RECORD OF PROCEEDINGS AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS IN THE MATTER OF: DOCKET NUMBER: BC-2010-01452 INDEX CODE: A94.05/06 COUNSEL: NONE HEARING DESIRED: NOT INDICATED ________________________________________________________________ APPLICANT REQUESTS THAT: While it is not readily apparent, it appears the applicant is requesting that his General (Under Honorable Conditions) discharge be upgraded to honorable and his former rank of technical sergeant (E-6) be restored. ________________________________________________________________ APPLICANT CONTENDS THAT: His discharge for drug abuse was unfair. He has had over 40 random drug tests throughout his career and, until the test in question, the results were always clean. He has worked for the Orange County Sheriff’s Department for over 26 years and they also conduct random drug tests on their employees. He was left out to dry by the Air Force Reserve. He requested another test to prove his innocence, but his commander denied his request outright. His assigned defense counsel was ineffective as she was stationed at Robins AFB, GA, nearly 3,000 miles away. The distance, combined with the fact that she was responsible to serve as counsel for every member of the Air Force Reserve, made it impossible for her to mount an effective defense. His case was rushed through because his enlistment was about to expire. He was not made aware that he could have traveled to Robins AFB, GA to be present for the hearing. As for his demotion, his right to a fair hearing was violated when he was not notified of the action, nor provided an opportunity to speak in his defense. In support of his request, the applicant provides an expanded statement and a copy of his retired pay summary. The applicant’s complete submission, with attachments, is at Exhibit A. ________________________________________________________________ STATEMENT OF FACTS: The applicant’s military personnel records indicate he enlisted in the Air Force Reserve on 25 May 85 as a prior service applicant and was progressively promoted to the grade of technical sergeant (E-6), effective and with a date of rank of 1 Dec 97. On 26 Jun 04, the applicant was selected for a random urinalysis and provided a sample which tested positive for methamphetamine. Following the positive result, he was administratively demoted to the grade of senior airman (E-4), effective 25 Mar 05, for failure to fulfill noncommissioned officer responsibilities in accordance with AFI 36-2503, Administrative Demotion of Airmen. On 11 Apr 05, the applicant’s commander notified him of his intent to recommend his discharge from the Air Force Reserve for commission of a serious offense – drug abuse. He acknowledged receipt and requested an administrative discharge board, while also applying for transfer to the Retired Reserve. On 21 Sep 05, the Secretary of the Air Force Personnel Council (SAFPC) considered the applicant’s request for transfer to the Retired Reserve and recommended denial. SAFPC noted that even though he had completed a period of substantial service without any prior disciplinary problem, his use of methamphetamine as a noncommissioned officer was a serious offense that should be addressed by an administrative discharge board. The case was found legally sufficient and the Secretary’s designee disapproved his request on 22 Sep 05. On 11 Oct 05, the applicant received an Under Other Than Honorable Conditions (UOTHC) discharge for commission of a serious offense – drug abuse. On 5 Feb 06, the applicant submitted a request to the Air Force Discharge Review Board (AFDRB) contesting the characterization of service, narrative reason and authority for separation, and the reenlistment eligibility (RE) code related to his administrative discharge. The AFDRB did not find sufficient evidence to substantiate a change to the narrative reason and authority for separation or RE code; however, they did find sufficient mitigation to warrant an upgrade of the discharge to general. Specifically, AFI 36-3209, Separation and Retirement Procedures for Air National Guard and Air Force Reserve Members, precludes a UOTHC service characterization based on conduct in the civilian community that does not affect the performance of military duties. AFI 36-3209 also requires that all UOTHC cases be reviewed by SAFPC and approved by the Secretary of the Air Force prior to being effected. In this case, the applicant’s discharge package was not forwarded for review or approved by the Secretary of the Air Force. On 15 Oct 07, the applicant was notified of the AFDRB decision and his 11 Oct 05 discharge was upgraded to General (Under Honorable Conditions) on 26 Nov 07. ________________________________________________________________ AIR FORCE EVALUATION: This application was forwarded to AFRC/A1K on 28 Apr 10 for an advisory opinion. However, AFRC/A1K has failed to respond. ________________________________________________________________ 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 warranting restoration of the applicant’s former grade or an upgrade of his discharge. After a thorough review of the evidence of record and the applicant’s complete submission, we are not convinced he has been the victim of an error or injustice. Other than his own assertions, he has provided no evidence which would lead us to believe the underlying basis for his administrative demotion and subsequent discharge was somehow insufficient, or that his commanders abused their discretionary authority. Therefore, in view of the above and in the absence of evidence to the contrary, we conclude that no basis exists for us to recommend granting the relief sought in this application. ________________________________________________________________ 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. ________________________________________________________________ The following members of the Board considered AFBCMR Docket Number BC-2010-01452 in Executive Session on 26 Oct 10, under the provisions of AFI 36-2603: The following documentary evidence pertaining to AFBCMR Docket Number BC-2010-01452 was considered: Exhibit A. DD Form 149, dated 25 Mar 10, w/atchs. Exhibit B. Applicant's Master Personnel Records. Panel Chair