AIR FORCE DISCHARGE REVIEW BOARD HEARING RECORD

NAME OF SERVICE MEMBER (LAST, FIRST MIDDLE INITIAL)

GRADE	AFSN/SSAN

PERSONAL  APPEARANCE

X	RECORD REVIEW

ADDRESS ANO OR ORGANIZATION OF COUNSEL

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MEMBER SITTING

HON

GEN	UOTHC

OTHER	DENY

X* X* X*
X*

ISSUES

AOl.07

INDEX NUMBER

A66.00

X*

1  ORDER APPOINTING THE BOARD
2 APPLICATION FOR REVIEW OF DISCHARGE
3	LETTER Of NOTIFICATION
4	BRIEF OF PERSONNEL FILE COUNSEL'S RELEASE TOTHE BOARD
ADDITIONAL EXHIBITS SUBMITTED AT TIME OF PERSONAL APPEARANCE

TAPE RECORDING OFPERSONAL APPEARANCE HEARING

HEARING DATE	CASE   NUMBER

19 Jul 2013	FD-2013-00193

Case heard in Washington, D.C.

Advise applicant of the decision of the Board, the right to a personal appearance with/without counsel, and the right to submit an application to the AFBCMR.

Names and votes will be made available to the applicant at the applicant's request.

*Narrative Reason and Authority

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TO:

SAF/MRBR
550 C STREET WEST,SUITE 40
RANDOLPH AFB, TX 78150-4742

FROM:

SECRETAR Y OFTifE AIR fORCE PERSONNEL COUNOL AIR FORCE DISCHARGE REVIEW BOARD
ISJS COMMAND DR. EE WING, 3RD FLOOR
ANDREWS AFB, MO 20762-7001

AFllQ  FORM 0-2077, JAN  00	(EF-V2)	Previous

AIR FORCE DISCHARGE  REVIEW BOARD DECISIONAL RATIONALE	CASE NUMBER

FD-2013-00193	

GENERAL:	The applicant appeals for upgrade of discharge to honorable and to change the reason and authority for the discharge.

The applicant was offered a personal  appearance before the Discharge  Review Board (DRB) but declined and requests that the review be completed based on the available service record.

The attached brief contains available pertinent data on the applicant and the factors leading to the discharge.

FINDING:	The requests for the upgrade of the discharge, and to change of reason and authority for discharge are denied.

ISSUE:  Applicant received a General discharge for Misconduct -Drug Abuse

Applicant contends discharge was improper because he was discharged for use of Spice.   He contends use
of this substance was legal at the time and it was not formally banned by the Air Force until June 2010.   The fact Spice was not specifically listed as a prohibited substance until June 2010 does not exclude its use from being a basis for discharge per AFI 36-3208, paragraph 5.54, which states, "Drug abuse is incompatible with military service and airmen who abuse drugs one or more times are subject to discharge for misconduct." Paragraph 5.54.l defines drug abuse broadly to include "illegal, wrongful, or improper use, possession, sale, transfer, or introduction onto a military installation of any drug."  The term "drug" is also defined broadly to include not just illegal or controlled substances, but also "any intoxicating substance, other than alcohol, that is inhaled, injected, consumed, or introduced into the body in any manner for purposes of altering mood or function."

We also note that the respondent's punishment under Article 15, UCMJ did not allege violation of a lawful general order under Article 92, UCMJ.  Rather, it charged the respondent with violation of Article  134, UCMJ, based on use of Spice that was prejudicial to good order and discipline.

The Board did not find the lack of a current general order specifically addressing Spice to automatically  make the respondent's Article  15 action and discharge based on drug abuse improper.  Even without the presence of such a general order, a commander may reasonably find the evidence to support that an Airman's use of Spice was prejudicial to good order and discipline and punishable under Article 134, UCMJ.

Additionally, applicant admitted to using marijuana prior to his enlistment. This, combined with his sworn statement, meets the requirement for drug abuse and shows he was not a one-time experimental user.   After review of the record, the Board found the evidence to indicate that the applicant should have known and probably in fact did know that his use of Spice was wrongful or improper; in his four years of service, he should have been aware that the Air Force policy of zero tolerance to drug abuse would also prohibit use of Spice.  The Board found the negative aspects of the willful misconduct outweighed the positive aspects of the applicant's performance and concluded that the discharge was appropriate."

CONCLUSION: The Discharge Review Board concludes that the discharge was consistent with the procedural and substantive requirements of the discharge regulation and was within the discretion of the discharge authority and the applicant was provided full administrative due process.

In view of the foregoing findings, the Board further concludes that there exists no legal or equitable basis for upgrade of discharge and determines the discharge should remain unchanged.	

Attachment: Examiner's Brief