RECORD OF PROCEEDINGS
AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS

IN THE MATTER OF: 			DOCKET NUMBER:  BC-2016-02737

XXXXXXXXXXXXXX				COUNSEL:  NONE

						HEARING DESIRED:  YES 

APPLICANT REQUESTS THAT:

The Nonjudicial Punishment (NJP) action initiated against her on 10 Jun 14 be removed from her military record, and she be restored to the grade of E-7, with her original date of rank.

APPLICANT CONTENDS THAT:

She did not knowingly or intentionally take D-Amphetamine.  She provided pictures showing the similarity between her husband’s medications and her own, as well as documentation from medical professionals stating this was likely an accidental ingestion of a single tablet of her husband’s medication.

She also has a memorandum from the discharge board agreeing her use was unknowing and terminates the discharge proceedings.

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

STATEMENT OF FACTS:

On 15 Jul 98, the applicant initially entered the Regular Air Force.

On 14 Jun 08, the applicant was furnished an Honorable discharge and credited with 9 years, 11 months, and 0 days active service.

On 15 Jun 08, the applicant initially entered the Air Force Reserve.

On 24 Jun 14, the applicant received Nonjudicial Punishment under Article 15 of the Uniform Code of Military Justice (UCMJ),for, on or about 18 Feb 14, and on or about 4 Mar 14, at or near MacDill Air Force Base, Florida, wrongful use of D-Amphetamine, a schedule II controlled substance, in violation of Article 112a of the UCMJ.  The applicant was reprimanded and reduced in grade to Technical Sergeant, with a new date of rank of 24 Jun 14.  An Unfavorable Information File (UIF) was established and the NJP action filed in the UIF.

On 2 Jul 14, the commander denied the applicant’s appeal of the NJP action.

On 8 Jul 14, the Appellate Authority denied the applicant’s appeal of the NJP action.

The applicant is currently serving in the Air Force Reserve.

The remaining relevant facts pertaining to this application are contained in the memorandum prepared by the Air Force office of primary responsibility (OPR), which is attached at Exhibit C.

AIR FORCE EVALUATION:

AFLOA/JAJM recommends denial, indicating there is no evidence of error or injustice.

On 10 Jun 14, applicant was notified of her commander’s intent to impose NJP for one charge and one specification of wrongfully using D-Amphetamine, a controlled substance, in violation of Article 112a, Uniform Code of Military Justice (UCMJ).  The applicant accepted NJP, consulted an attorney, attached written matters and requested a personal appearance before her commander.  The commander, in considering all matters, upheld the NJP and imposed punishment of a reduction in rank to E-6 (from E-7) and a reprimand.  Applicant appealed, but that appeal was denied by the issuing commander on 2 Jul 14 and the appellate authority on 8 Jul 14.  Judge advocates from the installation and Numbered Air Force (NAF) legal offices found the NJP legally sufficient on 22 and 25 Jul 14, respectively.  On 20 Oct 14, applicant requested a set aside of her NJP action.  Her request largely mirrored her earlier NJP response.  Her commander denied that request several days later.

Subsequent to her Article 15, applicant was released from active duty at USSOCOM and returned to the Air Force Reserve.  The applicant was considered for administrative discharge, presumably based on her NJP.  On 13 Nov 15, the commander, Air Force Readiness & Integration Organization (RIO/CC), recommended the applicant be retained in the Air Force Reserve. The commander based this recommendation on the following: an October 2014 referral to ADAPT which resulted in an evaluation that applicant did not meet the criteria for drug and alcohol abuse disorder; an evaluation from her physician stating that applicant’s drug use was “likely a single accidental ingestion”; a report from the laboratory that processed her urinalysis sample stating that her levels were consistent with taking a single tablet of the controlled substance; and photographs of her medication which looked similar to her husband’s medication that she contends she accidently ingested.  The RIO/CC’s recommendation was approved by the ARPC/CC on 30 Nov 15, and the applicant was retained in the Air Force Reserve.

The applicant contends the decision by the RIO/CC proves she did not commit the misconduct that underlies the NJP and argues if the evidence is insufficient to support an administrative discharge than it is clearly insufficient to support the NJP she received.  The applicant cites AFI 51-202, Nonjudicial Punishment, paragraph 3.4, which provides that a commander should consider, in offering NJP, that if a member demands trial by court-martial the standard of proof required for a conviction is proof beyond a reasonable doubt.  Proof beyond a reasonable doubt is the highest standard in our military justice system; however, paragraph 3.4 explicitly clarifies that there is no specific standard of proof applicable to NJP proceedings, and commanders must simply consider the proof available to them in making the determination to proceed with NJP.

A review of the NJP action imposed on the applicant reveals no legal error or injustice which would warrant removal of the NJP from her record or clemency on the punishment imposed.  The applicant does not allege any legal error in the NJP process itself, but instead attacks the commander’s decision as unjust and unwarranted under the circumstances.  In accepting NJP, the applicant accepted the forum wherein her commander assesses the evidence and makes determinations as to her guilt and appropriate punishment.  There is no evidence or allegation of error or injustice that tends to undermine the NJP she received.  Whether clemency is warranted is a matter within the discretion of the board.

A complete copy of the AFLOA/JAJM evaluation is at Exhibit C.

APPLICANT'S REVIEW OF AIR FORCE EVALUATION:

A copy of the Air Force evaluation was forwarded to the applicant on 17 Aug 17 for review and comment within 30 days (Exhibit D).  As of this date, no response has been received by this office.

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 an error or injustice.  We took notice of the applicant’s complete submission in judging the merits of the case; however, we agree with the opinion and recommendation of the Air Force office of primary responsibility (OPR) and adopt its rationale as the basis for our conclusion the applicant has not been the victim of an error or injustice.  Therefore, in the absence of evidence to the contrary, we find no basis to recommend granting the requested relief.

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 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-2016-02737 in Executive Session on 7 Nov 17 under the provisions of AFI 36-2603:

	, Panel Chair
	, Member
	, Member

The following documentary evidence pertaining to AFBCMR Docket Number BC-2016-02737 was considered:

	Exhibit A.  DD Form 149, dated 11 Jul 16, w/atchs.
	Exhibit B.  Excerpt from Personnel Records.
	Exhibit C.  Memorandum, AFLOA/JAJM, dated 15 Dec 16.
	Exhibit D.  Letter, AFBCMR, dated 17 Aug 17, w/atch.

Pursuant to paragraph 1 of AFI 36-2603 (Title 32 Code of Federal Regulations, Part 865.1), it is certified a quorum was present at the Board's review and deliberations regarding AFBCMR Docket Number BC-2016-02737, and the foregoing is a true and complete record of the Board's proceedings in the above entitled matter.