RECORD OF PROCEEDINGS 

AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS 

 

IN THE MATTER OF: DOCKET NUMBER: BC-2010-00767 

 COUNSEL: NONE 

 HEARING DESIRED: NO 

 

_________________________________________________________________ 

 

APPLICANT REQUESTS THAT: 

 

It appears the applicant is asking for his court-martial 
conviction to be expunged from his records. 

 

_________________________________________________________________ 

 

APPLICANT CONTENDS THAT: 

 

He was never charged with possession of Schedule I, II, or III 
Drugs. He suffered from a number of mental disorders while in 
the military and the medication Zoloft worsened his disorders. 
The wrongful use of marijuana should be expunged from his record 
because the medicine affected his behavior which caused him to be 
court-martialed. 

 

In support of his request, the applicant provides copies of his 
court agency charge sheet, Special Court-Martial Order No. 5, and 
his DD Form 214, Certificate of Release or Discharge from Active 
Duty. 

 

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

 

_________________________________________________________________ 

 

STATEMENT OF FACTS: 

 

The applicant entered the Air Force on 21 July 1999 and was 
progressively promoted to the grade of senior airman. 

 

On 15 March 2007, the applicant was tried by a Special Court-
Martial. The bases for the commander’s recommendation were that 
in October 2006 and December 2006, the applicant’s urine tests 
returned positive indicating the use of marijuana. A subsequent 
investigation showed the applicant had used marijuana eight times 
between October and December 2006. In addition, the applicant 
was accused of being absent without leave (AWOL) by failing to go 
to a required medical appointment. He was eventually charged 
with one specification of absence without leave in violation of 
Article 86, Uniform Code of Military Justice (UCMJ) and one 
specification of wrongful use of marijuana, in violation of 
Article 112a, UCMJ. 

On January 2007, the applicant’s defense counsel requested a 
sanity board to conduct an evaluation based on his apparent 


depression, anxiety and parasomnia disorders. On 12 March 2007, 
the sanity board concluded that at the time of the applicant’s 
alleged offenses, he suffered from severe mental disorders but 
was able to appreciate the nature and wrongfulness of his 
conduct. The evaluation further determined the applicant had 
sufficient mental capacity to understand the nature of the court-
martial proceedings and to cooperate intelligently in his own 
defense. 

 

Pursuant to the pretrial agreement, the applicant pled guilty to 
wrongfully using marijuana and not guilty to AWOL. The charge of 
AWOL was dismissed. The military judge found the applicant 
guilty of wrongfully using marijuana and sentenced him to four 
months confinement and reduction to airman basic. On 12 April 
2007, the convening authority approved the findings and sentence 
as adjudged. A judge advocate reviewed the applicant’s 
conviction and found no legal or factual errors. On 13 April 
2007, the commander notified the member that he was recommending 
he be administratively discharged under the provisions of AFI 36-
3208, Administrative Separation of Airmen, Misconduct – Pattern 
of Misconduct – Conduct Prejudicial to Good Order and Discipline 
and Drug Abuse, with a general service characterization. The 
applicant acknowledged receipt of the notification of discharge 
and waived his right for a board hearing. 

 

On 29 June 2007, the applicant was discharged with a general 
service characterization after completing of 4 years, 9 months 
and 10 days of total active service. 

 

_________________________________________________________________ 

 

AIR FORCE EVALUATION: 

 

AFLOA/JAJM recommends denial. JAJM states the applicant was 
given a full medical evaluation of his mental disorders by a 
sanity board ordered by the military judge. The sanity board 
concluded the applicant had sufficient mental capacity to 
understand the nature of the proceedings and to cooperate in his 
own defense. 

 

The Record of Trial indicated no error in the processing of the 
applicant’s case. He freely entered into a pretrial agreement 
and pled guilty to the charge and specification of wrongful use 
of marijuana in exchange for no confinement in excess of six 
months and to defer and/or waive all adjudged forfeitures of pay. 
He pled guilty to the agreed upon pretrial hearing arrangement. 
Prior to accepting the applicant’s guilty plea, the judge ensured 
he understood the meaning and effect of his plea and the maximum 
punishment he could receive from the court. After the judge 
explained the elements and definitions of the offense, the 
applicant explained in his own words why he believed he was 
guilty. 

 


The military judge considered all the factors when imposing the 
applicant’s sentence. The sentence was well below the maximum 
possible sentence of a bad conduct discharge, confinement for one 
year, forfeitures of two-thirds pay per month for one year and 
reduction to airman basic. The applicant’s personal history does 
not constitute an error or injustice in the court-martial or 
post-trial process. The applicant admitted his crime during his 
court-martial and all of his rights during the process were 
observed without exception. Based on the documents submitted by 
the applicant in support of his appeal, he was convicted of only 
one offense of wrongful use of marijuana and no other offense. 

 

While clemency may be granted under 10 U.S.C., Section 
1552(f)(2), the applicant has not presented any new information 
that was not available during the trial which supports the Board 
granting clemency and undoing the decisions of the military judge 
and the convening authority made 35 months ago. The applicant 
has not provided any support for the idea he turned his life 
around or he has made a difference in his community – factors 
that might warrant some consideration for clemency. 

 

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 16 April 2010, 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 timely filed. 

 

3. Insufficient relevant evidence has been presented to 
demonstrate the existence of an 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 relief from the Board. 

 

 

Therefore, we agree with AFLOA/JAJM and adopt their rationale as 
the basis for our conclusion that the applicant has not been the 
victim of an error or injustice regarding his court-martial. 


Based on the above, 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 Docket Number BC-
2010-00767 in Executive Session on 10 June 2010, under the 
provisions of AFI 36-2603: 

 

 Panel Chair 

 Member 

 Member 

 

The following documentary evidence was considered: 

 

 Exhibit A. DD Form 149, dated 21 Jan 10, w/atchs. 

 Exhibit B. Applicant's Master Personnel Records. 

 Exhibit C. Letter, AFLOA/JAJM, dated 24 Mar 10. 

 Exhibit D. Letter, SAF/MRBR, dated 16 Apr 10. 

 

 

 

 

 

 Panel Chair