RECORD OF PROCEEDINGS AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS IN THE MATTER OF: DOCKET NUMBER: BC-2012-03981 COUNSEL: NONE HEARING DESIRED: YES ________________________________________________________________ _ APPLICANT REQUESTS THAT: 1. The nonjudicial punishment imposed under Article 15 of the Uniform Military Code of Justice (UMCJ), on 27 Mar 12 be removed from his record. 2. His Unfavorable Information File (UIF), AF Form 3070C (Record of NonJudicial Punishment Proceedings) be removed. 3. His suspended security clearance be reinstated. 4. The referral Officer Performance Report (OPR), closing 20 Aug 12, be removed. 5. His promotion propriety action be removed and he be promoted to major – promotion was reinstated on 1 Sep 13. 6. His disqualification from flying status and loss flight pay be reinstated. ________________________________________________________________ _ APPLICANT CONTENDS THAT: In an 11-page brief, the applicant makes the following contentions: 1. In December 2011, he was seen by the military flight physician due to having lower back pain. The doctor prescribed physical therapy, ibuprofen, and a muscle relaxer (Robaxin). Later that same day, he was selected for a random urinalysis. 2. On 9 Jan 12, his squadron commander informed him that the urinalysis test was positive, but did not tell him for what substance. On that same day, he was directed to take another urinalysis, which came back negative. He assumed the positive result was for the muscle relaxer. He gave a statement to the Air Force Office of Special Investigation (AFOSI) with an account of what happened in December and provided his medical records to their office from his visit to the base clinic. Several days later, he was informed that sample contained Oxycodone/Oxymorphone, which he has never knowingly taken or been prescribed. 3. On 6 Feb 12, his commander filed court-martial charges against him based on the first urinalysis. An Article 32 hearing was conducted to review the results of the urinalysis. His Area Defense Counsel (ADC) chose not to question the witness stating that it was a tactical move to avoid tipping her hand regarding their defense strategy prior to the court-martial. The Investigating Officer (IO) suggested the case could be adequately addressed with NJP and administrative action. 4. On 19 Mar 12, the 18 AF/CC offered him an Article 15 for failing a urinalysis test. Subsequently, the Board of Inquiry (BOI) found that he did not knowingly ingest the illegal substance. The BOI panel consisted of three commanders who heard evidence and witness testimony. He requested that his UCMJ punishment be set-aside; however, the 18 AF/CC disregarded the findings of the BOI and polygraph results that were found to be in his favor, and did not set-aside the punishment. He discussed the decision to accept the NJP in detail with his ADC. This was possibly the most difficult decision he has ever had to make. He faced fighting for his exoneration versus being a federally convicted felon. This decision would affect his livelihood and the future of his family for decades. According to the governing instructions, it states that the role of the BOI is to make a fair and impartial recommendation about whether to retain or discharge an officer from military service. It also states, “if a majority doesn’t conclude that a preponderance of credible evidence supports an allegation, the board decides the finding in the respondent’s favor.” 5. His case is highly unusual in that two independent Air Force processes reached different conclusions about his innocence concerning a positive urinalysis for Oxycodone/Oxymorphone. There is a significant conflict in the relationship between Air Force legal and the administrative processes. It is irrational and unjust that his chain of command elected to ignore the BOI finding which exonerates him. 6. He did not knowingly use Oxycodone or Oxymorphone and the BOI agreed with his assertion when they found the following: The Respondent DID NOT wrongfully misused Oxycodone, a Schedule II controlled substance. It is astonishing that this finding can simply be cast aside by the government. 7. He understands that nonjudical punishment and administrative separation are two distinct processes; however, it is illogical and unjust for him to be punished under Article 15 when an Air Force-initiated BOI found that he did not commit the offense. 8. The BCMR processed a similar case, BC-1994-02889, detailing an instance where an Administrative Discharge Board (ADB) finding disputed a summary NJP. While the AFPC/JA and AFLOA/JAJM both recommended denial of relief, the Board was “persuaded that the contested Article 15 was inconsistent with the findings of the ADB. The ADB concluded” once the commander reviewed the serology report and the results of the ADB, we do not understand why he refused to set aside the Article 15. In our opinion, the benefit of the doubt should have been resolved in the applicant’s favor”. His case is similar in that he introduced two pieces of new evidence, a favorable polygraph result and the BOI finding that supports his request to set- aside his NJP. The commander immediately dismissed both items, upholding his punishment based on only the naked urinalyses. 9. If the Air Force never intended to honor a favorable BOI finding, when it goes against the summary ruling of a general officer, then the regulation should be rewritten to ensure it adequately covers this scenario. Furthermore, until this loophole is corrected, other airmen could potentially be found unjustly to commit an alleged offense and be scrutinized with the same level of blind policy enforcement that he has experienced. 10. His Area Defense Counsel (ADC) did not have a lot of experience in handling officer drug cases, which negatively impacted the outcome of his case. He relied heavily on his ADC to represent him; however, by her own admission she had no experience in cases similar to his and did not consult with an experienced ADC until very late in the process. His only option was to accept NJP vice a court-martial due to financial constraints. 11. As a result of the unmerited reprimand, he has been administratively removed from flying status; security clearance suspended; fined a month’s pay; received a referral performance report, and has promotion propriety action pending. 12. He provided a sworn statement while under oath to the BOI panel members; who were required to apply a higher standard of proof than a Numbered Air Force (NAF) commander. His case is an example of neither party reaping the intended benefits of due process and commander’s discretion. 13. He asked permission to allow a chain of custody expert and toxicologist to travel to San Antonio so that the people involved could be interviewed regarding his testing sample; however, the government denied his request, citing the social security number and bar code would be enough to substantiate the validity of the test. The sign in sheet and chromatograph were sent to an Army toxicologist who stated she could find no flaw, but without travelling to the location and conducting a full discovery, she could not comment on the test’s full validity. 14. He knew he was innocent, but his counsel continued to emphasize that going before a jury would be a true wild card, and although he had a strong Good Military Character (GMC) defense versus a single naked urinalysis, anything could happen in a deliberation room. Based on that advice, he chose not to gamble with his family’s future by going to court. In support of his request, the applicant provides a copy his referral OPR package, a copy of DD Form 458, Charge Sheet, a copy of his Positive Checklist and Urinalysis Results, email communications, a copy of his Statement of Understanding Regarding Recoupment of Education Assistance, Special Pay, or Bonuses, a copy of his Personal Data Sheet, a copy of the Investigating Officer’s Report and Appointment memorandum, w/atchs, a copy of his AF Form 3070C, a copy of his response to the NJP, a copy of his AF IMT 1168, Statement of Suspect/Witness/Complainant, a copy of Volume 1, Volume 2, and Volume 3, w/atchs, of the Record of Proceedings of Board of Inquiry. His complete submission, with attachments, is at Exhibit A. ________________________________________________________________ _ STATEMENT OF FACTS: The applicant is currently serving in the Regular Air Force in the grade of major. The applicant was selected for promotion to the grade of major by the Calendar Year 2011D Major Central Selection Board that convened on 5 Dec 11. The 18 AF/CC imposed NJP on the applicant for wrongfully using Oxycodone. The punishment consisted of a forfeiture of $2,768.00 pay per month for two months and a reprimand. The applicant appealed the decision; however, the AMC/CV denied his appeal. On 19 Jun 12, by a majority vote, the BOI found the applicant did not wrongfully use Oxycodone, a Schedule II controlled substance. The remaining relevant facts pertaining to this application are contained in the letters prepared by the appropriate offices of the Air Force, which is at Exhibit C, D, F, H, I, J and K. ________________________________________________________________ _ AIR FORCE EVALUATION: 1. AFLOA/JAJM recommends denial of removing the applicant’s NJP from his records. In this respect, initially he was preferred to a general court-martial under Article 32, UCMJ; however, the investigator recommended disposition by operation of a NJP proceeding. 2. After the NJP action was completed, a BOI convened requiring the applicant to show why he should be retained in the Air Force. The BOI reviewed all evidence and found he did not wrongfully use Oxycodone, and recommended he be retained. Further, based on the BOI and a self-obtained polygraph examination, the applicant requested the NJP be set-aside; however, his request was denied. 3. The applicant argues that there is an unfair inconsistency in the result of his NJP action when compared to the result of the BOI. He notes that he received an Article 15 for wrongful use of Oxycodone, but the BOI subsequently found that he had not used Oxycodone and for this reason his Article 15 should be set- aside. 4. The 18 AF/CC reviewed all available evidence and elected to serve an Article 15 on the applicant for one specification of wrongfully using Oxycodone. The applicant accepted the Article 15, as opposed to demanding a trial by court-martial, as the appropriate forum for resolving the criminal allegations against him. The commander had the best opportunity to evaluate the evidence in this case and exercised the discretion that the applicant granted him when he accepted the Article 15. Further, the legal review showed the commander did not act arbitrarily or capriciously when he made his decision. 5. As a matter of process when an administrative discharge action is initiated a BOI is convened. Once the BOI completes their findings, it determines whether the respondent should be retained on active duty and makes a recommendation on the case. Findings that make the respondent subject to removal from active duty or discharge do not prevent the board from recommending retention. In this case, the BOI recommended the applicant be retained. 6. Upon the conclusion of the administrative discharge proceeding, the applicant requested that the commander set-aside the earlier NJP. Despite the findings and the recommendations by the BOI, the commander was not persuaded by the applicant’s arguments and denied his request. The action by the commander was well within his purview and command prerogative. While a commander may recommend an administrative discharge after an Article 15 or court-martial action, the two are separate and unique systems used to dispose of allegations of misconduct. The administrative and punitive realms are completely independent of one another. The applicant’s Article 15 was independent of his BOI. Additionally, the administrative discharge board did not have the authority to nullify an earlier Article 15 action, reviewed and deemed legally sufficient. 7. The applicant asserts that his commander should have given more weight to his polygraph examination when determining whether to set-aside his Article 15. However, pursuant to the Military Rules of Evidence 707, “the results of a polygraph examination, the opinion of a polygraph examiner, or any reference to an offer to take, failure to take, or taking of a polygraph examination, shall not be admitted as evidence.” Therefore, the polygraph examination could not have been introduced or considered should his case have proceeded to a court-martial. While this rule does not necessarily apply to Article 15 proceedings, pursuant to the governing instructions, “while no specific standard of proof applies to NJP proceedings, including appeals, commanders should recognize that a member is entitled to demand trial by court-martial, in which case proof beyond a reasonable doubt of each element of every offense by legal and competent evidence is prerequisite to conviction.” Consequently, it is reasonable for the commander to choose not to consider the polygraph examination in light of the fact that it would not be admissible in a court-martial. 8. The applicant does not make a compelling argument that the Board should overturn the commander’s original decision on the basis of injustice. He would have us believe that the decision of the discharge board, made in his favor, is the one that should be dispositive when, in fact, it is equally possible that the decision of the commander in the NJP action was the correct assessment of his case. The complete JAJM evaluation is at Exhibit C. USAF/A3O-A1F recommends denial. After a thorough review of the applicant’s request, they cannot recommend any additional action. The applicant’s permanently disqualification from aviation service was published in accordance with the governing instructions. The A3O-A1F evaluation is at Exhibit D. ________________________________________________________________ _ APPLICANT'S REVIEW OF AIR FORCE EVALUATION: The applicant submits the requested copy of AF IMT Form 1137, Unfavorable Information File Summary, and AF Form 3070C, which he submits, along with a copy of his OPR w/atchs. With reference to the BOI, when he originally submitted his BCMR request, he only had audio CDs of the board proceedings. Now he provides three complete volumes of the proceedings. The applicant’s complete submission, with attachments, is at Exhibit E. ________________________________________________________________ _ ADDITIONAL AIR FORCE EVALUATION: AFPC/DPSIM recommends denying removal of his Article 15 and UIF. The applicant provided significant evidence regarding the NJP being unjust; however, none of the information points to violating the processing procedures. The complete DPSIM evaluation is at Exhibit F. ________________________________________________________________ _ APPLICANT'S REVIEW OF ADDITIONAL AIR FORCE EVALUATION: 1. He provides a full report from the polygraph expert who administered the test on 10 Jun 12. It may appear that the polygraph only contained two questions, both regarding the specific drug charge; however, this is not the case. All questions and electronic results are provided. 2. He received paperwork from the Air Force Central Adjudication Facility (AFCAF) regarding his security clearance. AFCAF is recommending a permanent revocation of his security clearance based on the single positive urinalysis and subsequent Article 15. 3. He cites a paragraph in the AFCAF revocation notification memorandum that states, “In addition, your commander offered you the opportunity to request an exculpatory polygraph at no charge from the Air Force Office of Special Investigations (AFOSI), but instead you chose to hire a polygrapher who asked you two very specific questions regarding your allegations.” This statement is almost a total falsehood and is indicative of the administrative assassination that has been executed since the BOI found him to have not wrongfully used the drug in question. The only true part of this statement is that he did have a polygraph administered off base, but only at the vehement advice of his guest counsel who assisted with tactical decision making just two weeks before the convening of the BOI. He was never offered a polygraph by the government. The applicant’s complete submission, with attachments, is at Exhibit G. ________________________________________________________________ _ ADDITIONAL AIR FORCE EVALUATION: AFCAF/PSA recommends that any actions concerning an error in the applicant’s record not be addressed until all aspects of the adjudication process have become final. The complete PSA evaluation is at Exhibit H. AFPC/DPSID recommends denial of the applicant’s request to remove the contested report. In this respect, they note the following: a. In accordance with the governing instructions which state, “Evaluators are strongly encouraged to comment in performance reports on misconduct that reflects a disregard of the law, whether civil law or the UCMJ, or when adverse actions such as Article 15, Letters of Reprimand, Admonishment, or Counseling, or placement on the Control Roster have been taken.” In this case, the applicant’s rating chain chose to document the incident on the contested report which caused the report, among other reasons, to be referred. b. The BOI is for retention determination purposes only and has no authority to invalidate or reverse an Article 15 action that has already been reviewed and deemed legally sufficient. c. The applicant provides absolutely no evidence within his case to question the legal sufficiency of the Article 15, and its subsequent reporting by the rating chain on the contested referral OPR. Therefore, they believe the comments referencing the applicant’s behavior and the punishment received on the contested referral OPR to be fair, accurate, and IAW the governing instructions. Furthermore, based on the confirmed legal sufficiency of the Article 15 as rendered, and no evidence that the Article 15 punishment was ever set-aside, they find that its mention in his contested report was appropriate, and as such there is no basis to which could support removal of the contested report. The complete DPSID evaluation is at Exhibit I. AFPC/JA defers to the Board to make a determination. This case obviously presents a unique fact pattern: a. The 18 AF/CC and the AMC/CV each independently reviewed the evidence and determined that the applicant wrongfully used Oxycodone. On the other hand, a three-member BOI (and the Secretary of the Air Force (SECAF)) also reviewed the evidence, but came to a contrary determination, finding the applicant had not wrongfully used the drug. Admittedly, the results of the NJP proceedings and the BOI are inconsistent. An argument can be made to remove from the applicant’s record the Article 15 and all actions that flowed there from. The sole basis for all the actions is the applicant’s alleged wrongful use of a controlled substance. There is no other derogatory information in his file. In fact, aside from this allegation, he has an exemplary service record. Two separate and independent reviews of the evidence in this case were conducted. Each came to a different conclusion on the question of whether the applicant wrongfully used Oxycodone. While each action can stand alone and support the respective actions, one might argue that the fact-finding process is not as fully developed in the NJP forum as in a BOI. In the former, the commander largely relied on documentary evidence relating to the allegation and documents presented by the applicant. At the BOI, the members had the opportunity to hear the testimony of witnesses, subject to cross-examination, and were able to make a determination as to the credibility of those witnesses. Both the government and the defense had a full opportunity at the board to present their cases and make arguments in support of their position. Furthermore, the standard of proof required to find a member guilty in a nonjudicial punishment proceeding is much less defined than that standard required at a BOI. b. Notwithstanding this dichotomy, they cannot say that the commander abused his discretion in refusing to set-aside the Article 15. Likewise, they cannot say that the other adverse actions that flowed from the determination were improper. The complete AFPC/JA evaluation is at Exhibit J. AFPC/DPSOO provides an advisory for information only that addresses the promotion propriety action. The applicant met and was selected for promotion to the grade of major. However, on 16 Jul 12, the 92 ARW/CC recommended the applicant’s name be removed from the promotion list because he wrongfully used Oxycodone. On 10 Oct 12, the SECAF disapproved and terminated the removal action. The applicant was promoted on 1 Sep 13 to the grade of major. The complete DPSOO evaluation is at Exhibit L. ________________________________________________________________ _ APPLICANT'S REVIEW OF ADDITIONAL AIR FORCE EVALUATION: 1. He requests a reevaluation from AFLOA/JAJM in light of the opinion provided by AFPC/JA. It is clear that after reading the AFPC/JA response, they had all other advisories while drafting the opinion. It is odd that while defending the validity of both administrative and punitive options for the commander, JAJM simply discounts the result of the BOI as an aberration. 2. He requests an initial evaluation of his case by USAF/JAA. It is apparent that the JAA is frequently consulted on cases similar to this one. 3. He requests an extension once he receives the revised opinion from JAJM and initial opinion from JAA. 4. On AF Form 4363, Record of Promotion Propriety Action, it is evident that the first dissenter of removing his name from the promotion list is a Senior Executive in JAA. Block 9 states, “The Judge Advocate General Legal Review; Record is legally sufficient. Comments ARE attached. Note 8, located at the bottom of the form states, “Records that are legally sufficient should normally be reviewed without comment.” He has not seen the comments that were attached. He was informed that those comments are for “eyes only”. The applicant’s complete submission, with attachments, is at Exhibit M. ________________________________________________________________ _ 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. After reviewing the evidence of record and that provided by the applicant, we believe his urinalyis test was positive for Oxycodone/Oxymorphone and there is no evidence that has been provided to establish an error in the processing of that urinalysis. Further, the Board believes the Board of Inquiry (BOI) focused on the retention issue rather than the the Air Force’s policy regarding the illegal use of drugs. As such, the nonjudicial action offered by the applicant’s commander, which he chose to accept, rather than request a trial by court- martial, should not be superseded by the results of the BOI. While we note the applicant requests further legal review, we believe his case has been sufficiently evaluated by the proper Air Force offices. Consequently, we agree with the opinions and recommendations of the Air Force offices of primary responsibility and adopt their rationale as the basis for our conclusion that the applicant has not been the victim of an error or injustice. With regard to the applicant’s request to have his security clearance reinstated, as noted by AFCAF/PSA, this issue is not yet complete and should not be addressed until all aspects of the adjudication process is complete. We agree with this recommendation. However, if after the AFCAF/PSA administrative process is complete and the applicant still believes he has suffered either an error or injustice, he may apply to the Board requesting reconsideration of his appeal. Therefore, in the absence of evidence to the contrary, we find no basis to recommend granting the relief sought in 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. ________________________________________________________________ _ 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-2012-03981 in Executive Session on 14 Nov and 2 Dec 13, under the provisions of AFI 36-2603: , Panel Chair , Member , Member The following documentary evidence was considered: Exhibit A. DD Form 149, dated 29 Aug 12, w/atchs. Exhibit C. Letter, AFLOA/JAJM, dated 16 Oct 12. Exhibit D. Letter, USAF/A30-A1F, dated 17 Oct 12. Exhibit E. Letter, Applicant, dated 17 Oct 12, w/atchs. Exhibit F. Letter, AFPC/DPSIM, dated 18 Dec 12. Exhibit G. Letter, Applicant, dated 15 Jan 13, w/atchs. Exhibit H. Letter, AFCAF/PSA, dated 20 Feb 13. Exhibit I. Letter, AFPC/DPSID, dated 5 Apr 13. Exhibit J. Letter, AFPC/JA, dated 26 Apr 13. Exhibit K. Letter, AFPC/DPSOO, dated 2 May 13. Exhibit L. Letter, SAF/MRBR, dated 8 May 13. Exhibit M. Letter, Applicant, dated 17 May 13, w/atchs.