AIR FORCE DISCHARGE REVIEW BOARD HEARING RECORD

NAIE OF SERVICE MEMBER (LAST, FIRST MIDDLE  INITIAL)
11r•1u

GRADE

SSGT

AFSN/SSAN
'1111 1HTIL.

TYPE UOTH   X

I	PERSONAL     APPEARANCE

I	RECORD   RE VIEW

YES	No
x

NAME OF COUSEL AND OR ORGANIZ.>\ TIOJ\"

ADDRESS AND OR ORGANIZATION OF COllNSEI.

MEMBER SITTING
x x x x
x

ISSUF.S

A93.17 A92.35 AOl.31

INDEX NUMBER

A94.07

',

I	ORDER APPOINTING THE BOARD
2	APPUCATION FOR REVIEW OF DISCHARGE

3	LETTER OF NOT!FlCATION 	
4	BRIEF OF PERSONNEL FILE COUNSEL'S RELEASE TO THE BOARD
ADDITIONAL EXHlBJTS SUBMITTED AT TIME OF
PERSONAL APPEARANCE

TAPE RECORDING OF PERSONAL APPEARANCE

HEARll"OG DATE	CASE  NUMBER

20 Oct 2004	FD-2004-00204

Case heard at Washington, D.C., via video teleconference from Travis AFB, CA

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

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TO:	
SAF/MRBR
550 C STREET WEST, SUITE 40
RANDOLPH AFB, TX  78150-4742	FROM:	
SECRETARY OF THE AIR FORCE PERSONNEL COUNCIL AIR FORCE DISCHARGE REVIEW BOARD
135 COMMAND DR, EE WING, 3RD FLOOR
ANDREWS AFB, MD 20'i62- 7002	

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

AIR FORCE DISCHARGE REVIEW BOARD DECISIONAL  RATIONALE	CASE NUl'tlBER

FD-2004-00204	

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

The applicant appeared and testified via video teleconference at Travis AFB, CA before the Board which met at Andrews AFB, MD on October 19, 2004.

The attached brief contains available pertinent data on the applicant and the factors leading to the discharge.

FINDINGS:	Upgrade  of  discharge,  change  of  reason  and  authority  for  discharge,  and  change  of reenlistment code are denied.

The Board finds that neither the evidence of record nor that provided by the applicant substantiates an inequity or impropriety that would justify a change of discharge.

ISSUES:

Issue 1. The applicant contends his discharge was inequitable because it was based on one isolated incident in 72 months of service. The applicant received a Letter of Counseling for a missed appointment. He felt that although he had missed the appointment, he had mitigating circumstances due to taking his child to a doctor's appointment. He rescheduled the appointment on his own initiative. The Board noted that the applicant did miss the appointment and that the commander's policy was to issue a letter of counseling to every member who failed to attend scheduled appointments. The Board did not find the Letter of Counseling to be a significant factor in their decision to deny the applicant's request.

Issue 2. Applicant contended on the DD Form 293 that his discharge was improper because his pre-service drug use was mentioned in the discharge package. The applicant did not further discuss this issue at the hearing, but the Board did not find the issue of prior service drug use relevant to its deliberations.

Issue 3. The primary issue raised by the applicant was inaccurate information on the report of his positive urinanalysis (u/a).  The facts that led to the applicant's discharge were thoroughly discussed by the applicant and are set forth below.

The applicant was involved in a motor vehicle accident on November 13, 2002. As required by the local instruction, he was directed to provide a urine sample. Later that day, when he arrived at the testing location to provide the sample, there was no documentation for the commander directed u/a. The applicant signed a consent form indicating that he was voluntarily providing the sample and that he understood that the results cou.Jd be used against him in a trial by court-martial. On December 2, 2002, the notice that the applicant's urine tested positive for THC at the 19 nanogram level was sent to the applicant's commander. The report incorrectly stated that the date that he provided the sample was November 6, 2002. The applicant submitted, pursuant to a probable cause search authorization, a second urine sample on December 11, 2002. On December 19, 2002, the applicant was charged with negligently damaging a government vehicle and wrongful use of marijuana.  On December 27, 2002, the applicant requested discharge in lieu of trial by
court-martial.  Shortly after the request for discharge was submitted, the lab notified the applicant's commander that second u/a was positive for THC at the 150 nanogram level. The charge sheet was amended on January 14, 2003, to add a second specification of wrongful use of marijuana between November 11 and December 11, 2002.	

At the hearing the applicant testified concerning his request for discharge.  The applicant told the DRB that at the time of the request, he was fed up v.ith the military and wanted to get out.  He understood that his service could be characterized as under other than honorable conditions.  Nonetheless, he chose to separate rather than present his case at a court-martial.  He testified at length concerning the discrepancy concerning the date he gave the first urine sample.  He stated to the Board that he could not understand why there would be a typographical error between November 6 and 13. When asked to review the sample log, he noted that
he was the last person to sign the log and that all the other individuals on the log had submitted their samples on November 6, 2002.   The discrepancy in the date carried through to the charge sheet and the probable cause statement.  The applicant felt that the Air Force should not be allowed to negatively affect a member's career when the documentation is inaccurate.  The applicant submitted evidence that he had previously undergone drug tests that were not positive for illegal drugs.  He also had documentation of providing a hair sample for a preemployment screening on January 30, 2003.  He stated that had his preemployment
screening result had been positive he would not have been offered employment with the Las Vegas Hilton. The applicant denied that he used marijuana in October, November or December 2002.  The applicant noted his good duty performance as evidenced by his EPRS which were all rated 4 or 5. He said that he continues to work full-time at the Las Vegas Hilton while he also attends the University of Phoenix.  He submitted his transcript from the University of Phoenix showing grades of "A" with one "B+." The applicant testified concerning his family life and his community service work with his Masonic lodge. The DRB specifically noted the applicant 's excellent scholastic record and encouraged him to continue to pursue higher education. The DRB noted the inaccuracy in the date of his first u/a sample.  They determined that such an obvious typographical error did not render the applicant's discharge inappropriate.  The DRB specifically noted the timing of the applicant's request for discharge, which was after he gave the second sample, but before the positive result was reported.  The DRB determined that the testimony of the applicant and the evidence in  the file did not support the applicant' request.

Issue 4.  The applicant cited his desire to pursue a career in law enforcement as justification for upgrade and the change in reason and authority for discharge.  The applicant stated that when he applied for a civilian law enforcement position, he was told that his first positive u/a could be overlooked because of the date discrepancy; however, the second positive result could not be overlooked.  The applicant asked the DRB to act on this opportunity to correct the earlier mistake. The Board was sympathetic to the impact of the characterization of his service on his future employment options, but determined that his inability to work in  a law enforcement position this is not a matter of inequity or impropriety which would warrant an upgrade.

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