RECORD OF PROCEEDINGS
         AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS

IN THE MATTER OF:	DOCKET NUMBER:  02-01294
		INDEX CODE 126.04
		COUNSEL:  NONE

		HEARING DESIRED:  NO

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APPLICANT REQUESTS THAT:

The Article 15 action and the punishment imposed on 7 Jun 01, be set aside.
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APPLICANT CONTENDS THAT:

The Article 15 was not appropriate because the Administrative Discharge Board determined that no drug offense occurred.  Specifically, the board determined that there was no wrongful possession of any Schedule III controlled substances and that he should be retained in the Air Force.  In view of the board’s findings, the Article 15 action should be repealed.

In support of his request, applicant submits a personal statement, a copy of a memorandum his defense counsel sent to his commander and a copy of the Administrative Discharge Board’s record of proceedings.  The applicant’s complete submission, with attachments, is at Exhibit A.
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STATEMENT OF FACTS:

The applicant’s Total Active Federal Military Service Date (TAFMSD) is 27 Oct 94.  He was progressively promoted to the grade of staff sergeant (E-5), with an effective date and date of rank of 1 Jun 00.  He was reduced to the grade of senior airman (E-4), with a date of rank (DOR) of 7 Jun 01, pursuant to an Article 15.

On 30 May 01, applicant was notified of his commander's intent to impose nonjudicial punishment on him under Article 15, UCMJ.  The misconduct applicant had allegedly committed was for wrongfully possessing Testosterone, Deca-Durabolin and Human Chorionic Gonadotropin (HCG), schedule III controlled substances, between on or about 1 Oct 00 and on or about 25 Mar 01, in violation of Article 112a, UCMJ.  The applicant consulted a lawyer, waived his right to demand trial by court-martial and accepted nonjudicial punishment.  After considering all matters presented to him, the commander found that the applicant did commit one or more of the offenses alleged.  The commander imposed punishment of reduction to the grade of senior airman, with a new date of rank of 7 Jun 01.  Applicant did not appeal the punishment.

On 2 Jul 01, the applicant received notification that he was being recommended for discharge for misconduct; specifically, for drug abuse.  On 9 Jul 01, he elected to present his case to an administrative discharge board.  On 24 Jan 02, the applicant appeared before an administrative discharge board at Hurlburt Field, FL.  The board found the applicant did not, between on or about 1 Oct 00 and on or about 26 Mar 01, wrongfully possess Testosterone and Deca-Durabolin schedule III controlled substances.  The board recommended that, since it has not been shown by a preponderance of the evidence that a drug offense has been committed by the applicant, he should be retained in the Air Force.

Applicant's profile for the last 6 reporting periods follows:

		Period Ending	Evaluation

		 26 Jun 96	5 - Immediate Promotion 
		 26 Jun 97	5
		 28 Jun 98	5
		 28 Jun 99	5
		 28 Jun 00	5
		 28 Jun 01 (Referral)	2 - Not Recommended at This Time
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AIR FORCE EVALUATION:

AFLSA/JAJM recommends the application be denied.  JAJM stated that by mischaracterizing Human Choronic Gonadotrophin (HCG), two issues must be resolved by the AFBCMR with regard to the Article 15.  Was the Article 15 unjust because HCG was characterized as a schedule III controlled substance and, if not, does the finding of the discharge board make the Article 15 invalid.  In JAJM’s opinion, both questions should be answered no and resolved against the applicant.

JAJM stated that the Article 15 mischaracterized HCG as a schedule III controlled substance in both the Article 15 action and later in the discharge action.  However, the applicant was on notice that his conduct in possession of HCG was unlawful.  The applicant was on notice and in fact admitted wrongful possession of HCG.  He acknowledged in his written statement that his action was wrong and he did in fact possess, and transfer, HCG.  The evidence in front of the commander included the statements of the witnesses and the admission by applicant.  There was sufficient evidence for the commander to determine that the applicant had possessed Schedule III controlled substances of Testosterone and Deca-Durabolin and the prescription drug HCG.  Mischaracterizing HCG did not produce an unjust result.

Does the finding of the discharge board make the Article 15 invalid, JAJM indicated that it is difficult to tell from the abbreviated record of the board proceeding exactly what evidence was in front of the board as to the steroids.  While the commander and board came to differing conclusions about possession of testosterone and DECA, JAJM stated that there are no conflicting conclusions about the HCG.  The fact that two separate fact finders reached partially different conclusions is not dispositive, particularly on this record and particularly where the one issue the applicant admitted was not presented to the board.  While the applicant would prefer the AFBCMR draw the conclusion the discharge board was correct and the commander wrong, it is just as logical to draw the opposite conclusion that the commander was correct and the board wrong.  The commander was presented the opportunity to revisit the Article 15 and did not do so.  The commander’s findings are neither arbitrary nor capricious and should not be disturbed.

JAJM stated that a set aside should only be granted when the evidence demonstrates an error or a clear injustice.  The evidence presented by the applicant is insufficient to warrant setting aside the Article 15 action, and does not demonstrate an equitable basis for relief.  The applicant has provided no evidence of clear error or injustice related to the nonjudicial punishment action.  The AFLSA/JAJM evaluation is at Exhibit C.

HQ AFPC/DPPPWB recommends the application be denied.  DPPPWB defers to the recommendation of AFLSA/JAJM.  However, if the Board decides to remove the Article 15 as requested, the applicant’s original date of rank (DOR) for staff sergeant (E-5) was 1 Jun 00.  Although his original DOR makes him eligible for promotion consideration to the grade of technical sergeant (E-6) for Cycle 02E6 (promotions effective Aug 02 - Jul 03), he received a referral Enlisted Performance Report (EPR) for the period 29 Jun 00 - 28 Jun 01, which is an ineligibility factor for promotion consideration.  The HQ AFPC/DPPPWB evaluation is at Exhibit D.
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APPLICANT'S REVIEW OF AIR FORCE EVALUATION:

Copies of the Air Force evaluations were forwarded to applicant on 19 July 2002 and 2 August 2002 for review and response.  As of this date, no response has been received by this office (Exhibit E).
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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 timely filed.

3.  Insufficient relevant evidence has been presented to demonstrate the existence of error or injustice with respect to the Article 15 action.  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 appropriate Air Force office (AFLSA/JAJM) and adopt the rationale expressed as the basis for our decision that the applicant has failed to sustain his burden that he has suffered either an error or an injustice.  In view of the above and absent persuasive evidence to the contrary, we find no compelling 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 24 September 2002, under the provisions of AFI 36-2603:
The following documentary evidence was considered: 

   Exhibit A.  DD Form 149, dated 11 Apr 02, w/atchs.
   Exhibit B.  Applicant's Master Personnel Records.
   Exhibit C.  Letter, HQ AFLSA/JAJM, dated 21 Jun 02.
   Exhibit D.  Letter, HQ AFPC/DPPPWB, dated 11 Jul 02, w/atch.
   Exhibit E.  Letters, SAF/MRBR, dated 19 Jul 02 and 2 Aug 02.