RECORD OF PROCEEDINGS AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS IN THE MATTER OF: DOCKET NUMBER: BC-2007-03899 INDEX CODE: 110.01 COUNSEL: NONE HEARING DESIRED: YES ________________________________________________________________ _ APPLICANT REQUESTS THAT: He be credited with the 13 days necessary for him to retire with an active duty retirement for length of service. ________________________________________________________________ _ APPLICANT CONTENDS THAT: On 7 September 2005, he submitted to a random urinalysis as he had done many times in his Active Guard Reserve (AGR) career, but on this occasion, on 14 September 2005, he was notified that his sample had tested positive for cocaine. He is innocent. He had requested a polygraph test that he would pay for and the unit agreed. However, his AGR removal package was forwarded to the Adjutant General’s (TAG) office on 29 November 2005 without the test being done. The TAG then forwarded the AGR removal package to the Secretary of the Air Force (SAF) on 20 March 2006. SAF agreed with the request to remove him from his AGR tour on 15 November 2006. He was told on 17 November 2006 that his AGR tour was over as of 1700 that same day – just 13 days short of an active duty retirement. He had 12.5 days of leave but was not allowed to take it. He contends that actions of his command were cruel and vindictive because he had contacted his local Senators and Congressmen. All during the process of removing him from his AGR tour, senior staff was hinting to him that he would make his retirement date. In fact, Air National Guard Instruction (ANGI) 36-101 specifically states that all drug cases would be handled in an expedient manner. Fifteen months does not seem expeditious to him. Further, he believes he was being made an example of as two years prior to his case, another member (senior master sergeant) tested positive for marijuana use. She admitted using the drug and was only demoted to master sergeant and allowed to complete her tour and retire for length of service. The command took tremendous heat over their decision. For 15 months, he went to work everyday not knowing if he was going to lose his job over something he did not do. His family has experienced tremendous stress and tension going through this ordeal. He served his country with honor and integrity for over 25 years and was cruelly denied his active duty retirement by less than one day. In support of his appeal, the applicant has provided a personal statement, his removal from the AGR program paperwork, several letters of support, the results of a polygraph exam, copies of his National Guard Bureau (NGB) Form 22, Report of Separation and Record of Service, his DD Form 214, Certificate of Release or Discharge from Active Duty, and a copy of his discharge order. Applicant’s complete submission, with attachments, is at Exhibit A. ________________________________________________________________ _ STATEMENT OF FACTS: The applicant, a former active duty member of the New Hampshire Air National Guard (NHANG) began his military service on 13 January 1981. He was progressively promoted to the grade of technical sergeant with a date of rank (DOR) of 20 January 1991. On 7 September 2005, he provided an annual urinalysis sample that tested positive for benzoylecgonine (BZE), a constituent of cocaine. His sample was three times the 100 nanograms per milliliter cutoff value for BZE. In November 2005, he was notified by his commander of his intent to involuntarily separate him from his AGR tour. On 21 November 2005, the applicant responded with a rebuttal statement wherein he claimed while he was not able to provide a definitive reason for the positive test he offered a few possible reasons for the test turning out positive for cocaine. He contended the Army either mishandled his sample; or the inordinate amount of Ginseng tea he drank while caring for his ill mother, in conjunction with his prescription medications including Oxycodone, Hydrocodone, Cephalexin, and Diazepam, could have contributed to a false positive reading. On 20 March 2006 the TAG sent a memorandum to the SAF noting the applicant had already reached the 20 satisfactory years of service towards a Reserve retirement at age 60 and requested approval to remove the applicant from his AGR tour. The applicant was between 18 and 20 years of active service, thus requiring the SAF to make the final decision as to removing the applicant from his AGR tour. On 15 November 2006, the TAG received SAF approval for the removal of the applicant from his AGR tour and the TAG ordered that he be separated from his tour effective 17 November 2006. The applicant had served 19 years, 11 months, and 17 days of Total Active Federal Military Service (TAFMS) and a total of 22 years, 6 months, and 19 days of satisfactory service towards a Reserve retirement at age 60. ________________________________________________________________ _ AIR FORCE EVALUATION: This application was sent to the NGB on 3 December 2007 for an advisory opinion based on the merits of the application. To date, the NGB has failed to provide one. ________________________________________________________________ _ 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 a thorough review of the evidence of record and applicant's submission, we do not find his uncorroborated assertion of combined use of prescription medications and ginseng tea along with the Army’s possible mishandling of his sample, in and by themselves, sufficiently persuasive to convince us that they were potential contributors to his testing positive for cocaine. He has provided no evidence to show that any of the medications he was taking at the time could metabolize into the BZE found in his sample, nor has he provided evidence to show the Army mishandled his sample. Despite his numerous letters of support and his heartfelt appeal, he simply has provided no concrete evidence to show his positive urinalysis test for cocaine was a result of anything but the apparent ingestion of cocaine. With regard to how his processing was handled, we are of the opinion that his removal from the AGR program was conducted well within law and regulations and eventually received the approval of the Secretary of the Air Force. Consequently, the applicant has failed to sustain his burden of having suffered either an error or injustice. Therefore, in the absence of persuasive evidence to the contrary, we find no compelling 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 issue 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-2007-03899 in Executive Session on 2 April 2009, under the provisions of AFI 36-2603: The following documentary evidence was considered: Exhibit A: DD Form 149, dated 9 November 2007, w/atchs.