RECORD OF PROCEEDINGS AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS IN THE MATTER OF: DOCKET NUMBER: BC-2010-04167 COUNSEL: HEARING DESIRED: YES ________________________________________________________________ APPLICANT REQUESTS THAT: 1. His separation from the Air National Guard (ANG) be removed from his record; and, he be reinstated in the Air National Guard. 2. His debt to the Department of Defense and Accounting Service (DFAS) be remitted. 3. As an alternative, he requests his general (under honorable conditions) discharge be upgraded to honorable and his reentry code be changed to allow him reentry in the ANG. ________________________________________________________________ APPLICANT CONTENDS THAT: His commander had a duty to comply with Air Force regulations and failed to do so. As such, the applicant was erroneously separated from the Air National Guard and incurred a debt for his reenlistment bonus. He was denied his right to counsel and other matters and he was not provided the supporting documentation on which the discharge was based. Although the applicant drafted a statement for his commander; it was not acknowledged. The applicant also contends there was chain of custody issues with the sample he provided. Between September 2008 and December 2009, the applicant participated in three separate random urinalysis and each test demonstrated he was not using illegal drugs. He requests the Board correct the error and remove the injustice. In support of his appeal, the applicant’s attorney provides a legal brief, copies of his Master Personnel Records and other supporting documentation. The applicant’s complete submission, with attachments, is at Exhibit A. ________________________________________________________________ STATEMENT OF FACTS: The applicant was a member of the Pennsylvania Air National Guard (PA ANG) from 28 July 2006 until 10 June 2009. On 1 April 2009, he was notified of his commander’s intent to discharge him from the Air National Guard due to drug use. Specifically, the applicant tested positive for THC (Marijuana). The applicant acknowledged receipt of his commander’s intent on 15 April 2009. On 11 May 2009, the discharge package was found legally sufficient. On 6 June 2009, the Adjutant General approved his discharge from the PA ANG for the reason of drug abuse. His service was characterized as general. ________________________________________________________________ AIR FORCE EVALUATION: NGB/JA states the applicant’s Letter of Notification was legally insufficient. The complete JA evaluation is at Exhibit C. NGB/A1POE recommends relief of the erroneous discharge. A1POE states the commander failed to follow the correct procedures as outlined in AFI 36-3209, by informing the applicant that he did not have the right to consult counsel. Additionally, the notification letter is incorrectly formatted and fails to inform the member of additional rights associated within the same paragraph. The complete A1POE evaluation is at Exhibit D. NGB/A1PS concurs with A1POE, the subject matter expert, and recommends relief be granted. The complete A1PS evaluation is at Exhibit E. ________________________________________________________________ APPLICANT'S REVIEW OF AIR FORCE EVALUATION: The applicant’s attorney responded to the NGB evaluation and concurs with the recommendation that the erroneous discharge be relieved. However, he believes the advisories do not grant meaningful enough relief to the applicant. Should the application be granted, the applicant should be allowed to rejoin the Pennsylvania Air National Guard and should be allowed to do so free from the stigma of this incident. The applicant’s complete response is at Exhibit F. ________________________________________________________________ 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 injustice. The Air Force offices of primary responsibility have confirmed that the applicant was not provided all the rights to which he was entitled during the discharge process; therefore, we recommend relief be granted. While this Board is without authority to direct reinstatement of a member into the Air National Guard, we recommend the applicant’s record be corrected to the extent indicated below. 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. ________________________________________________________________ THE BOARD DETERMINES THAT: The pertinent military records of the Department of the Air Force relating to APPLICANT be corrected to show that: a. On 10 June 2009 he was honorably separated under the provisions of AFI 36-3209, paragraph 3.23 (Secretarial Authority) with a separation code of JFF and a reenlistment eligibility (RE) code of 3K. b. On 10 June 2009, he applied for remission of the debt arising from the unearned portion of the selective reenlistment bonus he received in conjunction with his 28 July 2006 enlistment, and his request was approved by competent authority. ________________________________________________________________ The following members of the Board considered AFBCMR Docket Number BC-2010-04167 in Executive Session on 20 October 2011, under the provisions of AFI 36-2603: All members voted to correct the record, as recommended. The following documentary evidence pertaining to AFBCMR Docket Number BC-2010-04167 was considered: Exhibit A. DD Form 149, dated 27 Oct 10. Exhibit B. Applicant's Master Personnel Records. Exhibit C. E-mail, NGB/JA, dated 9 May 11. Exhibit D. Letter, NGB/A1POE, dated 1 Jun 11. Exhibit E. Letter, NGB/A1PS, dated 2 Jun 11. Exhibit F. Applicant’s response, dated 6 Jul 11.