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AF | BCMR | CY2010 | BC-2009-03852
Original file (BC-2009-03852.doc) Auto-classification: Denied

                            RECORD OF PROCEEDINGS
             AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS

IN THE MATTER OF:      DOCKET NUMBER:  BC-2009-03852
            INDEX CODE:  110.02
            COUNSEL:
                 HEARING DESIRED:  NO

_________________________________________________________________

APPLICANT REQUESTS THAT:

Her bad conduct discharge (BCD) be upgraded.

_________________________________________________________________

APPLICANT CONTENDS THAT:

Her discharge was inequitable because it was based on less than a  12  month
period [sic]. She has had no trouble or charges against her since  1983  and
has been a good citizen with a clean record.

In support of her request, the applicant submits a criminal  records  search
certification.

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

_________________________________________________________________

STATEMENT OF FACTS:

The applicant enlisted in the Regular Air Force  on  29  May  79.   She  was
accused of using and transferring both marijuana  and  cocaine  on  numerous
occasions between Apr 80 and Feb 81.  On 3 and 4 May 82, she was tried at  a
general court-martial and  eventually  charged  with  one  specification  of
wrongful use of marijuana and one  specification  of  wrongful  transfer  of
cocaine, all in violation of Article 134, Uniform Code of  Military  Justice
(UCMJ).  She pled not guilty to the charge and  specifications;  however,  a
panel of officers and enlisted personnel found her guilty of the charge  and
all  specifications  except  the  specification  of  wrongful  transfer   of
cocaine.

She was sentenced to a bad conduct discharge, confinement  (at  hard  labor)
for 18 months, and forfeiture  of  $350.00  per  month  for  18  months  and
reduction to the grade  of  airman  basic.   On  16 Aug  82,  the  convening
authority approved the findings and sentence as  adjudged.   The  Air  Force
Court of Military Review affirmed the findings and sentence  on  3  Dec  82.
The United States Court of Military Appeals denied the applicant’s  petition
for review on 18 May 83, which made the findings and sentence  in  her  case
final and conclusive under the UCMJ.

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:

AFLOA/JAJM recommends denial.  JAJM notes the  applicant’s  contentions  are
not supported by the Record of Trial.  The record shows  the  applicant  was
afforded all of the procedural  rights  offered  by  the  court-martial  and
appellate process.  She was given the opportunity to  plead  not  guilty  to
the offenses and have  a  panel  of  officer  and  enlisted  members  decide
whether the evidence  showed,  beyond  a  reasonable  doubt,  that  she  had
committed the offenses.  One of the witnesses  testified  that  he  and  the
applicant used marijuana together five to ten times during one  three  month
period.   The  witnesses  also  testified  that  they  later  started  using
marijuana a couple of times a week, that they used  the  marijuana  on  base
and that he bought marijuana from the applicant on a  couple  of  occasions.
A second and third witness corroborated much of the testimony of  the  first
witness  and  also  testified  to  using  marijuana  and  cocaine  with  the
applicant.  The members were able to evaluate the  evidence  and  found  the
applicant guilty of three of the four specifications.

JAJM states clemency in this case 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.

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 15  Jan
10, 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.   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.

_________________________________________________________________

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 Aug 10, under the provisions of AFI 36-2603:

      Panel Chair
      Member
      Member

The following documentary evidence was considered in AFBCMR BC-2009-03852:

    Exhibit A.  DD Form 149, dated 28 Sep 10, w/atch.
    Exhibit B.  Applicant's Master Personnel Records.
    Exhibit C.  Letter, AFLOA/JAJM, dated 17 Dec 09.
    Exhibit D.  Letter, SAF/MRBR, dated 15 Jan 10.



                                   Panel Chair

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