RECORD OF PROCEEDINGS
         AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS

IN THE MATTER OF:	DOCKET NUMBER:  BC-2003-00692
		INDEX NUMBER:  126.00
	XXXXXXXXXXXXXX	COUNSEL:  None

	XXX-XX-XXXX	HEARING DESIRED:  Yes

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APPLICANT REQUESTS THAT:

The Article 15 imposed on him on 31 Oct 02 be set aside and all rights and properties of which he was deprived be restored.

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APPLICANT CONTENDS THAT:

He was given an Article 15 for wrongfully using marijuana.  However, he later obtained evidence in the form of a sworn statement that proved that he did not know that marijuana was present in a cigar that he inhaled from.  When his commander attempted to discharge him for the Article 15 for marijuana use, he elected to make his case before an Administrative Discharge Board.  The Administrative Discharge Board determined that he had not wrongfully used marijuana and retained him in service.  Despite his evidence that he had not wrongfully used marijuana, his commander refused to set aside the Article 15.

In support of his appeal, the applicant provides a statement from his military counsel, copies of his military records, and character references.

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

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STATEMENT OF FACTS:

The applicant enlisted in the Air Force on 23 Sep 98.  He was promoted up to the grade of senior airman (SrA) (E-4).  He was selected for promotion to staff sergeant (SSgt) (E-5) during cycle 02E5 and was scheduled to pin on his promotion on 1 Feb 03.  However, on 21 Oct 02, the applicant was offered proceedings under Article 15 by his commander for an alleged violation of Article 112a of the Uniform Code of Military Justice (UCMJ) for the wrongful use of marijuana.  On 28 Oct 02, the applicant accepted proceedings under Article 15 and attached a written presentation.  On 31 Oct 02, the applicant’s commander determined that he had committed the alleged offense.  He imposed punishment consisting of reduction to the grade of airman (E-2).  On 4 Nov 02, the applicant appealed the punishment.  The appellate authority denied the applicant’s appeal.  

A resume of the applicant’s enlisted performance reports follow:

	Closeout Date			Overall Rating

	  15 Apr 00				5
	  15 Apr 01				5
	  15 Apr 02				5
	 *15 Apr 03				3

*  Report rendered after Article 15

On 15 Nov 02, the applicant’s commander notified him that he was recommending his discharge from service for drug abuse.  The applicant elected to have his case considered by an Administrative Discharge Board.  On 16 Nov 02, a board of officers were convened.  The board determined that the applicant had not wrongfully used marijuana and found no basis for his discharge.

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AIR FORCE EVALUATION:

AFLSA/JAJM recommends denial of the applicant’s request to set aside his Article 15.  The fact that the discharge board came to a different conclusion does not make the commander’s determination wrong.  Fact finders might have access to different information, or come to different conclusions after reviewing the same information.  They find nothing in the applicant’s submissions, which would cause them to doubt the validity of the positive marijuana result.  Moreover, a discharge board is not a court.  There is no military judge and military rules of evidence do not apply.  Its purpose is purely administrative.  The fact that the discharge board reached a different conclusion than the commander does not constitute an error or injustice.

The complete evaluation is at Exhibit C.

AFPC/DPPPWB defers to the recommendation of AFLSA/JAJM.  They provide information regarding the applicant’s previous selection for promotion to SSgt.  The applicant had been selected for promotion to SSgt and scheduled to pin on his promotion on 1 Feb 03.  When the applicant received the Article 15, he was rendered ineligible for promotion.  If his Article 15 is set aside, he will be entitled for promotion to SSgt effective 1 Feb 03.

The complete evaluation is at Exhibit D.

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APPLICANT'S REVIEW OF AIR FORCE EVALUATION:

The applicant responded to the Air Force evaluations by explaining why the Article 15 he received constitutes an injustice.  He feels that he is at a disadvantage because the same office that convicts is the one making the recommendation not to grant his request.  The applicant explains why he chose to accept proceedings under Article 15 rather than demand trial by court-martial.  He asserts that the individual that provided the statement that proved he did not wrongfully use marijuana was interviewed by his first sergeant, military counsel, and a Security Forces investigator and found to be a credible witness.

The applicant’s complete response is at Exhibit F.

The applicant’s military counsel also submitted a statement in his behalf.  He explains the sequence of events leading to their obtaining a sworn statement from the individual that placed marijuana in a cigar.  He indicates that during the applicant’s discharge hearing, the legal advisor commented on how credible both the applicant and the individual providing the statement were on the stand under oath.  He states that there was also an expert witness at the discharge hearing that demonstrated that the urinalysis results were not inconsistent with the facts as presented by the applicant.  He opines that the discovery of additional evidence since the Article 15 was imposed and the commander’s refusal to set aside the Article 15 after the Administrative Discharge Board’s decision are grounds for the AFBCMR to grant the applicant relief.

The complete submission is at Exhibit G.

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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.  We took notice of the applicant's complete submission in judging the merits of the case; however, we agree with the opinions and recommendations of the Air Force offices of primary responsibility and adopt their rationale as the primary basis for our conclusion that the applicant has not been the victim of an error or injustice.  The crux of the applicant’s argument appears to be that since the Administrative Discharge Board reached a different conclusion regarding his alleged marijuana use than his commander, his commander’s refusal to set aside the Article 15 constitutes an error or injustice.  We disagree.  The Administrative Discharge Board was not conducted as a further part or appeal of the Article 15 proceedings the applicant had willingly agreed to.  Rather, it was based on his entitlement to a board action due to his commander’s desire to discharge him for what he considered illegal use of marijuana.  We do not believe that it logically follows that the commander is bound to bring his actions in line with the Administrative Discharge Board.  In fact, one might ask, what argument might the applicant make regarding the Article 15 had the commander not pursued discharge action against him?  We believe the applicant has benefited from the protections built into the discharge process and has been afforded the opportunity to salvage his Air Force career.  Therefore, in the absence of evidence to the contrary, we find no compelling basis to recommend granting the relief sought in this application.

4.  The applicant's case is adequately documented and it has not been shown that a personal appearance with or without counsel will materially add to our understanding of the issues involved.  Therefore, the request for a hearing is not favorably considered.

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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 Docket Number BC-2003-00692 in Executive Session on 6 October 2003, under the provisions of AFI 36-2603:

	Panel Chair
	Member
	Member

The following documentary evidence was considered:

    Exhibit A.  DD Form 149, dated 4 Feb 03, w/atchs.
    Exhibit B.  Applicant's Master Personnel Records.
    Exhibit C.  Memorandum, AFLSA/JAJM, dated 2 Apr 03.
    Exhibit D.  Memorandum, AFPC/DPPPWB, dated 22 Apr 03.
    Exhibit E.  Letter, SAF/MRBR, dated 9 May 03.
    Exhibit F.  Memorandum, Applicant, dated 2 Jun 03.
    Exhibit G.  Memorandum, USAF Trial Judiciary/ADC,
                dated 2 Jun 03.

                                   
                                   Panel Chair