RECORD OF PROCEEDINGS
             AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS

IN THE MATTER OF:      DOCKET NUMBER:  BC-2009-01955
            INDEX CODE:  110.00
            COUNSEL:  NONE
            HEARING DESIRED:  NO

_________________________________________________________________

APPLICANT REQUESTS THAT:

Her Bad Conduct Discharge (BCD) be  upgraded  to  General  (Under  Honorable
Conditions).

_________________________________________________________________

APPLICANT CONTENDS THAT:

In 1990, she was court-martialed for  experimenting  with  cocaine.   During
that time, she had been in  an  abusive  marriage  for  approximately  three
years.  She was in  her  mid-twenties  and  working  as  a  Substance  Abuse
Counselor in the Social Actions office.  She cross-trained into this  career
field because her mother had died from Alcoholism and she  wanted  a  career
where she could help others with addictions to mind altering substances.

After counseling and separation,  she  and  her  then  husband  (now  former
spouse) reconciled; however, the mental and  physical  abuse  started  again
and she ultimately turned to alcohol to escape and drown  her  misery.   Her
abuse of alcohol led to her experimenting with  cocaine.   She  should  have
sought help but was  ashamed  and  embarrassed.   She  was  a  Drug  Alcohol
Counselor, worked in Law Enforcement at  the  front  gate  once  a  quarter,
taught aerobics at the base gym, sang on her church choir and  was  actively
involved in her community with  charitable  organizations.   She  absolutely
loved the military and serving her country was the most honorable thing  she
had ever done.  Her father was in the Army for 21 years, was a Purple  Heart
recipient and a First Sergeant.  Her brother was in the Army  for  20  years
and her sister served in the Air Force for 12 years.

There is nothing she regrets more than using cocaine to  temporarily  escape
her problems.  She takes full ownership  and  responsibility  for  the  poor
decision she made while in the military.

Her first seven years in the service were  completely  without  blemish  and
she was a proud soldier.  She  is  very  sorry  for  the  embarrassment  she
caused the Air Force, her family and herself.  Her intention  was  to  serve
her country for a minimum of 20 years like her father did in the Army.   She
should have  reached  out  for  help  but  did  not  and  has  suffered  the
consequences for her actions.

Since that time, she has been divorced for 20 years, is a  proud  member  of
Alcoholic Anonymous (AA), a Texas Correctional  Officer,  actively  involved
in her church, a member of the Beaumont  Health  and  Fitness  facility  and
regularly performs community service to give back  to  her  community.   She
learned in AA that she was not in a position to effectively help  others  if
she could not help herself.  She made a huge mistake while in  the  service.
She has learned from her mistakes and would be so honored if  her  discharge
was upgraded to General (under honorable conditions).

Her use of cocaine was an isolated incident within an eight year  period  of
service.  She had never been in trouble before this occurrence.  The  reason
for the length of time between  her  character  reference  letters  and  her
application is because she had to build up her  courage  to  write  her  own
letter.  She shares her story with others to encourage them not to make  the
same mistakes she did because today there are many other choices as  opposed
to using drugs.

In support  of  the  application,  the  applicant  submits  eight  character
reference letters, a copy of her DD Form  214,  Certificate  of  Release  or
Discharge from Active Duty,  and  a  letter  of  clearance  (felony  records
search).

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

_________________________________________________________________

STATEMENT OF FACTS:

The applicant enlisted in the Regular Air Force  on  10  Feb  82.   She  was
appointed to the grade of sergeant on 10 Feb 84.  The following is a  resume
of her Enlisted Performance Reports:

Close Out Date   Overall Rating

10 Feb 82        9
30 Aug 83        9
26 Mar 84        9
26 Mar 85        9
26 Mar 86        9
26 Mar 87        9
23 Sep 87        9
23 Sep 88        9
23 Sep 89        9
31 Mar 90        1

In Feb 90, the applicant was found to have used cocaine.   She  was  charged
with one specification  of  wrongful  use  of  a  controlled  substance,  in
violation of Article 112a, Uniform Code of Military Justice (UCMJ).   On  22
Jun 90, she was tried at a general court-martial.  She pled guilty  and  was
sentenced  to  a  bad  conduct  discharge,  confinement  for  four   months,
forfeiture of $480.00 pay per month for four months, and a reduction to  the
grade of airman basic.  On 30 Aug 90, the convening authority  approved  the
finding and sentence as adjudged.  The Air Force Court  of  Military  Review
affirmed the findings  and  sentence  on  13  Nov  91.   The  applicant  was
discharged on 27 Jan 93.  She served 11 years and 13 days on active duty.

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.

_________________________________________________________________

AIR FORCE EVALUATION:

ALFOA/JAJM recommends  denial.   JAJM  states  an  applicant  must  file  an
application within three years after an error  or  injustice  is  discovered
or, with due diligence, should have been discovered.  The applicant’s court-
martial took place in 1990 and the discharge  was  executed  in  1993.   The
application is untimely.

Under 10 U.S.C.  §  1552(f),  which  amended  the  basic  corrections  board
legislation, the Board’s ability  to  correct  records  related  to  courts-
martial  is  limited.   Specifically,   section   1552(f)(1)   permits   the
correction of a record to reflect actions taken  by  a  reviewing  authority
under the UCMJ.  Additionally, section 1552(f)(2) permits the correction  of
records related to action on the sentence of courts-martial for the  purpose
of clemency.  Apart  from  these  two  limited  exceptions,  the  effect  of
section 1552(f) is that the Board  is  without  authority  to  reverse,  set
aside, or otherwise expunge a court-martial conviction that occurred  on  or
after 5 May 50 (the effective date of the UCMJ).

The  applicant  has  identified  no  error  or  injustice  related  to   her
prosecution or the sentence, but says there is injustice in  the  fact  that
she received the bad conduct discharge in  light  of  her  otherwise  clean,
eight-year  military  record.   She  pled   guilty   to   the   charge   and
specification.  In such a case, prior to  accepting  the  guilty  plea,  the
military judge would ensure the accused understood the  meaning  and  effect
of her plea and the maximum punishment that could be imposed if  the  guilty
plea was accepted by the court.  In this  case,  the  imposed  sentence  was
below  the  maximum  possible  sentence   of   a   dishonorable   discharge,
confinement for five years, reduction to the  grade  of  airman  basic,  and
total forfeitures of all pay and allowances.

While clemency may be granted, the applicant  does  not  provide  sufficient
justification for her request.  The character letters  and  the  applicant’s
personal memorandum do not outweigh the seriousness of the offense of  which
she was convicted.  Furthermore, a bad conduct discharge is intended  to  be
more than merely a service characterization, but is  a  punishment  for  the
crimes the applicant committed while a member of the armed forces.

It is commendable the applicant is a  successful  member  of  AA  and  is  a
productive member of her community, but this along with  the  fact  that  19
years have passed since her court-martial does not erase her  past  criminal
conduct or make her bad conduct  discharge  any  less  appropriate  for  the
offense she committed.  To overturn this punishment now  would  require  the
Board to substitute its judgment for that rendered  by  the  court  and  the
convening authority 19 years ago  when  the  facts  and  circumstances  were
fresh.  A bad conduct discharge was and continues to be  part  of  a  proper
sentence and properly characterizes her service.

JAJM opines 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’  Benefits  Program  was  to  express  thanks  for
veterans’ personal  sacrifices,  separations  from  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 for 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 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 28  Aug
09, for review and comment within 30 days.  As of  this  date,  this  office
has received no response (Exhibit D).

_________________________________________________________________

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.  As noted by AFLOA/JAJM,  actions  by  this
Board related to courts-martial are limited to corrections on  the  sentence
for the purpose of clemency or to correct  the  record  to  reflect  actions
taken by reviewing authorities under the Uniform Code of  Military  Justice.
However, in  our  view  the  applicant  has  failed  to  present  sufficient
evidence that would warrant this exercise of our authority.   We  considered
upgrading her discharge on the  basis  of  clemency;  however,  due  to  the
serious nature of the offense committed, we believe the characterization  of
her discharge was proper and in compliance with the appropriate  directives.
 Therefore, we agree with AFLOA/JAJM and adopt their rationale as the  basis
for our conclusion the applicant has not been the  victim  of  an  error  or
injustice regarding her court-martial.   Based  on  the  aforementioned,  we
find no evidence of error or injustice; therefore, the  applicant’s  request
is not favorably considered.

_________________________________________________________________

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 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-2009-01955:

    Exhibit A.  DD Form 149, dated 20 May 09, w/atchs.
    Exhibit B.  Applicant's Master Personnel Records.
    Exhibit C.  Letter, AFLOA/JAJM, dated 6 Aug 09.
    Exhibit D.  Letter, SAF/MRBR, dated 28 Aug 09.




                                   Panel Chair