RECORD OF PROCEEDINGS AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS IN THE MATTER OF: DOCKET NUMBER: BC-2013-02353 COUNSEL: NONE HEARING DESIRED: YES ________________________________________________________________ APPLICANT REQUESTS THAT: 1. The Letter of Reprimand, dated 2 May 12, be removed from his records. 2. His under honorable conditions (general) discharge be upgraded to honorable. 3. His reentry code of "2B" (Separated with a general or under other than honorable conditions (UOTHC) discharge) be changed to allow him enter the Air Force Reserve. ________________________________________________________________ APPLICANT CONTENDS THAT: The basis for the LOR and subsequent discharge was a possible misinterpretation of the circumstances and these actions were unjust. He had undergone knee surgery and was prescribed oxycodone for pain. He was accused of distributing a controlled substance to his wife. However, the side effects of the medication must have caused memory loss because he does not remember giving his wife his pain medication. His wife was questioned by the Office of Special Investigation (OSI). Due to OSI misleading his wife, she implicated the applicant in providing her the pain medication. As a result, his commander initiated non-judicial punishment (NJP) under Article 15 of the Uniformed Code of Military Justice (UCMJ). However, as is his right, he requested the matter be adjudicated through a court-martial. In response, his commander withdrew the Article 15 and issued him an LOR. By requesting a court-martial he was entitled to certain rights of the UCMJ. Under the Military Rule of Evidence (MRE) a spouse would not have to testify against his or her spouse. He believes his commander withdrew the Article 15 and proceeded with the LOR because the evidence was not strong enough to support he deliberately distributed a controlled substance and his wife would not testify against him. His commander believed that he did not intentionally commit an malicious act, that this was an isolated event, but due to his previous drug conviction the commander could not afford to keep someone that had a pattern of drug abuse. The applicant’s complete submission, with attachments, is at Exhibit A. ________________________________________________________________ STATEMENT OF FACTS: On 22 Aug 06, the applicant commenced his enlistment in the Regular Air Force. On 28 Jan 08, the applicant was tried by a general court-martial for two specifications under Article 112a (Wrongful use, possession, etc, of controlled substances). He pled not guilty but was found guilty of on distributing ecstasy from 1 May 07 to 18 Jun 07. He was sentenced to forfeiture of all pay and allowances, confinement for ten months, and reduction to the grade of airman basic (E-1). His appellate review was completed on 2 Sep 08. The applicant applied and was selected for the Return to Duty Program (RTDP), which provides service members who were tried by court-martial, but have exceptional potential for future service, the opportunity to return to active duty. On 2 May 12, the applicant received a LOR for wrongful distribution of a controlled substance (oxycodone). On 3 May 12, the applicant provided a rebuttal response to the LOR. After reviewing the applicant’s rebuttal, his commander upheld the LOR and placed it in the applicant’s Personnel Information File (PIF). On 31 May 12, the applicant’s commander notified him that he was recommending his discharge from the Air Force for drug abuse. The specific reason for the discharge action was the applicant provided a controlled substance (oxycodone) to another military member (his spouse). On 5 Jun 12, the applicant acknowledged receipt of the notification and, after consulting with legal counsel, elected to submit a statement in his own behalf. On 12 Jun 12, the legal office reviewed the case and found it legally sufficient and recommended the applicant be furnished a general discharge without probation and rehabilitation. On 28 Jun 12, the discharge authority concurred with the recommendation and, on 2 Jul 02, the applicant was so discharged and was credited with 5 years, 1 month, and 27 days of total active service. The applicant had 254 days of lost time. ________________________________________________________________ AIR FORCE EVALUATION: AFPC/DPSIM recommends denial of the applicant’s request to remove the LOR from his records indicating there is no evidence of an error or an injustice. The applicant’s commander followed proper procedures in administering the LOR. Under the provisions of AFI 36-2907, Unfavorable Information File (UIF) Program, paragraph 3.5 states that when administering counseling, admonition, or reprimand in writing, the letter must reflect what service member did or failed to do, cite the incidents and dates, what the expectations are for improvement and that further unacceptable behavior may result in more severe action. The service member has three duty days to submit a rebuttal. The individual who initiated written counseling, admonition, or reprimand has three duty days to advise the service member of their final decision. The initiator may submit it to the service member's commander for information, action, or for their approval for filing an Unfavorable Information File (UIF) or Personal Information File (PIF). A complete copy of the AFPC/DPSID evaluation is at Exhibit C. AFPC/DPSOR recommends denial of the applicant’s request to upgrade his discharge noting there is no evidence of an error or an injustice. Based on the evidence of record, the applicant’s discharge, to include the separation program designator (SPD) code, narrative reason for separation, and characterization of service, was consistent with the procedural and substantive requirements of the discharge instruction and within the discretion of the discharge authority. The applicant has not provided any evidence of an error occurring in the discharge processing. In accordance with AFI 36-3208, Administrative Separation of Airman, paragraph 5.54, drug abuse is incompatible with military service and airmen who abuse drugs one or more times are subject to discharge for misconduct. Drug abuse is defined as the illegal, wrongful, or improper use, possession, sale, transfer, or introduction onto a military installation of any drug. This includes improper use of prescription medication. While the applicant was afforded an opportunity to remain in the Air Force after his first drug offense, he committed a second drug related offense and, based on his overall performance, he was furnished a general discharge. The AFI further reflects that a general discharge is appropriate when significant negative aspects of the airman's conduct or performance of duty outweigh positive aspects of the airman's military record. A complete copy of the AFPC/DPSOR evaluation is at Exhibit D. ________________________________________________________________ APPLICANT'S REVIEW OF AIR FORCE EVALUATION: Had he been given an opportunity to make his case in a military court, he believes a different outcome would have occurred. The advisory writer did not mention the Article 15 that his commander served him prior to withdrawing and serving him a LOR. While the advisory could not comment on his mental state during his post-operative recovery, the advisory writer did not mention that he was on a heavy narcotic per his doctor’s orders. His civilian and military provider acknowledged the possibility of incapacitation due to the prescribed medication. In order to wrongfully distribute a controlled substance, an individual must knowingly make the decision to commit the act and his did not. He understands that procedures were followed in accordance with Air Force policy; however, each time he stood up for himself, he was punished. The LOR he received was not the appropriate action; he should have received an Article 15. 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. Insufficient relevant evidence has been presented to demonstrate the existence of error or injustice regarding the applicant’s request to upgrade his discharge and change his associated reentry (RE) code. We took notice of the applicant's complete submission, to include his rebuttal response, in judging the merits of the case; however, we agree with the opinion and recommendation of AFPC/DPSOR and adopt their rationale as the primary basis for our conclusion the applicant has failed to sustain his burden that his general discharge and associated RE code constitute an error or injustice. Based on the available evidence of record, it appears the applicant’s general (under honorable conditions) discharge for misconduct was consistent with the substantive requirements of the discharge instruction and within the discharge authority’s discretion. He has provided no evidence which would lead us to believe his discharge was improper or contrary to the provisions of the governing directive, or the RE code issued in conjunction with it was erroneous or inappropriately assigned. As for the applicant’ request for the removal of his letter of reprimand, we are not convinced that corrective action is warranted. The applicant alleges his commander abused his authority in withdrawing the Article 15 and pursuing an LOR, when the applicant was willing to face a Court Martial to confront the alleged offense. However, the applicant has provided no evidence which would lead us to believe the commander’s decision to withdraw the Article 15 and furnish the applicant with a LOR was contrary to the provisions of the governing regulation, unduly harsh, disproportionate to the offenses committed, or an abuse of the commander’s discretionary authority. The responsibility to decide the type and scope of punishment rests with the commander and, in our view, his decision to withdraw the Article 15 in favor of an LOR does not represent an abuse of his discretionary authority. Furthermore, absent a strong showing of abuse of that authority, we are not inclined to substitute our judgment for that of the commander who, in our view, was much closer to events in question and had an opportunity to weigh all the available evidence in deciding the most appropriate punishment. Therefore, in the absence of evidence which shows that the applicant’s substantial rights were violated, he was coerced to waive any of his rights, or the commander who imposed the administrative punishment abused his discretionary authority, we conclude that no basis exists to recommend favorable action on the applicant’s request. 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 issue(s) involved. Therefore, the request for a hearing is not favorably considered. ________________________________________________________________ THE BOARD DETERMINES THAT: The applicant be notified the evidence presented did not demonstrate the existence of material error or injustice; the application was denied without a personal appearance; and 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-2013-02353 in Executive Session on 18 Mar 14 and 22 Apr 14, under the provisions of AFI 36-2603: , Panel Chair , Member , Member The following documentary evidence pertaining to AFBCMR Docket Number BC-2013-02353 was considered: Exhibit A. DD Form 149, dated 7 May 13, w/atchs. Exhibit B. Applicant's Master Personnel Records Exhibit C. Letter, AFPC/DPSIM, dated 9 Dec 13. Exhibit D. Letter, AFPC/DPSOR, dated 10 Jan 14. Exhibit E. Letter, SAF/MRBR, dated 10 Feb 14. Exhibit F. Letter, Applicant, dated 9 Mar 14. Panel Chair 1