AIR FORCE DISCHARGE REVIEW BOARD HEARING RECORD

NAM E OF SERVICE MEMBER (LAST, FIRST MIDDLE INITIAL)
f '  S lll'f 11 U
TYPE   UOTH	PERSONA L APPEARANCE
NAME OF COUNSEi, AND OR ORGANIZATION

GRADE	AFSN/SSAN

SSGT
x	RECORD  REVIEW
ADDRESS AND OR ORGANIZATION  OF COUNSEL

YES	No
x

MEMBERS SITTING

HON	GEN

UOTHC	OTHER	DENY
x x x
x
x

SSUES

AOI.13 AOI.39 A94.05

INDEX NUMBER

A66.00

l	ORDER APPOINTING THE BOARD
2	APPLICATION FOR REVIEW OF DrSCHARGE
3	LETTER OF NOTIFICATION
4	BRJEF OF PERSONNEL FILE COUNSEL'S RELEASE TO THE BOARD
ADDITIONAL EXHIBITS SUBMITTED AT TIME OF
PERSONAL  APPEARANCE
TAPE RECORDING OF PERSONAL APPERANCE

HEARING DATE	CASE NUMBER

23 Jan 2004	FD-2003-00498

Case heard at 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.

....................J.. ...A••••••••·•·•••••••••••••••••••••••••••••••·,

TO:

SAF/MRBR
550 C STREET WEST, SUITE 40 RANDOLPH AFB, TX 78I50-4742

SECRETARY OF THE AIR FORCE PERSONNEL COUNCIL AIR FORCE DISCHARGE REVJE, i BOARD
1535 COMMAND DR, Et.: WING, lRD FLOOR ANDREWS AFB, MD 20761-7002

AFHQ  FORM  0-2077, JAN  00	(EF-V2)	Previous edition wilJ be used

AIR FORCE DISCHARGE REVIEW BOARD DECISIONAL RATIONALE	CASE NUMBER

FD2003-00498	

GENERAL:  The applicant appeals for upgrade of discharge to honorabl e.

The applicant  was  offered  a personal  appearance  before  the  Discharge  R eview  Board  but  declined  to exercise this right

The attached brief contains available perti nen t data on the applicant and the factors leading to the discharge.

FINDINGS:  Upgrade of discharge is denied.

The Board finds that nei ther the evidence of record nor that provided by the applicant substantiates an impropriety or inequity that would justify an upgrade of the discharge.

Issue l . Applicant was discharged for drug abuse and contends he was punished too severely.  During the enlistment under rev.iew, member, who was a reservist on active duty at the time, received an Article 15 for marijuana use after his specimen from a random urinalysis tested positive for THC at 147 ng/ml, well above the DoD cut-off of 15 ng/ml.  Member was recommended for an Under Other Than Honorable Conditions (UOTHC) discharge and after consulting his military defense counsel, submitted an unconditional waiver to his right to an administrative board hearing or to submit statements in his own behalf.  The Board
recognized applicant had about 19 years of satisfactory service, and as a result member was considered for lengthy service probation but again failed to submit any matters in his own behalf.  At the time of his discharge, the Air Force's drug policy was well publicized and members were continually made aware that illegal drug use was not tolerated.  Marijuana use is viewed as a very serious failure to meet Air Force  stand ards, particul arly for a noncommissioned officer with the rank and tenure applican t had. The Board
noted that because drug abuse is not compatible with Air Force standards, the characterization of service he received is warranted and appropriate due to that misconduct  The Board could find no inequity or impropriety on which to suggest a basis to upgrade the discharge.

Issue 2. Applicant contended his legal representation was inadequate.  The Board noted that Capt BCH, a Circuit Defense Counsel, assisted applicant for both his Article 15 proceeding and his administrative discharge processing.  Applicant signed statements acknowledging military legal counsel was made  available to him and that he consulted counsel.  Within 15 minutes of being offered the Article 15, applicant had consulted his counsel and replied to the action, electing not to make either a written or oral
presentation.  Additionall y, he made no appeal of the punishment.  At the time of the discharge processing and subsequent lengthy service review, the counsel submitted statements on behalf of his client contending the discharge was unjust, and noting applicant's prior service record devoid of any other misconduct   There is no evidence the applicant's rights were violated in any way.  In view of the records, the Board concluded applicant's contention was without merit, and that he was adequately represented throughout the administrative proceedings.  The fact that the results oflegal counsel or actions taken were not as he desired does not constitute legal inadequacy.

Issue 3.  Applicant claims he is innocent of the charges and was the victim of a contaminated specimen. The record indicates applicant's attorney suggested an argument of "innocent ingestion" at the time of the discharge, while conceding the difficul ty of establishing such a defense.  Applicant offered no actual evidence at the time of the discharge, or now, to disprove the presence of the illegal metabolite in his system, or to impugn the integrity of the drug testing process.  Therefore, the Board also finds this contention without merit  Furthermore, the Board was not persuaded by applicant's contention in that he failed to fully use the options available to him to prove his innocence at the time of the Article 15 and subsequent discharge.	

Issue 4.  Applicant contends that he should not be penalized indefinitely due to the adverse nature of his discharge.  The DRB recognized the applicant was 40 years of age when the discharge took place and the negative impact it may have had on him.  The Board noted applicant was older than the vast majority of members who properly adhere to the Air Force's standards of conduct, and concluded that the characterization of the applicant's discharge was appropriate due to the serious misconduct

CONCLUSIONS:  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, thus the applicant's discharge should not be changed.

Attachment: Examiner's Brief