RECORD OF PROCEEDINGS
AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS

IN THE MATTER OF:	DOCKET NUMBER: 01-01880
		INDEX CODE 110.00  136.00
	 	COUNSEL:  ALVIN CHASE

	 	HEARING DESIRED:  NO

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APPLICANT REQUESTS THAT:

1.	His general discharge be set aside.

2.	He be retired on 18 August 1997 in the grade of technical sergeant (E-6), with back pay, or in the alternative;

3.	He be retired on 18 August 1997 in the grade of staff sergeant (E-5), or in the alternative;

4.	He be retired on 19 September 1995 in the grade of technical sergeant under The Early Retirement Authority (TERA).

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THE APPLICANT CONTENDS THAT:

He was denied due process and the action taken against him constituted cruel and excessive punishment and was an abuse of discretionary authority.

The applicant’s counsel states the following:

	a.	The applicant’s due process rights were violated when he was not considered for lengthy service probation.  The squadron section commander failed to notify the applicant of his entitlement to lengthy service probation consideration.

	b.	Improper legal advice was provided to the applicant’s commanders who were responsible for making recommendations on his request for lengthy service probation.  The commanders were inappropriately advised to disregard the policy of considering lengthy service probation even if the misconduct was drug abuse.

	c.	The findings of the administrative discharge board are not supported by the evidence.  There was insufficient evidence to warrant the finding that the drug abuse was not experimental.

	d.	The legal advisor’s instruction to the Administrative Discharge Board (ADB) that the applicant must prove all of the seven factors to the board’s satisfaction was erroneous.  The standard of proof is a preponderance of the evidence in an ADB proceeding, not merely to the board’s satisfaction.

	e.	The failure to properly advise the applicant of his eligibility for special lengthy service consideration prejudiced his case because it unlawfully and unfairly added at least an additional three months and seven days to the processing of his case.  As a result, he was kept on active duty long enough to be the subject of another drug inspection which may well have been intended to test him without officially notifying him that he was on conditional probation.

	f.	The special court-martial authority should have recused himself from any further action once it was brought to his attention that he had been misinformed when his Staff Judge Advocate (SJA) advised him that the applicant did not want to be considered for lengthy service.

	g.	Commanders in the lower echelons processed the case as a request for lengthy service consideration while commanders at the higher echelons and the Secretary processed the case as a request for retirement in lieu of discharge.

	h.  The 96th ABW/CC and AFDTC/CC were misled to believe that policy does not permit an airman with lengthy service to be retired once an ADB has recommended discharge for drug abuse.

	i.	The Secretary unfairly and unjustly refused to direct the applicant’s retirement instead of his administrative discharge even though he had already attained the minimum retirement eligibility.

In support of the appeal, counsel submits the applicant’s and his wife’s personal statements, character statements, and extracts from the discharge proceedings.

Counsel’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 30 April 1976 and entered active duty on 20 September 1976.  He was progressively promoted to the grade of master sergeant (E-7).

The applicant entered his last enlistment on 5 October 1995 for a period of four years.

The applicant tested positive for Tetrahydrocannabinol (THC) during a random urinalysis test on 18 December 1995.

On 24 May 1996, a special court-martial convicted the applicant of one specification of a violation of Article 112a, of the Uniform Code of Military Justice (UCMJ), for wrongful use of marijuana on one occasion.  He pled guilty at trial, and was sentenced to be reduced in grade to technical sergeant and to be reprimanded.

On 18 June 1996, the commander notified the applicant of his intent to recommend his general discharge (under honorable conditions) for misconduct.  The commander noted the misconduct was his use of marijuana on or about 16 December 1995 with a resultant special court-martial conviction.

On 25 June 1996, the applicant requested an Administrative Discharge Board (ADB) hearing.

An ADB convened on 17 September 1996 and recommended the applicant’s discharge, with service characterized as general (under honorable conditions).  The specific findings of the ADB were as follows:

	a.	The applicant used marijuana sometime from about 16 December 1995 to about 18 December 1995.

	b.	Drug abuse was a departure from his usual and customary behavior.

	c.	Drug use did not occur as the result of drug experimentation.

	d.	Drug abuse involved recurring incidents other than experimentation.

	e.	The applicant did not desire or intend to engage in future drug abuse.

	f.	Under the circumstances of the case, drug abuse will likely recur.

	g.	The applicant’s retention is not consistent with Air Force interests; and,

	h.	Drug abuse did not involve drug distribution.

On 7 January 1997, the applicant was notified of his right to request retirement and he requested retirement effective 1 February 1997.

The discharge authority approved the discharge on 12 February 1997 and recommended disapproval of his request for retirement in lieu of discharge.

On 27 May 1997, the applicant again tested positive for THC during a random urinalysis test.

On 23 June 1997, the commander notified the applicant of his intent to impose nonjudicial punishment under Article 15 of the UCMJ for violation of Article 112a for wrongful use of marijuana from on or about 22 May 1997 to on or about 27 May 1997.  After consulting with counsel, he waived his right to trial by court-martial and accepted the nonjudicial punishment.  After considering the oral and written presentation of the applicant, on 3 July 1997, the commander determined he did commit the offense alleged and imposed punishment consisting of reduction to the grade of staff sergeant and forfeiture of $865.00 pay per month for two months.  The applicant did not appeal the punishment.

On 7 August 1997, the Secretary denied his request for retirement in lieu of discharge and directed the execution of the approved administrative discharge.

The applicant was discharged on 18 August 1997, for misconduct with service characterized as general (under honorable conditions).  He completed 20 years, 10 months, and 29 days of active service.

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AIR FORCE EVALUATIONS:

AFPC/DPPRS recommends the application be denied and states, in part, that while the applicant contends that he should have been considered for lengthy service probation, the directive specifically states that it is reserved for members who have at least 16 years but less than 20 years of service when the discharge is started.  However, if they go beyond 20 years of active service during the discharge process, the case becomes a dual action case.  A member cannot be placed on lengthy service probation if they are retirement eligible since lengthy service probation only takes the member to minimum retirement eligibility.  Dual action is required when an involuntary discharge is approved and the member is retirement eligible with 20 or more years of active creditable service, and they apply for retirement.  This is not a retirement in lieu of further actions as stated by the applicant but an opportunity for the member to apply for retirement after an involuntary discharge has been approved.  Both the retirement application and the involuntary discharge action are forwarded to the Secretary for a decision as to which will be executed.

The AFPC/DPPRS evaluation is at Exhibit C.

AFPC/JA recommends the application be denied and states, in part, that the applicant has submitted his request more than three years from the date of his involuntary discharge and has failed to show that the statute of limitations should be tolled, or that the Board waiving the statute of limitations would serve justice.  Should the Board waive the applicant’s failure to timely file, they note the following:

	a.	Since the applicant had more than 20 years of active service during the discharge process, his case was processed as a dual action.  He has confused the provisions relating to airmen with lengthy service and dual action processing.  He has submitted no evidence to indicate that his commander should have been recused.  The fact that he was advised late of his ability to request retirement did not prejudice him in any way.

	b.	No material errors occurred during the discharge proceedings and the board members were properly instructed as to how to make their recommendations and findings.

	c.	Applicant focuses only on the active duty service requirement for retirement and ignores the reality that retirement is a privilege and not a right attained merely by the passage of active duty time.  While awaiting action on his request to retire and impending discharge, he again wrongfully used marijuana and was again reduced in rank.  The Secretary’s decision was appropriate given the egregious circumstances of the applicant’s misconduct.

The AFPC/JA evaluation is at Exhibit D.

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APPLICANT’S REVIEW OF AIR FORCE EVALUATIONS:

Complete copies of the evaluations were forwarded to the applicant’s counsel on 26 October 2001 for review and response.

At counsel’s request, on 26 November 2001, the application was withdrawn.

On 12 February 2002, the applicant’s counsel provided comments to the evaluations and requested the application be reopened.

The applicant’s counsel states that it was not until 30 October 2000 that the applicant discovered the error or injustice in his records.  It was at that time that he received a complete copy of his case file and discovered that commanders were improperly advised regarding his eligibility for lengthy service probation.  Regardless, the Board should waive any alleged failure to timely file his application in the interest of justice.  While the AFPC/JA evaluation argues that the applicant has confused the provisions of lengthy service probation with dual processing, it is clear that this same misunderstanding went through to the legal review submitted to the separation authority.

In summary, counsel states that the applicant violated Air Force policy and the law; he accepted that responsibility and admitted his guilt.  The court-martial recognized this and elected not to punitively discharge him.  However, the ADB felt duty bound to recommend involuntary discharge.  The Air Force failed to process his case efficiently and without undue delay and otherwise follow its administrative procedures which resulted in more than three months being added to his stay in the Air Force.  Had he not remained on active duty an extra three months, while not required, it was likely, based on similar cases, that the Secretary would have approved his retirement.

Counsel’s complete response is at Exhibit H.

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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.  After thoroughly reviewing the evidence of record and noting the applicant’s contentions, a majority of the Board is not persuaded that he has been the victim of an error or injustice.  In this respect, a majority of the Board notes the following:

	a.	The applicant’s due process rights were not violated when he was not considered for lengthy service probation.  This provision exists to allow members with 16 but less than 20 years of service to reach retirement eligibility.  In the applicant’s case, he attained over 20 years of service during the discharge process.  A member cannot be placed on lengthy service probation who is retirement eligible since lengthy service probation only takes the member to minimum retirement eligibility.

	b.	The applicant has not met his burden of proving that the findings of the administrative discharge board are not supported by the evidence.  The applicant contends there was insufficient evidence to warrant the finding that the drug abuse was not experimental; however, he has failed to support this contention.  Furthermore, this contention is inconsistent with his subsequent drug use.  Especially, when considering the later drug use occurred after administrative action had been initiated against him for his earlier drug use.

	d.	There has been no showing that the legal advisor’s instruction to the Administrative Discharge Board (ADB) was erroneous.  To the contrary, the Staff Judge Advocate has examined the report of the board proceedings, the exhibits, and the legal reviews and determined that no material errors occurred during the proceedings, and that the board members were properly instructed as to how to make their findings and recommendations.

	e.	A majority of the Board is not persuaded that there was an inordinate delay in the processing of the applicant’s case or that the delay was prejudicial to him.  Although not initially advised of his ability to request retirement, he was later so advised, and requested retirement.  It appears the additional processing time was necessary to insure his retirement request was processed accordingly.  He contends he was prejudiced by the delay because it unlawfully and unfairly kept him on active duty long enough to be the subject of another drug inspection to which he tested positive.  However, it was his repeated drug use, not the additional three months and seven days of service that prejudiced him.

	f.	The fact that he completed 20 years of service does not render the Secretary’s decision to deny his request for retirement unfair and unjust.  As indicated by the Staff Judge Advocate, retirement is a privilege and not a right obtained by the passage of time.  The decision was well within the Secretary’s authority and there is no evidence that the decision was arbitrary or capricious.  To the contrary, given the fact that the applicant wrongfully used marijuana a second time while awaiting action on his retirement request and his impending discharge, it would appear the decision was appropriate.  There being insufficient evidence to the contrary, a majority of the Board finds no compelling basis to recommend granting the relief sought.

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RECOMMENDATION OF THE BOARD:

A majority of the Board finds insufficient evidence of error or injustice and recommends the application be denied.

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The following members of the Board considered Docket Number 01-01880 in Executive Session on 11 June 2002, under the provisions of AFI 36-2603:

				Panel Chair
				Member
				Member

A majority of the Board voted to deny the application.  Mr. voted to grant the applicant’s request that his general discharge be set aside and he be retired on 18 August 1997 in the grade of staff sergeant (E-5), but does not wish to submit a Minority Report.  The following documentary evidence was considered:

    Exhibit A.  DD Form 149, dated 2 Jul 01, w/atchs.
    Exhibit B.  Applicant's Master Personnel Records.
    Exhibit C.  Letter, AFPC/DPPRS, dated 20 Sep 01.
	Exhibit D.  Letter, AFPC/JA, dated 17 Oct 01.
	Exhibit E.  Letter, SAF/MIBR, dated 26 Oct 01.
	Exhibit F.  Letter, Counsel, dated 14 Nov 01.
	Exhibit G.  Letter, AFBCMR, dated 26 Nov 01.
	Exhibit H.  Letter, Counsel, dated 12 Feb 02, w/atch.