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AIR FORCE DISCHARGE REVIEW BOAR]) HEARING RECORD

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NAME Of SERVICE MEMBER (LAST, flRST MIDDLE INITIAL)	GRADE	AFSN/SSAN
TYPE	I	-
GEN	X  PERSONAL APPEARANCE	RECORD  REVIEW
COUNSEL	NAME OF COUNSEL AND OR ORGANILA TION	ADDRESS ANO OR ORGANl7ATION OF COUNSEL
YES	NO
x

VOTE OF THE BOARD
MEMBERS  SITTING	HON	GF.N	UOTHC	OTHER	DENY
------------------------------------------	x
x x
I i	x

x

v
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ISSUES	INDEX NUMBER	EXJnBITS SUBMllTED TO THE BOARD
AOI.21, AOl.13, AOI.39,	A67.30	1	ORDER APPOINTING THE BOARD
A92.15, A92.21	2	APPLICATION FOR REVIEW OF DISCHARGE
3	LEITER OF NOTIFICATION
HF.ARING DATF.	CASE NUMBER	4	BRIEF OF PERSONNEL FILE
03-04-22	FD2002-0294	COUNSEL'S RELEASE TO THE BOARD
ADOITJONAL EXHIBITS SUBMIITED AT TIME OF PERSONAL APPEARANCE

TAPE   RECORDING     OF  PERSONAL    APPERANCE     HEARING APPLICANT'S ISSUE AND THE BOARD'S DECISIONAL RATIONAL ARE DISCUSSED ON THE AITACHED AIR FORCE DISCHARGE REVIEW BOARD DECISIONAL RATIONALE.
llliMARKS

Case heard at Washington, D.C.

Advise appJicant of the decision of the Board, and the right to submit an application to the AFBCMR.

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INDORSEMENT	I	DATE:   03-04-23

SAF/MIBR	
SECRETARY OF THE AIR FORCE PERSONNEL COUNCIL	
550 C STREET WEST, SUITE 40		AIR FORCE DISCHARGE REVIEW BOARD	
RANDOLPH AFB, TX 78150-4742		1535 COMMAND DR, EE WING, 3RD FLOOR	
		ANDREWS AFB, MD 20762-7002	
AFHQ J<"ORM 0-2077, JAN 00	(EF-V2)	Previous edition will be used.	

TO:	v	-	FROM:

A IR FORCE DISCHARGE REVIEW BOARD DECISIONAL RATIONALE	CASE NUMBER

FD2002-0294	

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

The applicant appeared and testified before the Discharge Review Board without counsel at Andrews AFB, MD, on 22 April 2003.

The following add itional exhibits were submitted at the heating: Exhibit  5:  Applicant's Contentions
Exhibit 6: Character Letter from ---_-_-_-_-_-_-_-_-_-_-_-_-_-_-_-_-_ -_-_-_-_-_-_dated 14 April 2003
Exhibit 7:  Memo from 347 SUPS/CC dated 8 February 2002
Exhibit 8: Copy of Business Card for Capt C	Moody AFB Arca Defense Counsel
Exhibit 9:  Excerpt from the Journal of Credibil ity Assessment and Witness Psychology, Vol. 2, No. I , 1999, regarding The Psychology of False Confessions
The attached brief contains available perti nent data on the applicant and the factors leading to the discharge. FINDINGS:   Upgrade of discharge, change ofreason and authority for the discharge, and change of	

reenlistment code are denied.

Issues.  Applicant was discharged for misconduct, commission of a serious offense.  Applicant received an Articl e 15 for attempting to use Ecstasy, a Schedule I controlled substance.  Specifically, he allegedly asked another military member to purchase Ecstasy for him, and used it, as attested to in two signed sworn
witness statements provided to the Air Force Oflice of Special Investigations.  Member also admitted under oath and in a signed sworn statement that he had asked the other military member to buy Ecstasy for him, but the person instead gave him ephedrine pills, which he recognized as ephedrine because he often used
the over-the-counter medication to help him stay awake.  At the time of his discharge, member consulted counsel and submitted many character statements made on his behalf requesting an honorable separation. Applicant denies illegal drug use and possession, but attributes his association with another military member of questionable character to a lapse in judgment.

Issues I and 2.  Applicant believes that his Area Defense Counsel could not adequately represent and advise him during his discharge processing because she also represented his accuser.  Specifically, applicant contends his accuser's sworn statement against him was false, but the defense counsel would not have been able to raise such a defense because her first obligation was to defend the applicant's accuser, thus she
could not support applicant's assertion of the false statement which would call her other client's credibility into question.  Applicant testified however that he never raised the issue of his accuser's statement being false during his A1ticle 15 proceedi ng or his discharge processing, and therefore by his own actions, no such defense was raised.   In fact, applicant signed a sworn statement corroborating his accuser's statement.  It should be noted that applicant was only charged with what he admitted to doing (attempting to use a controlled substance), and not what his accuser claimed applicant did (knowingly using ecstasy).
Additionally, applicant has no documented evidence that the defense counsel represented his accuser other than hearsay verbal information from a separate party, which applicant learned of after his discharge.
Furthermore, the Discharge Review Board surmised that had the defense counsel represented both applicant and applicant's accuser, it would nevertheless not have been a conflict of interest, nor under these facts even the appearance of a conflict of interest, in that it would have had no impact on the proceeding's results in  that applicant was not entitled to a board hearing and was not being court-martialed.  Therefore this issue is without merit.

Issue 3.  Applicant now contends his signed sworn AFOST statement was a false confession that he
provided as a result of immense pressure and fear of being convicted of something more serious.  Applicant testified he thought he would not be released from the interview unless he "implicated himsel f a little." Applicant could not explain why he continued to maintain the same "false" version of events throughout his Article 15 and discharge proceedings.  He also testified that he agreed to take a polygraph examination to  try to prove his innocence, but could not explain why he didn 't take the opportunity to "correct" his earlier "false confession," nor why his test results indicated deception.  Neither review of the records nor
applicant's testimony supported applicant 's contention of undue AFOSI influence to gain a confession nor a hostile investigative environment or technique.  This issue is without meri t.

Issue 4.  Applicant infers discharge was inequitable because it was too harsh based on isolated behavior that was out of character for him.  He notes his performance was otherwise excellent and he continued to be a hard worker even after his misconduct came to light.  Records review disclosed applicant had three Records of Individual Counseling, a Letter of Admonishment, a Letter or Reprimand, and at least one verbal counseling.   His disciplinary infractions included failure to go, disobeying a lawful order, dereliction of duty, and failure to disclose pre-service arrest information on his security screening application.  While the records also reveal many laudatory accomplishments and much positive recognition, the various offenses committed by member brought discredit to the Air Force and when weighed against the overall record of performance, although not used as a basis for the discharge, warrant the characterization of discharge received.  Additionally, the misconduct that was the basis for discharge could have been triable by court­ martial and subject to a punitive discharge.  Furthermore, member knew illegal drug use was incompatible with Air Force standards, but chose to ignore those standards by attempting to use an illegal substance.
Misconduct of this serious nature constitutes a significant departure from conduct expected of airmen; the seriousness of attempted drug abuse outweighs his otherwise satisfactory service.

Issue 5.  Applicant also noted that his post-service character has been commendable; he has been gainfully employed and pursuing more education, as well as having gotten married.  Nevertheless, applicant's successes since his separation arc not relevant to the period of service under review, are insufficient grounds to overcome the factors leading to his discharge, and do not provide a basis for an upgrade.

The Board points out that a member of the Air Force is expected to mai ntai n high standards of conduct both on and off duty.  The Board found the characterization of the discharge received by the applicant was appropriate and in accordance with Air Force policy.

CONCL USIONS:  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 that 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, change the reason for discharge, or to change his reenlistment code.  Thus, the applicant's discharge should not be changed.

Attachment: Examiner's Brief