RECORD OF PROCEEDINGS

IN THE MATTER OF:	DOCKET NUMBER: BC-2020-02028

XXXXX	COUNSEL: NONE
	
		HEARING REQUESTED: NO

APPLICANT’S REQUEST

1.  Removal of Article 15, Non-judicial Punishment (NJP).

2.  Removal of referral Enlisted Performance Report (EPR).

3.  Reinstate her line number and date of rank to master sergeant with back pay and allowances.

APPLICANT’S CONTENTIONS

In Aug 19 after a random urinalysis, she was told she tested positive for amphetamines and was directed to attend the Alcohol and Drug Abuse Prevention and Treatment (ADAPT) Program.  She received an Article 15, which she appealed, and was then recommended for discharge.  The discharge board concluded that she did not wrongfully use an amphetamine and should be retained.  Because of the discharge board findings, her Article 15 and referral EPR should be removed and her promotion should be restored. 

The applicant’s complete submission is at Exhibit A.

STATEMENT OF FACTS

The applicant is a Regular Air Force technical sergeant (E-6/TSgt).

Applicant was selected for promotion to master sergeant during Cycle 19E7, Line Number 689, Date of Rank/Effective Date of 1 Sep 19.

On 18 Sep 19, the applicant’s commander offered her NJP for one specification of wrongful use of amphetamine, in violation of Article 112a, Uniform Code of Military Justice (UCMJ).

On 1 Oct 19, the applicant’s commander found she committed the charged offense, and administered a punishment of suspended reduction to the grade of staff sergeant, suspended forfeiture of $1,698.00 pay per month for 2 months, and a reprimand.

On 20 Mar 20, AF Form 910, Enlisted Performance Report (AB-TSgt), for the period 1 Oct 19 thru 1 Oct 19, was referred to the applicant.  

For more information, see the excerpt of the applicant’s record at Exhibit B and the advisories at Exhibits C, D and E.

APPLICABLE AUTHORITY

AFI 36-3208, Administrative Separation of Airmen.
Paragraph 5.40. Action Required of the Commander: 
5.40.1. The unit commander determines the extent and type of investigation needed to find whether probable cause for discharge exists based on the type of information received. If the unit commander determines that no credible information exists to form a basis for discharge, he or she may decide no further action is warranted. However, if the unit commander believes there is credible information that a basis for discharge exists, then the unit commander can request a fact-finding inquiry be conducted. 
5.54. Drug Abuse. Drug abuse is incompatible with military service and airmen who abuse drugs one or more times are subject to discharge for misconduct. 
5.54.1. Drug abuse for purposes of this regulation is 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. The term drug includes any controlled substance in schedules I, II, III, IV, and V of Title 21 U.S.C., Section 812. It also includes anabolic/androgenic steroids, and 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. 
5.54.2. The presence in the military environment of persons who engage in drug abuse seriously impairs accomplishing the military mission. Members who abuse drugs adversely affect the ability of the Air Force to: 
5.54.2.1. Maintain discipline, good order, and morale. 
5.54.2.2. Foster mutual trust and confidence among members.
5.54.2.3. Facilitate assignments and worldwide deployment. 
5.54.2.4. Recruit and retain members. 
5.54.2.5. Maintain public acceptability of military service. 
5.54.2.6. Prevent breaches of security. 
5.54.3. Evidence obtained through urinalysis or evidence furnished by the member in connection with initial entry in rehabilitation and treatment may be used to establish a basis for discharge. For limits on using such evidence in characterizing service, see paragraph 1.21. 
5.54.4. Processing Procedures. 
5.54.4.1. Action required. Commanders must act promptly when they have information indicating a member is subject to discharge for drug abuse. They evaluate the specific circumstances of the offense, the member’s records, and the member’s potential for future service and take action in accordance with the following paragraphs: 
5.54.4.1.1. If it is warranted, discharge action must be started promptly. However, there is no time limit for initiating discharge action, and failure to do so does not at any time constitute a constructive waiver. Discharge action is waived only if waiver is expressly approved under Chapter 6, Section 6K.
5.54.4.1.2. If the commander determines a waiver of discharge is appropriate, a request for waiver must be processed promptly. See Chapter 6, Section 6K. 
5.54.4.2. Retention Criteria and Consideration. 
5.54.4.2.1. A member found to have abused drugs will be discharged unless the member meets all seven of the following criteria: 
5.54.4.2.1.1. Drug abuse is a departure from the member’s usual and customary behavior. 
5.54.4.2.1.2. Drug abuse occurred as the result of drug experimentation (a drug experimenter is defined as one who has illegally or improperly used a drug for reasons of curiosity, peer pressure, or other similar reasons). 
5.54.4.2.1.3. Drug abuse does not involve recurring incidents, other than drug experimentation as defined above. 
5.54.4.2.1.4. The member does not desire to engage in or intend to engage in drug abuse in the future. 
5.54.4.2.1.5. Drug abuse under all the circumstances is not likely to recur.
5.54.4.2.1.6. Under the particular circumstances of the case, the member’s continued presence in the Air Force is consistent with the interest of the Air Force in maintaining proper discipline, good order, leadership, and morale (Noncommissioned officers have special responsibilities by virtue of their status; fulfill an integral role in maintaining discipline; and, therefore, must exhibit high standards of personal integrity, loyalty, dedication, devotion to duty and leadership).
5.54.4.2.1.7. Drug abuse did not involve drug distribution. For the purpose of this paragraph, drug distribution means the delivery to the possession of another. Distribution does not occur with the transfer of the drugs from one person to another while such persons are engaged in the mutual use of drugs, except that individuals who obtain, or arrange for obtaining, the drugs used by others are involved in distribution. "Delivery" means the actual, constructive, or attempted transfer of the drugs, whether or not there exists an agency relationship. 
5.54.4.2.2. The burden of proving that retention is warranted under these limited circumstances rests with the member. Findings regarding the existence of each of the limited circumstances warranting a member’s retention are required of the board or the separation authority only if: 
5.54.4.2.2.1. The member clearly and specifically raises such limited circumstances. 
5.54.4.2.2.2. The board, or in the absence of a board, the separation authority relies upon such circumstances to justify the member’s retention. 

AFI 36-2502, Enlisted Airman Promotion/Demotion Programs.
Table 1.1. Determining Ineligibility For Promotion.
If on or after the promotion eligibility cutoff date, and the airman is serving in grade of TSgt through senior master sergeant (SMSgt), then the Airman is ineligible for promotion during a particular cycle when he or she (includes testing, consideration if already tested, cancellation of promotion sequence number if previously selected):
Rule 19: is undergoing a suspended reduction imposed by UCMJ Article 15.

AFI 36-2406, Officer and Enlisted Evaluation Systems.
Paragraph 1.8. Evaluator’s Mandatory Considerations.
1.8.7. When to Document.
1.8.7.1. If a member has been convicted by a court-martial or if the senior rater decides to file any adverse information in an Airman’s Officer Selection Record or Senior Non- Commissioned Officer Selection Record, comments relating to the ratee’s behavior are mandatory on the next OPR, EPR or TR, and PRF if not already documented. The evaluation becomes a referral. Comments are also required on Airmen who have been convicted of a reportable civilian offense that: 1) is a sexual offense that is the same as, or closely related to, sex-related offenses punishable under the Uniform Code of Military Justice (UCMJ), or attempts to commit any of those offenses, 2) carries a possible sentence of confinement for more than one year or death, or 3) results in a sentence that includes unsuspended confinement. For further guidance, supervisors and commanders should consult the servicing Staff Judge Advocate. 
1.8.7.2. A rater is not required to comment on a conviction in a current report if the misconduct or event that ultimately resulted in a conviction was addressed on a previous evaluation. For example, if a member is arrested and charged with Driving Under the Influence (DUI) by off-base officials and declines to waive jurisdiction. The member ultimately receives a Letter of Reprimand that is commented on in the next evaluation. Later (different reporting period), the downtown prosecution results in a conviction. The rater is not required to comment on the DUI conviction because the underlying misconduct that led to the conviction was addressed in a previous evaluation.
1.10. Referral Evaluations.
1.10.3. When to Refer a Performance Evaluation. Performance evaluations must be referred when: 
1.10.3.1. Comments in any OPR, EPR, LOE, or TR (to include attachments), regardless of the ratings, that are derogatory in nature, imply or refer to behavior incompatible with or not meeting AF standards, and/or refer to disciplinary actions. When considering the Airman’s ability to meet standards, consider unacceptable performance as actions that are incompatible with, and/or Airmen who have routinely (a repeated inability to meet standards that would render the aggregated performance assessment over the entire reporting period as below AF standards and expectations) and/or significantly (a single instance where failure to meet standards is either egregious in nature or so far short of a standard that it impacts overall aggregated performance assessment) failed to adhere to established AF standards and expectations.

AIR FORCE EVALUATION

AF/JAJI recommends denying the applicant’s request to remove NJP.  The applicant was offered NJP because she had tested positive for amphetamine in a random urinalysis.  She consulted with an attorney, accepted NJP proceedings, waived her right to a court-martial, submitted a written presentation for her commander’s consideration, and requested a personal appearance with her commander.  In her written presentation, the applicant asserted that she had no idea how/why amphetamine metabolites ended up in her urine sample, and she never knowingly, willingly, or intentionally used a controlled substance.  The applicant’s commander found she committed the charged offense.  She appealed the NJP, but her appeal was denied.  In accordance with AFI 36-3208, the applicant’s command convened an administrative discharge board to determine whether she should be discharged for drug abuse.  On 15 Jan 20, the board concluded there was no basis for discharge, and the applicant continued to serve on active duty.  The applicant asserts that her follow-up drug test was negative for illegal substances.  She also asserts the discharge board found she had not wrongfully used amphetamine and the results of the board should be sufficient to set aside the punishment.

A review indicates the commander did not abuse her discretion in administering the NJP, finding the applicant committed the offense as alleged, or imposing punishment.  The punishment imposed was within the permissible range for the applicant’s offense.  The applicant has not submitted any new evidence or information that casts doubt on the legal sufficiency of the NJP.  She references the discharge board’s finding that no basis for discharge existed, but a purported inconsistency between a commander’s findings on an NJP and an administrative discharge board’s subsequent conclusions on the same or similar allegations does not necessarily render the NJP an error or injustice.  Therefore, there is no basis to set aside the applicant’s NJP.  The complete advisory opinion is at Exhibit C.

AFPC/DP2SPP recommends denying the applicant’s request to reinstate her promotion.  Based on the documentation provided by the applicant and analysis of the facts, there is no evidence of an error or injustice for issuance of demotion.  On 1 Oct 19, the applicant’s commander found she committed the charged offense, and administered punishment.  The applicant appealed the NJP, but was denied.  On 15 Jan 20, a discharge board determined the respondent did not wrongfully use amphetamine from on or about 1 Aug 19 to on or about 13 Aug 19.  The finding in Allegation 1 does not form a basis for discharge under AFI 36-3208, paragraph 5.54.  After analyzing the evidence presented, the demotion actions taken against the applicant were procedurally correct.  The complete advisory opinion is at Exhibit D.

AFPC/DP3SP recommends denying the applicant’s request to remove her referral EPR.  The applicant received NJP for wrongful use of an amphetamine.  Accordingly, the rating chain was required to consider if the offense should be documented in the official record on an evaluation report in accordance with AFI 36-2406, paragraph 1.8.7.  According to AF/JA, the commander did not abuse her discretion in administering the NJP, finding the applicant committed the offense as alleged,or imposing punishment, and the applicant has not submitted any new evidence or information that casts doubt on the legal sufficiency of the NJP.  The rating chain considered the offense and determined the incident should be documented in the official record on a Directed By Commander EPR with the comment “Member received Article 15 violated UCMJ Article 112a, wrongfully used amphetamine.”  In accordance with AFI 36-2406, paragraph 1.10.3., the commander determined to document the incident.  Based on the analysis of the facts and documentation provided, the applicant has provided insufficient evidence to substantiate an error or injustice in regards to the contested EPR.  As such, as the basis of the Article 15 still exists, the basis for the comment on the EPR exists.  

The complete advisory opinion is at Exhibit E.

APPLICANT’S REVIEW OF AIR FORCE EVALUATION

The Board sent a copy of the advisory opinion to the applicant on 7 Apr 21 for comment (Exhibit F), but has received no response.

FINDINGS AND CONCLUSION

1.  The application was timely filed.

2.  The applicant exhausted all available non-judicial relief before applying to the Board.
 
3.  After reviewing all Exhibits, the Board concludes the applicant is the victim of an error or injustice.  While the Board notes the recommendation of AF/JAJI, AFPC/DP2SPP and AFPC/DP3SP against correcting the record, the Board finds sufficient evidence to substantiate the applicant’s contentions.  A review of the administrative discharge board’s records reflect the applicant more likely than not was accidentally exposed and did not intend to wrongfully use Adderall and recommended she be retained in the Air Force.  The applicant states and the Board agrees because of the administrative discharge board findings, her Article 15 and referral EPR should be removed and all rights, privileges and property be restored.  Therefore, the Board recommends correcting the applicant’s records as indicated below.

RECOMMENDATION

The pertinent military records of the Department of the Air Force relating to APPLICANT be corrected to show 

	1.  The nonjudicial punishment imposed on 1 Oct 19, under the provisions of Article 15, Uniform Code of Military Justice, be declared void and removed from her records, and all rights, privileges and property of which she may have been deprived be restored.

	2.  The AF Form 910, Enlisted Performance Report (AB-TSgt), Directed By Commander , rendered for the period 1 Oct 19 be declared void and removed from her records and replaced with an AF Form 77. 

	3.  She was promoted to the grade of master sergeant (E-7) effective and with a date of rank of 1 Sep 19.

CERTIFICATION

The following quorum of the Board, as defined in Air Force Instruction (AFI) 36-2603, Air Force Board for Correction of Military Records (AFBCMR), paragraph 1.5, considered Docket Number BC-2020-02028 in Executive Session on 11 May 21 and 2 Jun 21:

, Panel Chair 
, Panel Member
, Panel Member

All members voted to correct the record.  The panel considered the following:

Exhibit A:	Application, DD Form 149, w/atchs, dated 29 May 20.
Exhibit B:	Documentary evidence, including relevant excerpts from official records.
Exhibit C:	Advisory opinion, AFPC/JAJI, dated 2 Sep 21.
Exhibit D:	Advisory opinion, AFPC/DP2SPP, dated 3 Mar 21.
Exhibit E:	Advisory opinion, AFPC/DP3SP, dated 8 Apr 21.
Exhibit F:	Notification of advisory, SAF/MRBC to applicant, dated 7 Apr 21.

Taken together with all Exhibits, this document constitutes the true and complete Record of Proceedings, as required by AFI 36-2603, paragraph 4.11.9.