RECORD OF PROCEEDINGS
AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS

IN THE MATTER OF:	DOCKET NUMBER:  BC-2003-03823
		INDEX CODE: 112.00, 128.05,
		131.00,110.03, 126.00

		COUNSEL:  NONE

		HEARING DESIRED:  YES

_________________________________________________________________

APPLICANT REQUESTS THAT:

1. He be reinstated to active duty in the grade of senior airman (E-4).

2. He receive immediate eligibility for promotion to the grade of staff sergeant.

3. His Reenlistment Eligibility (RE) code be changed from 2C to 1.

4. He receive backpay as a senior airman from 1 May 2001 to include leave pay and reenlistment bonus accrued.

5. The punishment imposed upon him under Article 15, Uniform Code of Military Justice (UCMJ), dated 13 December 2001, be removed from his records.

6. His rank at the time of separation (airman first class) be changed to senior airman.

_________________________________________________________________

APPLICANT CONTENDS THAT:

He was wrongfully discharged from the Air Force.  He received an Article 15 for the wrongful use of marijuana.  He states if the Office of Special Investigation (OSI) and his unit commander would have reviewed the evidence thoroughly, listened to his testimony, and the testimonies and statements from the witnesses questioned he would still be on active duty pursuing a lasting career within the security forces career field.  The investigation conducted by OSI and his unit commander failed to allow him to be promoted to staff sergeant by not allowing him to test to the next rank and pay grade.  The acceptance of an Article 15 is not an admission of guilt nor is it an acceptance of punishment.  His Area Defense Council (ADC) informed him there were three options he could take; deny the Article 15 and proceed with a court-martial, accept the Article 15 with the punishment, or accept the Article 15 and choose to litigate his own defense.  He chose to accept the Article 15 and litigate his own defense which allowed him to address any unasked or unanswered questions.  He was also concerned with the time lapse between the time he was served the Article 15 and a scheduled court-martial.  His ADC and the base Inspector General (IG) informed him that he could prove his innocence by requesting to take a polygraph test, which he did.  He was informed two weeks later by his first sergeant that the results from the test wouldn’t benefit his case.  He further indicates he has had one Senator inquiry, one IG complaint/investigation for abuse of power by his first unit commander, three separate OSI investigations, took one polygraph test and had two discharge packages served to him, the first one withdrawn based on the first two investigations being incomplete.  Out of three investigations that took 11 months to complete, two statements from the first investigation were presented as evidence saying that he used a controlled substance.  Not a urine analysis because one was never conducted even after consenting to and requesting to take one.  On 24 October 2002, the Air Force Discharge Review Board (AFDRB) found two statements, the only evidence used to separate him, were insufficient and could not prove he wrongfully used marijuana.  He believes his path in life is one with the Armed Forces.  He comes from a family with a strong military background.  He is fighting to ensure his family tradition doesn’t end with him and is passed on.

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

_________________________________________________________________

STATEMENT OF FACTS:

The applicant enlisted in the Regular Air Force on 29 May 1996 in the grade of airman basic for a period of four years.

On 4 April 2001, the applicant was notified of his commander’s intent to impose nonjudicial punishment upon him for the following:  He did, at or near Alamogordo, New Mexico, on divers occasions between on or about 1 October 2000, and on or about 31 October 2000, wrongfully use marijuana.

After consulting with counsel, applicant waived his right to a trial by court-martial and accepted the nonjudicial proceedings, he requested a personal appearance and submitted a written presentation.

On 1 May 2001, he was found guilty by his commander who imposed the following punishment: reduction to the grade of airman first class with a new date of rank (DOR) of 1 May 2000, a forfeiture of $50.00 pay per month for two months, and 30 days extra duty.

The applicant appealed the punishment and the appeal authority denied the applicant’s request.  The Article 15 was filed in his Unfavorable Information File (UIF).

On 13 November 2001, the applicant was notified of his commander's intent to initiate discharge action against him for drug abuse.  Specifically, the commander cited the Article 15 action.

The commander indicated in his recommendation for discharge action after reviewing the applicant’s letter of rebuttal, and reviewing his supporting documentation, there was nothing the applicant provided which dissuaded him from believing the recommendation for discharge was inappropriate.  Additionally, in his letter the applicant alleged another airman had a UIF and letter of reprimand (LOR) for making false official statements.  The unit had no such documentation on hand; however, the other airman’s training report from the Security Forces Academy indicated such action was taken while the airman was in technical school.  

The commander advised the applicant of his right to consult legal counsel, to submit statements in his own behalf; or waive the above rights after consulting with counsel.

After consulting with counsel, the applicant submitted statements in his own behalf.

A legal review was conducted by the Chief of Military Justice and the Staff Judge Advocate which recommended the applicant be separated with a general (under honorable conditions) discharge, without probation and rehabilitation, for drug abuse pursuant to AFI 36-3208, section H, paragraph 5.54.  They further recommended the applicant be barred from Holloman Air Force Base upon separation from the Air Force.

The discharge authority approved the applicant’s general (under honorable conditions) discharge.

EPR profile since 1998 reflects the following:

	PERIOD ENDING	EVALUATION OF POTENTIAL

	    28 Jan 98		2
	    30 Sep 98		3
	    30 Sep 99		5
	    18 Apr 00		5
	    14 Dec 00		5

The applicant was discharged on 12 December 2001, in the grade of airman first class with a general (under honorable conditions) discharge, under the provisions of AFI 36-3208 (Misconduct).  He served 5 years, 6 months, and 14 days of total active military service.  He received a Reenlistment Eligibility (RE) code of 2B - Separated with a general or under other than honorable conditions (UOTHC) discharge.

On 17 December 2002, the Air Force Discharge Review Board (AFDRB) considered and by a majority vote, granted the applicant’s request to upgrade his discharge to honorable and to change his narrative reason for separation.  They indicated the sole allegation supporting the discharge action was not supported by a preponderance of the evidence.  They concluded the applicant’s discharge should be upgraded as a matter of propriety.  Furthermore, the reason for the discharge was more accurately described as Secretarial Authority.  The applicant’s characterization and reason for discharge were changed to Honorable and Secretarial Authority under the provisions of Title 10, USC 1553.  A majority of the AFDRB voted to deny changing the applicant’s RE code.

_________________________________________________________________

AIR FORCE EVALUATION:

AFLSA/JAJM recommended denial.  They indicated this case presented conflicting evidence to the commander at the time of the nonjudicial punishment and to the next superior commander at the time of the applicant’s appeal of the punishment.  When considering the imposition of nonjudicial punishment, or when considering an appeal from such punishment, the commander must weigh the evidence, and when faced with conflicting evidence must determine which evidence to believe and which to reject.  The commanders’ determinations here were not manifestly unreasonable or clearly unfair, and set aside is not in the best interests of the Air Force. They find no error or injustice in connection with the military justice action or the resulting administrative discharge.  The applicant has not presented evidence compelling either a set aside of the nonjudicial punishment, a reinstatement to active duty, or a change to the applicant’s reenlistment eligibility code.

The evaluation is at Exhibit C.

AFPC/DPPRS recommended denial.  They indicated the discharge was consistent with the procedural and substantive requirements of the discharge regulation.  The discharge was within the discretion of the discharge authority.  In accordance with governing directives, illegal use of drugs is descried as “the illegal, wrongful, or improper use, possession, sale, transfer, or introduction onto a military installation of any drug.”  They find no error or injustice in connection with the military justice action or the resulting administrative discharge.  The applicant has not presented evidence compelling a change to his RE code.

The evaluation is at Exhibit D.

AFPC/DPPPWB recommended denial.  They indicated the demotion and discharge action taken against the applicant was procedurally correct and there is no evidence there were any irregularities or that the case was mishandled.

Should the Board grant the applicant’s request to set aside the Article 15 and reinstate him to active duty in the grade of senior airman, his DOR would be 29 May 1999 (original DOR to senior airman).  Since he had already been considered and nonselected for SSgt during cycle 00E5 before his reduction and subsequent discharge, the first time he would be eligible for supplemental promotion consideration to SSgt would be cycle 01E5.

The evaluation is at Exhibit E.

_________________________________________________________________

APPLICANT'S REVIEW OF AIR FORCE EVALUATION:

The applicant reviewed the evaluation and indicated the charges made against him were unfair, unjust and in error.  The results destroyed his reputation, name, career and life.  He hopes the Board investigates into these matters and accusations thoroughly and sees them for what they are, false and untrue.

The response, with attachment, is at Exhibit G.

_________________________________________________________________

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 error or an injustice warranting a change in the applicant’s RE code.  In this respect, the Board notes the findings of the Air Force Discharge Review Board (AFDRB) upgrading the applicant’s discharge to honorable and changing the narrative reason for the applicant’s discharge to Secretarial Authority and the applicant’s desire to serve his country.  In view of the foregoing, the Board believes the applicant should be given the opportunity to enlist in the armed forces.  Whether or not he is successful will depend upon the needs of the service and the Board’s recommendation in no way guarantees that he will be allowed to return to the Air Force or any branch of the armed forces.  Therefore, we recommend his RE code be changed to “3K” (Secretarial Authority).

4.	Notwithstanding the above determination, insufficient relevant evidence has been presented to demonstrate the existence of an error or an injustice warranting the remaining relief requested.  The applicant contends he did not use marijuana as alleged, and the non-judicial punishment and discharge he received were unjust because they were contrary to the evidence.  He claims the nonjudicial punishment and discharge were based solely on two witness statements which were contradicted by other witnesses.  The applicant’s contentions are duly noted; however, the Board is of the opinion the comments provided by the Military Justice Division are supported by the evidence of record.  In cases such of this nature, we are not inclined to disturb the judgment of commanding officers absent a strong showing of abuse of discretionary authority.  We believe the commander was in the best position to weigh the evidence in the case and judge the applicant’s credibility, as well as that of the statements made in this case, prior to recommending the discharge action.  The applicant has not provided any evidence the commanders abused their authority when they recommended and subsequently approved the applicant’s discharge.  Therefore, in the absence of evidence to the contrary, we find no compelling basis to recommend granting the relief sought.

5.	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 issue(s) involved.  Therefore, the request for a hearing is not favorably considered.

_________________________________________________________________

THE BOARD RECOMMENDS THAT:

The pertinent military records of the Department of the Air Force relating to APPLICANT, be corrected to show that at the time of his discharge on 12 December 2001, he was issued a Reenlistment Eligibility (RE) code of “3K.”

_________________________________________________________________

The following members of the Board considered AFBCMR Docket Number BC-2003-03823 in Executive Session on 7 April 2004, under the provisions of AFI 36-2603:

All members voted to correct the records, as recommended.  The following documentary evidence pertaining to AFBCMR Docket Number BC-2003-03823 was considered:

   Exhibit A.  DD Form 149, dated 3 November 2003, w/atchs.
   Exhibit B.  Applicant's Master Personnel Records.
   Exhibit C.  Letter, AFLSA/JAJM, dated 19 December 2003.
   Exhibit D.  Letter, AFPC/DPPRS, dated 29 January 2004.
   Exhibit E.  Letter, AFPC/DPPPWB, dated 13 February 2004.
   Exhibit F.  Letter, SAF/MRBR, dated 27 February 2004.
   Exhibit G.  Letter, Applicant, dated 20 March 2004, w/atch.

						

AFBCMR BC-2003-03823

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  , be corrected to show that at the time of his discharge on 12 December 2001, he was issued a Reenlistment Eligibility (RE) code of “3K.”