RECORD OF PROCEEDINGS AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS IN THE MATTER OF: DOCKET NUMBER: BC-2010-02863 COUNSEL: NONE HEARING DESIRED: NO _________________________________________________________________ APPLICANT REQUESTS THAT: His disability be reevaluated and his under other than honorable conditions (UOTHC) discharge be upgraded to honorable. ________________________________________________________________ APPLICANT CONTENDS THAT: He received a UOTHC discharge based on a urine test analyzed for carboxylic acid metabolite of delta9-tetrahydrocannabino1. Based on the report and evidence he has provided, he was and is innocent of any substance abuse. He requests an upgrade of his discharge and entitlements to all veterans’ benefits. In support of his request, the applicant provides an expanded statement and copies of newspaper and medical articles, as well as documents extracted from his military personnel records. The applicant’s complete submission, with attachments, is at Exhibit A. _________________________________________________________________ STATEMENT OF FACTS: On 14 Jun 79, the applicant contracted his initial enlistment in the Regular Air Force. The applicant underwent a random urinalysis and tested positive for wrongful use of marijuana on or about 19 Mar 84 and 19 Apr 84. A special court-martial was scheduled to convene on 19 Feb 85; however, on 15 Feb 85; the applicant’s counsel submitted a request for discharge in lieu of trial by court-martial. On 15 Feb 85, the legal office reviewed the case and concurred with the findings of the unit commander and recommended the request for discharge in lieu court-martial be approved and the applicant be furnished a UOTHC discharge. On 15 Feb 85, the discharge authority concurred and directed the applicant be a furnished UOTHC discharge. On 22 Feb 85, he was furnished a UOTHC discharge and credited with five years, eight months, and nine days of active service. The applicant appealed to the Air Force Discharge Review Board (DRB) to have his UOTHC discharge upgraded to honorable. On 14 Apr 87, the AFDRB considered and denied the applicant’s request for an upgrade of his discharge. Pursuant to the Board’s request, the Federal Bureau of Investigation (FBI) provided a copy of an Investigative Report, which is at Exhibit C. On 1 Feb 11, a copy of the Investigative Report and a request for post-service information was forwarded to the applicant for review and comment within 30 days (Exhibit D). On 9 Apr 11, the applicant requested additional time to submit documentation in support of his application (Exhibit G). On 25 Apr 11, the Board staff advised the application that his request for an extension could not be honored and that his case would be administratively closed until he advised the Board he was ready to proceed with the processing of his application (Exhibit H). By letter dated 5 Aug 11, the applicant requested his case be reopened. In support of his request, the applicant provided news and medical articles which appear to call into question the validity of drug testing on darker skinned people (Exhibit I). _________________________________________________________________ AIR FORCE EVALUATION: The AFBCMR Medical Consultant recommends denial to upgrade of the applicant’s discharge to honorable. The Medical Consultant notes the challenges with the military's drug testing program during the time of the applicant’s service. However, barring any concerns of an error in the chain of custody or the reporting of the marijuana level, he found no medical mitigation for the applicant's drug use. Furthermore, the applicant's separation and character of service was within the commander's discretionary authority. While a UOTHC discharge was authorized and understood as a consequence of accepting the discharge in lieu of trial by court martial, by today's standards of punishment for a suspected single-use of marijuana, the applicant more likely than not would have received a under honorable conditions (general) discharge. Therefore, while the Board may consider upgrading the applicant's discharge to honorable based upon clemency, noting his otherwise outstanding military service and upstanding post-service character and behavior, the Medical Consultant opines, as a minimum, the discharge should be upgraded to general. A complete copy of the AFBCMR Medical Consultant’s evaluation is at Exhibit E. _________________________________________________________________ APPLICANT'S REVIEW OF AIR FORCE EVALUATION: More than 20 years ago his life was altered by a random drug test. Although, he knew he was not guilty, he did not fight it because he was not knowledgeable about what to do. He requests his discharge be upgraded on the basis of clemency. The applicant’s complete response, with attachments, is at Exhibit J. _________________________________________________________________ THE BOARD CONCLUDES THAT: 1. The applicant has exhausted all remedies provided by existing law or regulations. 2. The application was not timely filed; however, it is in the interest of justice to excuse the failure to timely file. 3. Sufficient relevant evidence has been presented to demonstrate the existence of error or injustice warranting some relief. After thoroughly reviewing the evidence of record and the BCMR Medical Consultant’s recommendation, we are persuaded that the applicant’s discharge should be upgraded to general on the basis of clemency. Although no was evidence provided or located to show that his discharge was improper or not in compliance with appropriate directives, it is our opinion that some relief on the basis of clemency is warranted. It appears the applicant has led a stable and productive life since his separation from the Air Force. In light of the above, we believe that it would be an injustice for him to continue to suffer the adverse effects of a UOTHC discharge. Therefore we believe an upgrade of his discharge to general (under honorable conditions) is warranted. Accordingly the Board recommends that his records be corrected as indicated below. _________________________________________________________________ THE BOARD RECOMMENDS THAT: The pertinent military records of the Department of the Air Force relating to the APPLICANT, be corrected to show that on 22 February 1985, he was discharged with service characterized as general (under honorable conditions). _________________________________________________________________ The following members of the Board considered AFBCMR Docket Number BC-2010-02863 in Executive Session on 13 Mar 12 under the provisions of AFI 36-2603: All members voted to correct the record as recommended. The following documentary evidence was considered: Exhibit A. DD Form 149, dated 20 Aug 10, w/atchs. Exhibit B. Applicant's Master Personnel Records. Exhibit C. FBI Report. Exhibit D. Letter, AFBCMR, dated 1 Feb 11, w/atchs. Exhibit E. Letter, AFBCMR Medical Consultant, dated 25 Mar 11. Exhibit F. Letter, SAF/MRBR, dated 28 Mar 11. Exhibit G. Letter, Applicant, dated 9 Apr 11. Exhibit H. Letter, AFBCMR, dated 25 Apr 11. Exhibit I. Letter, Applicant, dated 5 Aug 11, w/atchs.