would be offensive to all those who served  honorably  to  extend
the same benefits to someone who committed a crime such as  the  applicant’s
while on active duty.

The complete AFLOA/JAJM evaluation is at Exhibit D.

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APPLICANT'S REVIEW OF AIR FORCE EVALUATION:

A copy of the Air Force evaluation was forwarded to the applicant on 17  Apr
09, for review and comment within 30 days.  As of  this  date,  no  response
has been received by this office (Exhibit E).

A copy of the FBI Report was provided to the  applicant  on  17 Aug 09,  for
review and response within 30 days (Exhibit F).

In his response to the FBI report he indicated he would like  his  discharge
to be upgraded based on the charges related  to  his  military  career.   He
would like to be able to secure a Department of Veterans Affairs  home  loan
in the future.  He would have stayed in  the  Air  Force  if  he  was  given
rehabilitation  treatment  for  his  drug  abuse  problem.   His  life   has
snowballed in a downward spiral since his discharge.

The applicant’s complete response is at Exhibit G.

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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 the applicant has not been the victim of an error  or  injustice.
We find no evidence which indicates  the  applicant’s  BCD,  which  had  its
basis in his conviction by special court-martial  and  was  a  part  of  the
sentence of the military  court,  was  improper  or  that  it  exceeded  the
limitations set forth in the UCMJ.  While  we  are  precluded  by  law  from
reversing a court-martial conviction,  we  are  authorized  to  correct  the
records to reflect actions taken by reviewing officials and to  take  action
on the sentence of a military court based on clemency.  However, because  of
the extensive Federal Bureau of Investigation  Report,  we  do  not  believe
clemency is warranted 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.

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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-2009-00415
in Executive Session on 10 Nov 09, under the provisions of AFI 36-2603:

      Mr-----------, Vice Chair
      Mr. ----------------, Member
      Ms. -----------------, Member

The following documentary evidence was considered:

      Exhibit A. DD Form 149, undated, w/atchs.
      Exhibit B. Applicant's Master Personnel Records.
      Exhibit C. FBI Report.
      Exhibit D. Letter, AFLOA/JAJM, dated 26 Mar 09.
      Exhibit E. Letter, SAF/MRBR, dated 17 Apr 09.
      Exhibit F. Letter, AFBCMR, dated 19 Aug 09.
      Exhibit G. Letter, Applicant, dated 14 Sep 09.




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                 Vice Chair