RECORD OF PROCEEDINGS
         AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS

IN THE MATTER OF:	DOCKET NUMBER:  BC-2003-00940
		INDEX CODE:  110.00

	XXXXXXXXXXXXXXXXXX	COUNSEL:  XXXXX

		HEARING DESIRED: YES

MANDATORY CASE COMPLETION DATE:  17 MAY 2007

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APPLICANT REQUESTS THAT:

Her administrative discharge action be set aside and she be reinstated in the Air Force Reserve so she can be afforded an opportunity to retire with 20 years of service, to include back pay and allowances; in the alterative she be credited with 20 years of service and transferred to the Retired Reserve.

Examiner’s Note:  Applicant’s case file was originally submitted on 10 Mar 03, and at her counsel’s request was temporarily withdrawn on 30 Jun 03.  

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APPLICANT CONTENDS THAT:

Through her counsel, she contends that, while a technical sergeant in the US Air Force Reserve (USAFR), with just less than 19 years of satisfactory service; she was ostensibly ordered to be separated with an under other than honorable discharge due to a positive urinalysis test result.  Based on the improper handling of the discharge board action and her lengthy career, she believes it was an error and an injustice for her to be administratively separated in that manner.  

Prior to her discharge, applicant had been noted throughout her career as an outstanding military member and performed her duties in a highly outstanding and effective manner.  She served as an Administrative Specialist, Billeting Clerk, Spanish/Linguist Interpreter, and as an Information Management Specialist.

She was randomly selected for urinalysis testing and provided a urine sample.  The government contended that her urine sample was positive for the metabolite for marijuana.  She requested to retest, but it was not permitted.  At her discharge board, she was afforded minimal due process, compared to what she would have been entitled to if she had faced a court-martial for the same allegation.  In essence, she states the board was improperly instructed regarding the burden of proof, the elements of wrongful use of marijuana and the definitions needed to determine those elements.

In support of her appeal, applicant submitted a statement through her counsel; a copy of her discharge correspondence; extracts from her military records consisting of performance reports, service credit history, awards/decorations, along with associated enlistment/separation documents; a copy of her discharge board record of proceedings, and other supporting documents.

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

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STATEMENT OF FACTS:

Prior to the events under review, applicant enlisted in the US Army on 13 Feb 76, she served honorably in the US Army and Army Reserve until her discharge on 11 Sep 85.  On 12 Sep 85, she enlisted in the USAFR for a period of six years in the grade of staff sergeant.  On 17 Aug 91, she reenlisted for a period of six years and was discharged on 6 Jun 97.  She entered her last enlistment on 7 Jun 97 for a period of six years.  She was promoted to the grade of technical sergeant with an effective date and date of rank of 1 Nov 98.

On 5 Mar 99, the squadron commander recommended administrative discharge action against the applicant for misconduct, drug abuse.  The basis for the proposed discharge action was that: 

	On or about (o/a) 6 Jan 99 and o/a 6 Feb 99, applicant wrongfully used a controlled substance, marijuana.

Before recommending discharge, the squadron commander read the applicant her rights and questioned her about the positive urinalysis test results and although she did not request counsel, she did request to take another urinalysis test.  Based on the serious nature of the misconduct, he recommended her service be characterized as under other than honorable conditions (UOTHC).  On 7 Mar 99, the Staff Judge Advocate found the case to be legally sufficient to support discharge and recommended her discharge be characterized as UOTHC.  

By letter, dated 12 Apr 99, HQ AFRC/DPM forwarded the applicant the Notification of Initiation of Separation Action under AFI 36-3209 to her address.  They advised her of her rights to submit statements in her own behalf and of an administrative discharge board.  On 20 Apr 99, applicant acknowledged receipt of the discharge notification and elected to have her case heard by an administrative discharge board, with a personal appearance, and that she be represented by military counsel.  A discharge board was convened on 13 Sep 99, the applicant was present at the board hearing and represented by military counsel.  The board found the applicant was subject to discharge for drug abuse and recommended she be discharged with a UOTHC service characterization.

On 20 Dec 99, the Secretary of the Air Force Personnel Council directed the approved administrative discharge be executed and denied Lengthy Service Probation (LSP).  At the time of the initiation of the administrative discharge action, she was credited with 18 years, 11 months, and 8 days of satisfactory federal service, including 6 years, 7 months, and 23 days as active duty service.  On 22 Jan 00, applicant was discharged from the Air Force Reserve, by reason of misconduct, commission of a serious offense, drug abuse, with service characterized as under other than honorable conditions.  

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AIR FORCE EVALUATION:

HQ AFRC/JA reviewed this application and recommended denial.  They found the original action legally sufficient.  

The applicant sets out two reasons for granting her relief: (1) that the discharge board was improperly instructed regarding the burden of proof, the elements of wrongful use of marijuana and the definitions necessary to properly determine those elements; and (2) that the evidence was insufficient to prove the applicant had wrongfully and knowingly used marijuana.  She argues that the same instructions that would be given in a court-martial for drug abuse… where the government’s burden of proof is the “beyond a reasonable doubt: standard… should be applied in an administrative proceeding, where the burden is a lower threshold of “preponderance of the evidence.”  The applicant’s argument is without merit and not supported by competent legal authority.  The legal advisor gave the appropriate instructions to the board members.

The applicant further argues there was insufficient evidence to prove she wrongfully and knowingly used marijuana.  Once again, the applicant seeks to equate a discharge board proceeding with a criminal trial, where the burden of proof is different.  A preponderance of the evidence, as established by the positive urinalysis, proved the applicant wrongfully used marijuana.  The members were properly instructed regarding “wrongfulness,” and were given the so-called, “Good Airman” instruction, which reads in pertinent part as follows: “Evidence of the respondent’s character for honesty and truthfulness may be sufficient to cause doubt as to the wrongfulness of her act.  On the other hand, other evidence tending to show the wrongfulness of her act may outweigh evidence of the respondent’s good character for honesty and truthfulness.  There was no error.

The HQ AFRC/JA complete evaluation is at Exhibit C.

HQ AFRC/DPZ also recommended denial.  Additionally, they noted that contrary to the applicant’s claim she is not entitled to receive a DD Form 214 for her service immediately preceding her discharge.  A DD Form 214 is authorized only when a member serves in an active duty status for 90 continuous days prior to their release from active duty status.

The HQ AFRC/DPZ complete evaluation is at Exhibit D.

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APPLICANT'S REVIEW OF AIR FORCE EVALUATION:

By DD Form 149, dated 5 Oct 05, and by letter, through counsel, dated 3 Nov 05, she reiterated her original contentions that the discharge board was improperly instructed regarding the burden of proof, the elements of wrongful use of marijuana and the definition needed to determine those elements.

Applicant’s complete response, with attachments, 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 not timely filed; however, it is in the interest of justice to excuse the failure to timely file.

3.  Insufficient relevant evidence has been presented to demonstrate the existence of an error or injustice.  We took notice of the applicant's complete submission in judging the merits of the case to include her contention that the discharge board was improperly instructed regarding the burden of proof, the elements of wrongful use of marijuana and the definitions needed to determine those elements; however, we agree with the opinions and recommendations of AFRC/JA and AFRC/DPZ and adopt their rationale as the basis for our conclusion the applicant has not been the victim of an error or injustice.  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 AFBCMR Docket Number BC-2003-00940 in Executive Session on 1 August 2006, under the provisions of AFI 36-2603:

	Panel Chair
	Member
	Member

The following documentary evidence was considered:

    Exhibit A.  DD Form 149, dated 5 Mar 03, w/atchs. 
    Exhibit B.  Applicant's Master Personnel Records.
    Exhibit C.  Letter, HQ AFRC/JA, dated 19 May 03.
    Exhibit D.  Letter, HQ AFRC/DPZ, dated 21 May 03.
    Exhibit E.  Letter, SAF/MRBR, dated 4 Jun 03.
    Exhibit F.  Letter, SAF/MRBC, dated 9 Jul 03.
    Exhibit G.  Counsel’s Response, dated 5 Oct 05, w/atchs.

                                   
                                   Panel Chair