RECORD OF PROCEEDINGS
AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS

IN THE MATTER OF:	DOCKET NUMBER: BC-2003-01735

	 	COUNSEL:  
	 	HEARING DESIRED:  YES

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APPLICANT REQUESTS THAT:

1.	Vacation of the nonjudicial punishment (i.e., reduction to the grade of E-5 and reprimand) imposed on 12 June 2000, under Article 15 of the Uniform Code of Military Justice (UCMJ).

2.	Vacation of the findings of the Administrative Discharge Board (ADB).

4.	He be promoted to the grade of master sergeant (E-7) effective 1 October 2000.

5.	All references to his marijuana use be removed from his records.

6.	He receive all back pay and allowances as a result of the correction to his records.

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THE APPLICANT CONTENDS THAT:

The ADB incorrectly found that he had wrongfully used marijuana despite uncontradicted evidence that he consumed Nutiva food bars without the knowledge that they contained hemp seed products or would cause him to test positive for marijuana.

He never knowing ingested marijuana, but rather had eaten Nutiva bars that contained hemp seed.  There is nothing in his records to indicate that he knowing ingested marijuana.  Prior to the nonjudicial punishment proceedings, he was unaware that the food he had consumed contained hemp seed and would cause his urinalysis sample to test positive for marijuana.  When this evidence was presented to the ADB, they determined he was worthy of further service in the Air Force.  Although the law permits the drawing on an inference as to wrongful use of drugs, that inference should only be drawn in the absence of evidence to the contrary.

In support of the appeal, the applicant submits extracts from his military records and information regarding Nutiva Health Bars.

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

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STATEMENT OF FACTS:

The applicant contracted his enlistment in the Regular Air Force on 21 September 1981.  He was progressively promoted to the grade of technical sergeant.

He was selected for promotion to the grade of master sergeant during cycle 00E7, with a Promotion Sequence Number (PSN) that would be incremented on 1 September 2000.

On 9 May 2000, he provided a urine sample during a random urinalysis test that tested positive for marijuana.

On 12 June 2000, the commander notified him of his intent to impose nonjudicial punishment under Article 15 of the Uniform Code of Military Justice (UCMJ) for wrongfully using marijuana.  After consulting legal counsel, the applicant waived his right to a trial by court-martial and accepted the nonjudicial punishment.  After considering his oral and written submissions, on 12 June 2000, the commander determined that he did commit the alleged offense and imposed punishment consisting of reduction to the grade of staff sergeant and a reprimand. He appealed the punishment; however, his appeal was denied.

On 11 July 2000, the commander notified him of his intent to initiate administrative discharge action against him for misconduct due to drug abuse.  An Administrative Discharge Board (ADB) convened on 7 September 2000 and based on the finding that he did commit drug abuse on an experimental basis and since it was not likely to occur again, recommened he be retained in the Air Force.

On 18 January 2001, the Secretary of the Air Force Personnel Council found that he did not serve satisfactorily in any higher grade and that he would not be advanced on the retired list.

He retired on 1 October 2001, in the grade of staff sergeant for length of service.

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AIR FORCE EVALUATIONS:

AFLSA/JAJM recommends the application be denied and states, in part, that counsel’s contentions are without merit.  During the nonjudicial punishment proceedings the applicant contended that his positive test result for marijuana was the result of his exposure to marijuana smoke while in the company of his brothers.  However, during the ADB he contended that his positive test result was the result of ingesting Nutiva food bars that contained hemp seed, the consumption of which could result in a positive test result for marijuana.  Neither his commander nor the ADB were required to believe either defense.  The positive urinalysis result and forensic toxicologist testimony are ample proof he committed the offense of wrongful use of marijuana.  He has not shown that passive inhalation of marijuana, or eating Nutiva bars, or both, would result in a urinalysis result of over twice the Department of Defense cut-off level for marijuana.  

The AFLSA/JAJM evaluation is at Exhibit C.

AFPC/DPPPWB defers to the recommendation of AFLSA/JAJM.  AFPC/DPPPWB states, in part, that at the time of the Article 15, the applicant had a line number for promotion to the grade of master sergeant which would have been incremented on 1 September 2000.  However, as a result of the Article 15 reducing him to the grade of staff sergeant, he was automatically ineligible for promotion to the grade of master sergeant.  If the AFBCMR sets aside the Article 15, he would be entitled to promotion to the grade of master sergeant, effective 1 September 2000.

The AFPC/DPPPWB evaluation is at Exhibit D.

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APPLICANT’S REVIEW OF AIR FORCE EVALUATIONS:

Complete copies of the Air Force evaluations were forwarded to the applicant’s counsel on 15 August 2003 for review and response within 30 days.  However, 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.  We find no evidence of error in this case and after thoroughly reviewing the documentation applicant submitted in support of his appeal, we do not believe he has suffered from an injustice.  The applicant request the Article 15 and resultant punishment, be set aside and promotion to the grade of master sergeant, effective 1 October 2000.  Evidence has not been presented which would lead us to believe that the nonjudicial punishment, initiated and imposed on 12 June 2000 was improper.  Furthermore, when he received the Article 15, he was automatically ineligible for promotion to the grade of master sergeant.  In cases of this nature, we are not inclined to disturb the judgments of commanding officers absent a strong showing of abuse of discretionary authority.  We have no such showing here.  The evidence indicates that, during the processing of this Article 15 action, the applicant was offered every right to which he was entitled.  He was represented by counsel, waived his right to demand trial by court-martial, and submitted oral and written matters for review by the imposing commander.  After considering the matters raised by the applicant, the commander determined that he had committed the offense alleged and imposed punishment.  An Administrative Discharge Board (ADB) found that he did commit drug abuse on an experimental basis and since it was not likely to reoccur, recommended that he be retained in the Air Force.  He has not provided any evidence showing that the imposing commander or the reviewing authority abused their discretionary authority, that his substantial rights were violated during the processing of the Article 15 punishment and ADB, or that the punishment exceeded the maximum authorized by the UCMJ.  Therefore, based on the available evidence of record, we find no basis upon which to favorably consider 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-2003-01735 in Executive Session on 8 October 2003, under the provisions of AFI 36-2603:

The following documentary evidence was considered:

    Exhibit A.  DD Form 149, dated 25 Apr 03, w/atchs.
    Exhibit B.  Applicant's Master Personnel Records.
    Exhibit C.  Letter, AFLSA/JAJM, dated 7 Jul 03.
    Exhibit D.  Letter, AFPC/DPPPWB, dated 28 Jul 03.
    Exhibit E.  Letter, SAF/MRBR, dated 15 Aug 03.

                                 Chair