RECORD OF PROCEEDINGS
AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS

IN THE MATTER OF:	DOCKET NUMBER:  02-02536
		INDEX CODE:  126.00

		COUNSEL:  XXXX

		HEARING DESIRED:  NO

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APPLICANT REQUESTS THAT:

He be returned to active duty in the Air Force, that he be reinstated to the grade of staff sergeant (E-5), and that he be compensated for lost wages and benefits. 

__________________ _______________________________________________

APPLICANT CONTENDS THAT:

On 18 April 2002, he was involuntarily separated from the Air Force for allegations of illegal drug use.  Statements were made to the Office of Special Investigations (OSI) in regard to his participating in the use of illegal drugs.  Both of the statements given by the individuals were false and have since been recanted.  He has both statements in writing.  There was never any physical evidence to support these allegations, and he has taken several urinalysis tests all of which resulted in negative outcomes.  He has submitted several rebuttals in his defense, all of which were ignored by his commanders.  He states that his separation was based solely on hearsay and fabricated stories.

In support of his appeal, the applicant provided a personal statement, 7 character references and other documentation.

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

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STATEMENT OF FACTS:

Applicant enlisted in the Regular Air Force on 13 November 1996 in the grade of airman basic for a period of 4 years.

The applicant was notified of his commander's intent to initiate discharge action against him for misconduct.  Specifically, between on or about 1 April 2000 and on about 1 December 2000, the applicant wrongfully used marijuana for which he was given a Letter of Reprimand (LOR), dated 13 March 2002.

The commander advised applicant of his right to consult legal counsel and submit statements in his own behalf; or waive the above rights after consulting with counsel.

After consulting with counsel, applicant submitted statements in his own behalf.

On 15 April 2002, the Staff Judge Advocate recommended approval of the separation with a general (under honorable conditions) discharge, without probation and rehabilitation.

On 15 April 2002, the discharge authority approved applicant’s discharge.
 
Applicant was discharged on 18 April 2002 in the grade of senior airman, with a general (under honorable conditions) discharge, in accordance with AFI 36-3208 (Misconduct).  He completed 5 years, 5 months and 5 days of total active duty service.

EPR profile reflects the following:

	PERIOD ENDING	EVALUATION OF POTENTIAL

		12 Jul 98		5
		12 Jul 99		5
	   12 Jul 00		5
		12 Jul 01		5

The OSI Investigation concluded that there was no information found in the applicant’s military records, medical records, law enforcement records, or through a sample of applicant’s urine that indicated drug use.  Each review disclosed no information relevant to this investigation (Exhibit J).

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AIR FORCE EVALUATION:

AFPC/DPPRS recommended denial.  They indicated that based upon the documentation in the file, they believe the discharge was consistent with the procedural and substantive requirements of the discharge regulation.  Additionally, the discharge was within the discretion of the discharge authority.

The applicant did not submit any new evidence or identify any errors or injustices that occurred in the discharge processing.  He provided no other facts warranting an upgrade of the discharge.

The evaluation is at Exhibit C.

AFPC/JA recommended denial.  They indicated that the applicant attacks the decisions of his commander and the separation authority, arguing that they are based upon faulty evidence.  But to successfully contest the validity of actions taken against him, the applicant bears a difficult burden.  He must overcome a strong presumption that these military administrators, like other public officials, discharge their duties correctly, lawfully, and in good faith.  Hary v. Unites States, 223 Ct.Cl. 10, 17, 618 F.2d 704, 707(1980).

Throughout the entire process, the applicant has maintained essentially the same defense.  That is, he did not use marijuana and the witnesses against him were lying.  In response to the LOR, the applicant gave his commander a letter written by a witness, which supposedly recanted an earlier statement she had made to the AFOSI.  The applicant’s area defense counsel (ADC) also submitted a letter to the commander, stating that AB I--- had told him on the telephone that he had lied to the AFOSI about the applicant’s drug use.  Now the applicant has submitted one piece of new evidence - a hand-written statement purportedly signed by AB I--- that essentially repeats the same claim made to the applicant’s ADC.  Since the evidence found in this new statement was already presented by the ADC to the commander and the separation authority, it is of limited value with regard to supporting the applicant’s current claims of error or injustice.

After receiving the evidence of the applicant’s defense, they presume that the commander and the separation authority discharged their duties in good faith and carefully considered all the evidence in the case.  Keep in mind that these officers had access to the investigative files prepared by the AFOSI, not just the exculpatory evidence the applicant presented to them.  The commander and the separation authority likely weighed all of this evidence; pro and con, but ultimately did not believe the applicant’s defense.

The applicant has not met his burden of proving an error or injustice in his case.  The commander and separation authority considered the applicant’s defense, but apparently, in light of all the evidence, did not believe it.  Just because the applicant’s defense was not convincing to these officers, does not mean an error or injustice occurred.

The evaluation is at Exhibit D.

AFPC/DPPPWB recommended denial.  They indicated that the applicant was supplementally considered and selected for promotion to SSgt during the 01E5 in-system supplemental process.  His promotion sequence number was 9879.9, which would have given him a 1 January 2002 date of rank (DOR).  However, on 10 January 2002, he received notification from his commander that his promotion was being withheld pending the outcome of an investigation for possible drug use.  The applicant was discharged under honorable conditions (general) for misconduct on 18 April 2002 in the grade of E-4 (senior airman).

They state that HQ AFPC/JA has reviewed this case and determined there are no legal errors requiring corrective action, and have recommended denial of the applicant’s request.  AFPC/DPPPWB defers to their recommendation.  Should the AFBCMR find in the applicant’s favor and reinstate him to active in the grade of staff sergeant, his date of rank would be 1 January 2002.

The evaluation is at Exhibit E.

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APPLICANT'S REVIEW OF AIR FORCE EVALUATION:

The applicant reviewed the evaluation and indicated that he was involuntarily discharged without sufficient evidence.  There is no proof, no physical (urinalysis) or otherwise that any crime was committed.  He was never charged with any wrongdoing.  He was never questioned by OSI; therefore, he does not understand why OSI believes that he allegedly used marijuana.  They were basing their case on vague statements.  Later both statements were recanted.

The fact that he was discharged without a shred of physical evidence means that an error and an injustice have indeed occurred.  He believes in a justice system that states, “An individual is innocent until proven guilty beyond a reasonable doubt.”  It is quite clear that there are several inconsistencies in this case and there is no physical evidence proven by the prosecution.

He states that he has sat by patiently while his life and the lives of his family have been ripped apart by these false statements, in hope that true justice will prevail.  His reputation as a husband, son, father, and also importantly, his status as an airman in the United States Air Force has been ruined.  He earned the rank of SSgt through hard work and a commitment to excellence.  It is obvious that through his EPRs and character letters, he is an outstanding airman and his conduct has always been nothing short of professional.

Applicant’s complete response, with attachment, is at Exhibit G.

On 22 November 2002, the Board staff provided the applicant’s legal counsel (The American Legion) copies of the evaluations.  They reviewed the evaluation and indicated that the applicant has received a multitude of character references from his superiors and co-workers.  These individuals have worked with him directly on a daily basis, in some cases for years.  All of these references do not differ in their praise of the applicant.  The entire case seems to be predicated on the testimony of two questionable individuals.  During the entire time of the discharge proceedings or any time prior this individual has never tested positive on any urinalysis test.

The applicant, prior to these accusations, had been selected for SSgt, further attesting to his character and dedication to the Air Force.  The applicant up to the time of his discharge completed all assignments, requirements, and even additional duties with a positive attitude, even while undergoing this traumatic proceeding.  The evidence against applicant was circumstantial and would not have held up in a court of law especially after both individuals recanted their damaging testimony.  An individual provided testimony alledging applicant’s drug use and subsequently recanted her accusations stating she was trying to create problems for the applicant’s family.  The other witness involved also stated any testimony that he provided was under duress and was false.  How could the testimony of these two individuals, of questionable character, be believed in the first place, when viewed with all of the positive testimony presented on behalf of the applicant?  We trust this Board to ensure that justice does prevail, allowing the applicant to return to the Air Force.  This man has the potential to be an outstanding leader in today’s modern Air Force.  

They support the applicant’s request for complete exoneration and reinstatement to the Air Force, and compensation for loss of wages and benefits.  This is one of those instances where the best intentions and the application of the appropriate rules and regulations has, however unintentional, created a miscarriage of justice.

Counsel’s response is at Exhibit I.

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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 an error or an injustice.  The applicant contends that he was involuntarily separated from the Air Force for allegations of illegal drug use.  He claims that the statements to the OSI in regard to his participating in the use of illegal drugs were false and have since been recanted.  He opposes the decisions of his commander and the separation authority, arguing that they are based upon faulty evidence.  Further, he submits a new statement from one of the witnesses again recanting his statement.  The applicant’s contentions are duly noted; however, the Board is of the opinion that the comments provided by the Staff Judge Advocate are supported by the evidence of record.  In cases such of this nature, we are not inclined to disturb the judgment of commanding officers absent a strong showing of abuse of discretionary authority.  We believe the commander was in the best position to weigh the evidence in the case and judge the applicant’s credibility, as well as that of the statements made in this case, prior to recommending the discharge action.  The applicant has not provided any evidence that the commanders abused their authority when they recommended and subsequently approved the applicant’s discharge.  The new statement has been reviewed, however, as noted by the Staff Judge Advocate, this individual repeats the same claim he made to the applicant’s area defense counsel during the contested time period and which was presented to the commander and separation authority.  Therefore, in our opinion, the new statement provides insufficient evidence to support the applicant’s contentions.  It appears that this individual made these statements after being given immunity to prosecution.  Lastly, we note that the applicant asserts that he was never questioned by the OSI; however, a review of the OSI Report indicates that he was questioned by two OSI agents on 6 August 2001 at the AFOSI Detachment 611.  It was at that time the applicant consented to a search of his bodily fluids.  In view of the totality of the circumstances, the Board believes that the discharge appears to be in compliance with the governing AFI and finds no evidence to indicate that his separation from the Air Force was inappropriate.  Therefore, based on the evidence of record, we find no basis upon which to favorably consider 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 AFBCMR Docket Number 02-02536 in Executive Session on 28 January 2003, under the provisions of AFI 36-2603:

The following documentary evidence was considered:

   Exhibit A.  DD Form 149, dated 25 May 2002, w/atchs.
   Exhibit B.  Applicant's Master Personnel Records.
   Exhibit C.  Letter, AFPC/DPPRS, dated 13 September 2002.
   Exhibit D.  Letter, AFPC/JA, dated 10 October 2002.
   Exhibit E.  Letter, AFPC/DPPPWB, dated 11 October 2002.
   Exhibit F.  Letter, SAF/MRBR, dated 25 October 2002.
   Exhibit G.  Letter, Applicant, 4 November 2002, w/atch.
   Exhibit H.  Letter, AFBCMR, dated 22 November 2002.
   Exhibit I.  Letter, Counsel, dated 13 December 2002.
   Exhibit J.  OSI Report - Withdrawn.