AIR FORCE DISCHARGE  REVIEW BOARD HEARING RECORD
ITIAL)

rvPE GEN	X	PERSONAL  APPEARANCE

!YES	No
i x	1-

ISSUES

A94.05

MEMBER SITTING

INDEX NUMBER	A94.39

x x x x x

I	ORDER APPOINTING THE BOARD
2	APPLICATION FOR REVIEW OF DISCHARGE

3	LETTER  OF N_O_T_IF_IC_A_T_lO_N_ 	
1
4	BRIEF OF PERSONNEL FILE
COUNSEL'S RELEASE TO THE BOARD ADDITIONAL EXHIBI   S SUBMITTED AT TIME OF PERSONAL  APPEARANCE
TAPE RECOR DING OF PERSONAL APPEARANCE
-- --------+----···-----------------r--i-------·	1
HEARING DATE	CASE NUMllER

18 May 2005

FD-2005-00124

Case heard at Washington, D.C. via video-teleconference with St. Augustine, FL

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

Names and votes will be made available to the appJicant at the applicant's request.

SAFl\1RBR
550 C STREET WEST.
RAN DOLPH AFB, TX

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

AIR FORCE DISCHARGE REVIEW BOARD DECISIONAL RATIONALE	CASE NUMBER

FD-2005-00124	

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

The applicant appeared and testified before the Discharge Review Board (DRB), with counsel,.- ,at  Andrews AFB via video-teleconferencing at St. Augustine, Florida, on 18 May 2005.
The following additional exhibits were submitted at the hearing:

Exhibit #5: A Memorandum from	, dated 11 May 2005 Exhibit #6: Letter from Capt.

The attached brief contains available pertinent data on the applicant and the factors leading to the discharge. FINDINGS:   Upgrade of discharge and change ofreenlistment  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.

ISSUE:  Implicit in the member's issue is that his discharge was too harsh.  The record reflects the applicant received a letter of reprimand, dated 12 January 2004, for wrongful use of marijuana, an act  which he has denied. The notification memorandum from the applicant's commander reflects he was offered to have the allegation against him evaluated through a special court-martial, with the attendant rules of evidence and burden of proof. The applicant declined the offer on the advice of his defense counsel. The record also reflects the applicant was interviewed by an agent of the Office of Special Investigation (OSI) wherein he again denied any use of illegal drugs; however, at one point in the interview the applicant uttered the words, "If you say I did drugs, then I did it;" following which the interview was terminated. When asked by the DRB why he would make such a statement to an OSI agent, the applicant responded that he had been there for a long time and was fed up, or words to that effect. However, a signed witness statement from a co-worker, with information obtained from a third party present at the time of the applicant's alleged offense, places him and at least two other individuals in an off-base residence wherein the applicant participated in the smoking of a marijuana cigarette. The applicant believes that he was "maliciously and  falsely accused by [the aforementioned] co-worker of smoking marijuana," near Clovis, New Mexico in mid-October 2003. When asked by the DRB if there was any reason the particular witness would deliberately provide a false official statement, the applicant replied that they were friends and co-workers and knew of no reason the witness would lie. Interviews from the two other individuals, who allegedly participated in the offense, were also solicited by an OSI agent. Each responded with a request for legal counsel after advisement of their Article 31 rights and the interviews were terminated. Additionally, in the course of investigating applicant's criminal history (National Crime Information Center), it was discovered the applicant had previously been arrested on 12 August 2001 and charged with two misdemeanors: marijuana possession and narcotics equipment possession. The applicant provided plausible testimony that the vehicle in which the illegal substance and equipment were discovered did not belong to him and he had no knowledge of its presence. No case disposition was available for the charges.  The  Board  also  considered  the applicant's negative drug urine screens collected on 25 September 2003 and 8 November 2003, but found these do not conclusively rule out a singular use of marijuana in "mid-October 2003."

CONCLUSIONS: With the presumption of regularity in the applicant's case, 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