RECORD OF PROCEEDINGS
AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS

IN THE MATTER OF:	DOCKET NUMBERS:  BC-2002-03329
		INDEX CODE 126.01
	 	COUNSEL:  None

	 	HEARING DESIRED:  No

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APPLICANT REQUESTS THAT:

The Article 15 imposed on him on 10 Apr 02 be removed from his records.

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APPLICANT CONTENDS THAT:

He did not witness and had no knowledge of any drug abuse by other military members. There is no Air Force Instruction that states airmen are obligated to report such activity. Case law indicates that NCOs are obligated to report drug use by other military members because of their status as NCOs. Since he was an airman first class at the time, he was not derelict. However, if he had witnessed the drug purchase or use by other military members he would have reported it immediately.  

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

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STATEMENT OF FACTS:

The following information was extracted from the applicant’s submission, his military records, and the Air Force Office of Special Investigation (AFOSI) Report of Investigation (ROI) dated 21 May 02.

The applicant enlisted in the Regular Air Force on 16 Jun 99. During the period in question he was an airman first class assigned as an assistant dedicated crew chief with the 22nd Fighter Squadron (22 FS) and then as a support specialist with the 52nd Aircraft Maintenance Squadron (52 AMS) at Spangdahlem AB, Germany.

His performance reports reflect the following:

		PERIOD ENDING			OVERALL EVALUATION
		  15 Jan 01				4
		  15 Jan 02				3
		  15 Jan 03				3 (Referral)

Three airmen were under investigation by the AFOSI for use, possession and distribution of controlled substances. In the course of the inquiry, the applicant was alleged to have smoked marijuana with the other three airmen around 5 Oct 01. On 27 Nov 01, the applicant was interviewed and, after being advised of his rights, he provided a sworn statement. He stated he and the three airmen had been partying and he fell asleep in the car while they drove to a “coffee shop” (an establishment that sells controlled substances) in Maastricht, The Netherlands. After waking up, he joined the three airmen in the shop. He indicated the three airmen might have been smoking marijuana because their eyes were bloodshot, but he did not actually see controlled substances or anyone smoke marijuana. He stated that one of the airmen did offer him a “hit” off of a “bowl,” but he declined and departed shortly afterwards to get something to eat. 

The applicant apparently had been selected for promotion to the grade of senior airman (SRA); however, his promotion was withheld pending investigation.

When making a personal appearance before the commander on 14 Mar 02 pending Article 15 actions for wrongful use of a controlled substance, one of the airmen indicated the applicant was with them on 5 Oct 01 when they went to the Maastricht “coffee shop.” The individual did not implicate the applicant in using drugs or witnessing drug abuse. 

The applicant became the subject of an AFOSI investigation beginning on 23 Apr 02. He denied using controlled substances and, after further questioning, requested legal counsel. The interview was terminated. The applicant consented to a search of his residence and vehicle that same day, but no items of evidence were seized.  He also provided a urine sample, which later (17 May 02) tested negative for the presence of controlled substances.

On 27 Mar 02, applicant was notified of his commander's intent to impose nonjudicial punishment upon him for the following: failing to report drug abuse by other military members at Maastricht between, on, or about 20 Sep 01 and 10 Oct 01; and using his government travel card (GTC) for unofficial purposes at Owens Cross, AL, on 3 Nov 01, at Huntsville, AL, between 4 and 14 Nov 01, and at Trier, Germany, on 9 Dec 01.  On 4 Apr 02, after consulting with counsel, the applicant waived his right to a trial by court-martial, requested a personal appearance, and submitted a written presentation. He explained the circumstances surrounding his use of the GTC and indicated he had not seen illegal drug use by the other airmen. On 10 Apr 02, his commander found him guilty and imposed the following punishment: suspended reduction from airman first class to airman until 9 Oct 02, forfeiture of $100.00 pay per month for two months, restricted to Spangdahlem AB limits for 14 days, and 14 days extra duty. The 
applicant’s appeal was denied on 17 Apr 02.  The Article 15 was found legally sufficient on 23 Apr 02 and filed in the applicant’s Unfavorable Information File (UIF).

On 3 Feb 03, the Enlisted Performance Report (EPR) for the period 16 Jan 02 through 15 Jan 03 was referred to the applicant.  His On/Off Duty Conduct was marked unacceptable and the overall rating was “3.” The rater commented that the applicant showed extremely poor judgment/professionalism and received an Article 15 for GTC misuse. The applicant acknowledged receipt but did not provide comments.

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AIR FORCE EVALUATION:

AFLSA/JAJM notes one of the applicant’s arguments has merit: since he was not a non-commissioned officer, he did not have a duty to report drug use. For that reason, the applicant’s record should be corrected by setting aside that specification only. The applicant’s contentions leave out the important fact that three of the four violations involve misuse of the GTC.  He does not deny he used the card for unofficial purposes and he provides no evidence of an error or injustice relating to his commander’s decision to impose punishment. The commander’s decision to impose nonjudicial punishment in this situation was appropriate, but the punishment was outside the commander’s authority. Based on the commander’s grade, the maximum amount of forfeitures she could impose was seven days pay over one month. At the reduced grade of airman, the commander could impose a forfeiture of no more than approximately $289.00. Instead, she imposed a forfeiture of $100.00 per month for two months, totaling $200.00. Although the total dollar amount the applicant forfeited was less than the maximum the commander could impose, it was in error because it spanned more than one month. However, AFLSA/JAJM finds this error harmless and recommends no corrective action be taken in this regard. AFLSA/JAJM suggests the Article 15 be corrected to delete the first specification but not set aside.

A complete copy of the evaluation is at Exhibit C.

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APPLICANT'S REVIEW OF AIR FORCE EVALUATION:

A complete copy of the Air Force evaluation was forwarded to the applicant on 7 Mar 03 for review and comment within 30 days.  As of this date, this office has received no response.

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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.	Sufficient relevant evidence has been presented to demonstrate the existence of an error or injustice warranting partial relief.  The applicant’s argument that he did not have a duty to report drug use has merit.  AFLSA/JAJM advised they found no law, regulation or custom establishing a duty for an airman first class to report drug abuse by other military members. Further, the applicant did not indicate he actually saw, or knew for certain, that the other airmen had used illegal substances. While we agree this specification of the Article 15 should be removed, the applicant has not established he was innocent of the charges of misuse of his GTC. Since these specifications remain valid, we do not believe the Article 15 should be voided in its entirety as he requests. We also note AFLSA/JAJM contends the portion of the punishment pertaining to forfeiture, while outside the commander’s authority, is a harmless error and should not be corrected. We disagree. Based on the commander’s grade, the maximum amount of forfeitures she could impose was seven days pay over one month. While the total amount the applicant forfeited was less than the maximum the commander could impose, it spanned two months. The commander might have properly fined the applicant $200 for the month, but did not. The forfeiture was improper as actually applied and must be corrected. We recommend the Article 15 be amended by voiding the specification pertaining to reporting drug use by other military members and reducing the forfeiture of $100.00 pay per month for two months to $100.00 pay for one month.

4.	Although the applicant did not raise the issue, the Article 15 apparently caused the 15 Jan 03 EPR to be rendered as a referral report. Had we determined the Article 15 should be voided entirely, we also would have recommended the referral report be voided as its comments refer to and were driven by the nonjudicial punishment. We recommended that the specification pertaining to reporting drug use by others be voided. The EPR does not refer to this allegation but only to the applicant’s misuse of his GTC, which remain valid specifications in the Article 15. Because there is no evidence before us that the EPR would have been different without the first specification in the Article 15, we see no reason to recommend a change to the 15 Jan 03 EPR..

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THE BOARD RECOMMENDS THAT:

The pertinent military records of the Department of the Air Force relating to APPLICANT be corrected to show that the Article 15, imposed on him on 10 April 2002 under the provisions of the Uniform Code of Military Justice, be amended as follows:

		a. The specification pertaining to his dereliction of duty in negligently failing to report drug abuse by other military members between, on, or about 20 September and on or about 10 October 2001 at or near Maastrict, The Netherlands, be declared void. 

		b. The portion of the punishment pertaining to forfeiture be changed from $100.00 pay per month for two months to $100.00 pay for one month.

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The following members of the Board considered this application in Executive Session on 1 May 2003 under the provisions of AFI 36-2603:

The following documentary evidence relating to AFBCMR Docket Number BC-2002-03329 was considered:

   Exhibit A.  DD Form 149, dated 27 Sep 02, w/atchs.
   Exhibit B.  Applicant's Master Personnel Records.
   Exhibit C.  Letter, AFLSA/JAJM, dated 19 Feb 03.
   Exhibit D.  Letter, SAF/MRBR, dated 7 Mar 03.

AFBCMR BC-2002-03329

MEMORANDUM FOR THE CHIEF OF STAFF

	Having received and considered the recommendation of the Air Force Board for Correction of Military Records and under the authority of Section 1552, Title 10, United States Code (70A Stat 116), it is directed that:

	The pertinent military records of the Department of the Air Force relating to   be corrected to show that the Article 15, imposed on him on 10 April 2002 under the provisions of the Uniform Code of Military Justice, be amended as follows:

	      a.  The specification pertaining to his dereliction of duty in negligently failing to report drug abuse by other military members between, on, or about 20 September and on or about 10 October 2001 at or near Maastrict, The Netherlands, be, and hereby is, declared void. 

	      b. The portion of the punishment pertaining to forfeiture be, and hereby is, changed from $100.00 pay per month for two months to $100.00 pay for one month.