RECORD OF PROCEEDINGS
             AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS

IN THE MATTER OF:      DOCKET NUMBER:  BC-2009-01878
            INDEX CODE:  110.00
            COUNSEL:  NONE
            HEARING DESIRED:  NO

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APPLICANT REQUESTS THAT:

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

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APPLICANT CONTENDS THAT:

There were no errors.

In support of the application, the applicant submits copies of his  DD  Form
214, Certificate of Release or  Discharge  from  Active  Duty,  his  General
Court-Martial Orders, and his DD Form 293, Application  for  the  Review  of
Discharge from the Armed Forces of the United States.

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  on  11  Jul  00.   He  was
progressively promoted to the grade of airman first class.   In  Jun  02,  a
sample of the applicant’s  urine  came  back  positive  for  metabolites  of
cocaine.  Based on this, he was charged with one specification  of  wrongful
use of cocaine, in violation of  Article  112a,  Uniform  Code  of  Military
Justice (UCMJ).  He pled guilty to the charge  and  specification.   He  was
sentenced by a military judge to a bad conduct  discharge,  confinement  for
five months, and reduction to the grade of airman basic.  On 10 Dec 02,  the
convening authority approved the findings and sentence as  adjudged.   On  5
Mar 02, the applicant moved to withdraw his case from appellate review.   On
20 Mar 03, the Air Force Court of Criminal Appeals granted  the  applicant’s
motion, making the findings and sentence in his case  final  and  conclusive
under the UCMJ.  His discharge was executed on 21 Nov 03.

The remaining relevant facts pertaining to this application, extracted  from
the applicant’s military records, are contained in the  letter  prepared  by
the appropriate office of the Air Force at Exhibit C.

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AIR FORCE EVALUATION:

AFOLA/JAJM recommends denial.  The applicant has  identified  no  errors  or
injustice related to his prosecution or  the  sentence.   In  fact,  on  his
application for correction of his records,  he  states  “no  errors”  and  a
review of the record of trial backs up his statement.   He  pled  guilty  at
trial to the charge and specification.  Prior to accepting his guilty  plea,
the military judge ensured he 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  military  judge  explained  the  elements  and
definitions of the offense to  which  the  applicant  pled  guilty  and  the
applicant explained in his own words why he believed he was guilty.

On the court’s acceptance  of  the  applicant’s  guilty  plea,  it  received
evidence in aggravation, as well as in extenuation and mitigation, prior  to
crafting an appropriate sentence for the crimes  committed.   The  applicant
made an unsworn statement in his own behalf and the defense also  introduced
some character statements asking for leniency.  The military judge took  all
of these factors into consideration when imposing the applicant’s  sentence.
 The imposed sentence was well below the  maximum  possible  sentence  of  a
dishonorable discharge:  confinement for 5 years, total forfeitures  of  pay
and allowances, and reduction to the grade of airman basic.

While clemency may be granted, the applicant provides no  justification  for
his request and clemency is not warranted in this case.  The  applicant  has
not submitted even so  much  as  a  character  statement  attesting  to  any
improvements in his behavior in the intervening years.  A BCD  “is  designed
as punishment for bad-conduct  rather  than  as  a  punishment  for  serious
offenses of either a civilian or military nature.”  It is more  than  merely
a service  characterization,  but  as  defined  under  the  Rules  it  is  a
punishment for the crimes the applicant committed  while  a  member  of  the
armed forces.  Additionally, clemency would be unfair to  those  individuals
who honorably served their country  while  in  uniform.   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.  It would be  offensive  to  all  those
who served honorable to extend the same benefits to someone who committed  a
crime such as the applicant’s while on active duty.

The complete JAJM evaluation is at Exhibit C.

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APPLICANT'S REVIEW OF AIR FORCE EVALUATION:

A copy of the Air Force evaluation was forwarded to the applicant on 14  Aug
09, for review and comment within 30 days.  As of  this  date,  this  office
has received no response (Exhibit D).

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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 and adopt its rationale as the basis for the conclusion  that
the applicant has not been the victim of an error or injustice.   Therefore,
in the absence of evidence to the contrary, we find no  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 this application in  Executive
Session on 18 Mar 10, under the provisions of AFI 36-2603:

      Panel Chair
      Member
      Member

The following documentary evidence was considered in AFBCMR BC-2009-01878:

    Exhibit A.  DD Form 149, dated 4 Jun 09, w/atch.
    Exhibit B.  Applicant's Master Personnel Records.
    Exhibit C.  Letter, AFLOA/JAJM, dated 14 Jul 09.
    Exhibit D.  Letter, SAF/MRBR, dated 14 Aug 09.





                                   Panel Chair