RECORD OF PROCEEDINGS
AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS

IN THE MATTER OF:				DOCKET NUMBER:  BC-2003-01430
							INDEX CODE:  126.04
  XXXXXXXXXXXXXXXXXX			COUNSEL:  XXXXX

  XXX-XX-XXXX					HEARING DESIRED:  YES

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APPLICANT REQUESTS THAT:

His records be corrected to show that (1) he was honorably discharged at the end of his enlistment contract based on satisfactory completion of that contract and with a reenlistment code of RE-1; (2) all records of any nature related to allegations that he used cocaine be removed; (3) he be given credit for time in service from the date of his discharge through the end of his enlistment contract on 26 September 2000; (4) he be awarded back pay, allowances and any other benefits which were denied as a result of his discharge; (5) he be retired from the Air Force based on 20 years of service; and (6) he be reimbursed for all lost retirement pay and benefits from the date of retirement until the date of the Board’s decision.  

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APPLICANT CONTENDS THAT:

His discharge was illegal.  The evidence presented at his discharge board hearing was insufficient to establish that he knowingly used cocaine and because his counsel at the board “failed to emphasize to the panel the possibility that he may have innocently ingested cocaine without his knowledge.”  AFMPC/DPMARS2 committed error by failing to give him notice of the decision to refuse his request for lengthy service probation.  In view of his length of service, military record, and the board findings that he met six of the seven criteria established by the discharge regulation for retention of a member found to have abused drugs, his discharge is unjust

In support of his request, the applicant submits copies of five letters from his attorney in his behalf to the Air Force Board for Correction of Military Records (AFBCMR); a copy of his DD Form 214, Certificate of Release or Discharge from Active Duty; a copy of his administrative discharge board proceedings; a copy of the applicant’s request for lengthy service consideration; three articles concerning cocaine usage; and six character reference letters.  The applicant’s complete submission, with attachments, is at Exhibit A.

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STATEMENT OF FACTS:

On 29 August 1980, the applicant enlisted in the Regular Air Force at the age of 19 in the grade of airman basic for a period of four years.  Following his successful completion of basic military training and technical training the applicant served as a Radio Communications System Craftsman.  The applicant was progressively promoted to the rank of technical sergeant effective and with a date of rank of 1 November 1996.  He received nineteen performance reports between 24 March 1981 and 28 February 1999, with overall ratings of 9, 9, 9, 9, 9, 9, 7, 9, 9, 4, 5, 3, 5, 5, 5, 5, 5, 5, and 5.

On 14 June 1999, the applicant was absent without leave.  Upon his return to duty on 16 July 1999, his commander ordered the applicant to submit to a urinalysis test.  The result of the test was positive for cocaine in a concentration of 2,388 nanograms per milliliter (ng/ml), with the cutoff level for DoD at 100 ng/ml.  

On 9 August 1999, the commander notified the applicant of his recommendation to discharge the applicant for misconduct, specifically drug abuse.  The applicant acknowledged receipt the same day.  On 17 August 1999, the applicant notified the commander of his intent to consult counsel and submit statements in his own behalf.  The applicant also requested an administrative discharge board be convened with enlisted representation.  On 19 August 1999, the commander recommended the applicant’s discharge to the discharge authority.  The administrative discharge board, held 5-7 October 1999, found the applicant subject to discharge because of misconduct (drug abuse) and recommended an honorable discharge.  On 2 December 1999, the applicant requested he be considered for retention/probation and for lengthy service consideration.  On 2 December 1999, the staff judge advocate found the applicant’s discharge to be legally sufficient.  On 3 December 1999, the discharge authority approved the applicant’s discharge.  On 3 April 2000, the Secretary of the Air Force disapproved the applicant’s request for lengthy service probation and ordered the administrative discharge be executed.  On 21 April 2000, the applicant was honorably discharged with a narrative reason for separation as misconduct.  He had served 19 years, 7 months, and 23 days on active duty. 

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AIR FORCE EVALUATION:

AFPC/DPPRS recommends denial.  DPPRS states 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.  It is DPPRS’s opinion that the applicant did not submit any new evidence or identify any errors or injustices that occurred in the discharge process; therefore, the applicant’s request should be denied.  The DPPRS evaluation is at Exhibit C.

AFPC/JA recommends denial.  It is JA’s opinion that the applicant has failed to provide evidence of an error or injustice.  JA states that the evidence presented at the applicant’s discharge board would be sufficient enough to support a finding of guilt at a military court-martial, which requires proof beyond a reasonable doubt.  The finding of the discharge board that the applicant used cocaine is amply support by the evidence of record.  

Concerning the applicant’s claim of ineffective representation, JA comments that the attorneys representing the applicant at his discharge board vigorously contested the urinalysis result.  The fact that they chose a different defense strategy than is now proposed by the applicant’s present counsel does not demonstrate that they committed an error justifying correction of the applicant’s record.  JA states that there may be many reasons that counsel would properly choose not to pursue such a defense.  An innocent ingestion defense would be extremely unlikely to succeed absent testimony - either sworn or unsworn - from the member that he did not use cocaine.  The applicant did not present such testimony at the board, possibly because he was unable to do so.  In his request for retention or probation submitted after the board, the applicant does not explicitly admit to using cocaine use.  Neither does he deny it.  However, his request appears to signify acceptance of responsibility for the alleged misconduct.  

The applicant argues that his discharge after “19 years, 7 months and 23 days of faithful service was a manifest injustice” and that the board findings of six of the seven retention criteria justifies granting his petition.  JA states that the United States Claims Court has defined an injustice, for purposes of 10 United States Code, Section 1552, as “treatment by the military authorities that shocks the sense of justice.”  It is JA’s opinion that the applicant’s discharge, after a military discharge board determined that he used cocaine, does not meet this standard.  The AFPC/JA evaluation is at Exhibit D.

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APPLICANT'S REVIEW OF AIR FORCE EVALUATION:

Copies of the Air Force evaluations were forwarded to the applicant on 11 June 2003 for review and comment (Exhibits E).  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.  Insufficient relevant evidence has been presented to demonstrate the existence of error or injustice.  The applicant requests that his involuntary discharge be changed to a retirement for length of service; all records pertaining to his use of cocaine be expunged from his records; he be awarded all back pay, allowances, and benefits which were denied as a result of his discharge; and he be reimbursed for all lost retirement pay and benefits from the date of retirement to the date of the Board’s decision.  After thoroughly reviewing the evidence of record, we find no evidence to show that the applicant’s discharge based on the findings he had used a controlled substance was erroneous or unjust.  Applicant’s contentions are duly noted; however, we do not find these uncorroborated assertions, in and by themselves, sufficiently persuasive to override the evidence of record or the rationale provided by the Air Force.  It appears that the responsible officials applied appropriate standards in effecting the discharge, and the applicant has not provided persuasive evidence demonstrating that his substantial rights were violated, that the evidence which served as a basis for his separation was erroneous, or that his superiors abused their discretionary authority when it was determined that the recommended discharge should be approved without the offer probation and rehabilitation or lengthy service probation.  In his submission to this Board, he puts forward a new theory in the form of an assertion of the “possibility” of unknowing ingestion.  However, no corroborative evidence in extenuation or explanation accompanies this theory.  While the applicant’s discharge may appear harsh to some, based on the evidence of record, the seriousness of the offense for which the applicant was discharged, and the well-publicized consequences of drug use by military members, we do not find the decision to discharge the applicant was unjust.  Therefore, we agree with the recommendations of the Air Force and adopt the rationale expressed as the basis for our decision that the applicant has failed to sustain his burden that he has suffered either an error or an injustice.  In view of the foregoing, we conclude that no basis exists to recommend granting the relief sought in 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 this application in Executive Session on 23 July 2003, under the provisions of AFI 36‑2603:

	Panel Chair
	Member
	Member

The following documentary evidence for AFBCMR Docket Number BC-2003-01430 was considered:

	Exhibit A.  DD Form 149, dated 16 Apr 03, with attachments.
	Exhibit B.  Applicant's Master Personnel Records.
	Exhibit C.  Letter, AFPC/DPPRS, dated 23 May 03.
	Exhibit D.  Letter, AFPC/JA, dated 9 Jun 03.
	Exhibit E.  Letter, SAF/MRBR, dated 11 Jun 03.

						
									Panel Chair