RECORD OF PROCEEDINGS
AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS

IN THE MATTER OF:				DOCKET NUMBER:  BC-2003-00576
							INDEX CODE:  126.04
  XXXXXXXXXXX			          COUNSEL:  None

  XX-XX-XXXX				HEARING DESIRED:  NO

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APPLICANT REQUESTS THAT:

The nonjudicial punishment imposed on him on 2 July 2002 under Article 15, Uniform Code of Military Justice (UCMJ), be set aside; and, his grade of technical sergeant and his line number and subsequent promotion to master sergeant be restored. 
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APPLICANT CONTENDS THAT:

He was found innocent of the charges brought against him.  He never used cocaine, he knows no one who does use drugs, and he has never been around anyone using drugs.  The discharge board heard all the evidence and they were convinced that he did not use cocaine; therefore, all punishments brought against him should be removed.  

In support of his request, the applicant submits a personal statement and copies of his Article 15; a legal review of the Administrative Discharge Board Findings and Recommendations; his commander’s letter for retention in the Air Force; a supporting letter from his Area Defense Counsel to set aside the applicant’s Article 15, his request to set aside the Article 15 and his commander’s denial of his request; his Area Defense Counsel’s letter supporting his reenlistment, with attachment; and his wing commander’s approval for reinstatement of his reenlistment status.  The applicant’s complete submission, with attachments, is at Exhibit A.

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STATEMENT OF FACTS:

The Military Personnel Database (MilPDS) indicates the applicant has a Total Active Federal Military Service Date of 16 January 1985.  He has continually served on active duty and, prior to the events under review, was progressively promoted to the grade of technical sergeant (E-6).  The applicant was selected for promotion to master sergeant (MSgt) during cycle 02E7 (promotions effective August 2002 - July 2003).  His promotion sequence number would have incremented on 1 October 2002.  The applicant is currently serving in the grade of staff sergeant.  His date of separation is 20 February 2005 and he has a High Year of Tenure date of 16 January 2005.  The following is a resume of his Enlisted Performance Reports (EPRs), commencing with the report closing 30 August 1993.

	PERIOD ENDING				PROMOTION RECOMMENDATION

	 30 Aug 1993						  5
	 30 Aug 1994						  5
	 30 Aug 1995						  5
	 30 Aug 1996						  5
	 30 Aug 1997						  5
	 30 Aug 1998						  5
	 30 Aug 1999						  5
	 30 Aug 2000						  5
	 30 Aug 2001						  5
	 30 Aug 2002						  2

On 20 May 2002, the applicant submitted a urine specimen for testing.  His commander was subsequently notified that the specimen tested positive for cocaine at 126 nanograms (ng) per milliliter (ml) (the DoD cutoff level is 100 ng/ml).  Based on this information, on 20 June 2002, the commander notified the applicant he was considering the imposition of nonjudicial punishment on the applicant under Article 15, UCMJ.  The applicant was advised of his rights.  On 27 June 2002, after consulting military defense counsel, the applicant waived his right to demand a trial by court-martial and accepted the nonjudicial proceedings.  He submitted a written presentation to, and elected not to make a personal appearance before, his commander.  On 2 July 2002, after considering the matters presented by the applicant, the commander determined he had committed one or more of the offenses alleged and imposed nonjudicial punishment on the applicant.  His punishment consisted of reduction in grade to staff sergeant with a new date of rank (DOR) of 2 July 2002 and a reprimand.  On 8 July 2002, the applicant chose not to appeal the punishment.  

On 30 August 2002, the applicant’s commander notified the applicant that he was recommending the applicant be discharged for drug abuse.  On 1 October 2002, a discharge board considered the applicant’s case and determined he had not used cocaine and found no basis for his discharge.  The board’s actions were found to be legally sufficient.  On 3 October 2002, the applicant asked his commander to set aside his Article 15.  The commander denied the request.  On 3 December 2002, the applicant’s commander non-selected the applicant for reenlistment.  He appealed this determination and, on 27 January 2003, his appeal was approved and his reenlistment status was reinstated. 

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AIR FORCE EVALUATION:

AFLSA/JAJM recommends denial.  It is JAJM’s opinion that when the applicant elected to resolve the allegation in the nonjudicial forum, he placed the responsibility to decide whether he had committed the offense with his commander.  Likewise, the commander was given the responsibility to determine an appropriate punishment if the commander found the applicant had committed the offense.  After the commander had weighed all the evidence, he resolved the issue of the alleged misconduct against the applicant.  The applicant did not appeal the nonjudicial punishment action.  

JAJM states a discharge board is not a court.  There is no military judge and military rules of evidence do not apply.  The discharge board’s sole purpose is purely administrative.  JAJM states they find nothing in the applicant’s submission which would cause them to doubt the validity of the positive cocaine result.  The fact that the discharge board came to a different conclusion does not make the commander’s determination wrong, nor does it constitute an error or injustice.

The AFLSA/JAJM evaluation is at Exhibit C.

AFPC/DPPPWB defers to JAJM’s recommendation regarding the removal of the Article 15.  DPPPWB indicated that, according to AFI 36-2502, Table 1.1, Rule 19, the applicant’s reduction in grade automatically rendered him ineligible for promotion to master sergeant.  If the Board believes there was an injustice and sets aside the Article 15 requested by the applicant, he would be entitled to promotion to MSgt effective 1 October 2002, provided he is otherwise qualified and recommended by his commander.  The AFPC/DPPPWB evaluation is at Exhibit D.

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APPLICANT'S REVIEW OF AIR FORCE EVALUATION:

The applicant states that he not only accepted the Article 15 because his lawyer advised him to do so, but because he lacked evidence to prove his innocence.  He also accepted the Article 15 because of the time constraints placed on him by the system.  There was not enough time to gather evidence in his defense prior to making this decision.  He felt his decision was in the best interest of his family and himself.  Risking a felony conviction by court-martial, a dishonorable discharge, and possible jail time did not make sense when the Article 15 forum was offered.  He was also advised by his lawyer not to make any statements or make a personal appearance before his commander.  

He has served honorably for over 18 years.  His performance reports and medals attest to his service.  He believes he is a victim of a system that has not only cost him over $20,000 in pay and benefits, but his reputation and dignity also.  The applicant’s rebuttal is at Exhibit F. 

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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 injustice warranting corrective action.  After reviewing the evidence presented, the Board majority is of the opinion that approval of the requested relief is appropriate.  The Board majority notes the decision of the administrative discharge board that the applicant had not used cocaine and that there was no basis for his discharge.  The Board majority also notes the decision of the wing commander to allow the applicant to reenlist, reversing the decision of the applicant’s commander.  In light of the above and the evidence presented by the applicant in the form of the concessions contained in the testimony of Drug Testing Laboratory personnel, the Board majority believes substantial doubt exists as to the propriety of the imposition of Article 15 punishment in this case and that this doubt should be resolved in the applicant’s favor.  It is the majority’s opinion that the punishment should be removed from his records and his rank of technical sergeant and subsequent selection for and promotion to master sergeant be restored.  Therefore, his records should be corrected as indicated below.

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THE BOARD DETERMINES THAT:

The pertinent military records of the Department of the Air Force relating to APPLICANT be corrected to show that;

	a.  The nonjudicial punishment under the provision of Article 15, Uniform Code of Military Justice, initiated on 20 June 2002 and imposed on 2 July 2002, be declared void and expunged from his records, and all rights, privileges and property of which he may have been deprived be restored.

	b.  He was promoted to the grade of master sergeant, effective and with a date of rank of 1 October 2002.

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The following members of the Board considered this application in Executive Session on 25 June 2003, under the provisions of AFI 36-2603:

	Panel Chair
	Member
	Member

XXXXX and XXXXX voted to correct the records, as recommended.  XXXXX voted to deny the applicant’s request and elected not to submit a minority report.  The following documentary evidence was considered in connection with AFBCMR Docket No. BC-2003-00576:

	Exhibit A.  DD Form 149, dated 11 Feb 03, with attachments.
	Exhibit B.  Applicant's Master Personnel Records.
	Exhibit C.  Letter, AFLSA/JAJM, dated 28 Mar 03. 
	Exhibit D.  Letter, AFPC/DPPPWB, dated 17 Apr 03. 
	Exhibit E.  Letter, SAF/MRBR, dated 2 May 03. 
	Exhibit F.  Applicant’s rebuttal, dated 22 May 03. 

									
									Panel Chair

AFBCMR BC-2003-00576

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 XXXXX , be corrected to show that:

		a.  The nonjudicial punishment under the provision of Article 15, Uniform Code of Military Justice, initiated on 20 June 2002 and imposed on 2 July 2002, be, and hereby is, declared void and expunged from his records, and all rights, privileges and property of which he may have been deprived be restored.

		b.  He was promoted to the grade of master sergeant (E-7), effective and with a date of rank of 1 October 2002.

                                                                            
                                                                            Director
                                                                            Air Force Review Boards Agency