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AIR FORCE DISCHARGE REVIEW BOARD HEARING RECORD

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PERSONAL  APPEARANCE 	

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NAME 01' COUNSEL ANP OR ORGANIZATION	ADDRESS AND OR ORGANIZATION OF COUNSl:L

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MEMBER    SITTING	HON	GEN	UOTHC	OTHER	DENY
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ISSUES	A94.02	INPEX NUMBER	A66.00

EXHIBITS SUBMITTED TO THE BOARD	'

A01.14	1	ORDER APPOINTING THE BOARD
A94. 12	2	APPLICATION FOR REVIEW or DISCHARGE
AOI.32	3	LETTER OF NOTIFICATION
4	BRIEF OF PERSONNEL FILE
COUNSEL'S R ELEASE TO Tl IE BOAR D ADDITIONAL EXHIBITS SUBMITTED AT TIME OF PERSONAL APPEARANCE
TAPE RECORDING OF PERSONAL APPEARANCE

HEARING DATF.	CASE NUMBER

02 Feb 2006	FD-2005-00323
1\Pl'LICANT's ISSUE ANIJTHE llOAIU)'S Dl'11l!tSldNAIYRA'tlOhlAL AllE DJSCUSSl!l:>'dN 'n!F;;A.TTACilllP••AlR.FoRCE DISCHARGE. llEVIEW-'llOARifDECIS!ONAL RATIONALE

Case heard at Washington, D.C.

Advise applicant ofthe decision of the Board.

Names and votes wi l l be made available to the applicant at the applicant's request.

* Change R,e,..a.. son and Authority to Misconduct

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ml»Qf{SEMENT U.;,
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SAF/MRBR
550 C STREET WEST, SUITE 40 RANDOLPH AFB, TX 78IS0-4742

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SECRETA RY OF THIC AIR FORCE PERSONNICL COUNCIL AIR FORCE PISCHAR GE REVIEW  BOARD
1535 COMMA ND DR. EE WING.lRD FLOOR ANDREWS AFB. MO 20762-7002

AFHQ FORM 0-2077, JAN 00	(EF-Y2)	Previous edition will be used

AIR FORCE DISCHARGE REVIEW BOARD DECISIONAL RATIONALE	CASE NUMBER

FD-2005-00323	
GENERAL: The applicant appeals for upgrade of discharge to honorable.

The applicant appeared and testified before  the Discharge Review Board (DRB), without counsel, at Andrews AFB on 02 Feh 2006.

The following additional exhibits were submitted at the hearing: Exhibit 5: Written Statement By Applicant With Contentions;
Exhibit 6: Letter of Congratulation-Honor Graduate of Air Force Basic Military Training; Exhibit 7: Letter of Appreciation- 313th Training Squadron Honor Guard Team; and Exhibit 8: Ten Certificates of Training, Achievement, and Appreciation

The attached brief contains available pertinent data on the applicant and the factors leading to the discharge. FINDINGS: The reason for discharge is changed to misconduct and upgraded to honorable.
ISSUE:

Issue 1. Applicant contends that he was wrongfully accused of ingesting "magic mushrooms" for which he received a Letter of Reprimand (LOR). The applicant asserted that he denied use in a voluntary statement to the Air Force Office of Investigation (OSI), in response to his LOR and in response to his administrative discharge. He said he understood the information about his use came from a confidential source which he had no opportunity to confront. A summary of his AFOSI file shows that the confidential source identified the applicant as being present at a party where "magic mushrooms" were being ingested. The confidential source, however, did not state that the applicant was observed using mushrooms or that he overhead the applicant or others state that the applicant had done so. The AFOSI summary pointed to no other evidence of the applicant's use. The Board concluded, as a matter of propriety, that there was insufficient evidence to support the incident alleged in the LOR. The remaining basis for drug abuse discharge is the applicant's admitted inhalation of nitrous oxide from cans of commercially available whipped cream for which he received nonjudicial punishment. The applicant was charged with a violation of Article 134 of the Uniform Code of Military Justice (UCMJ) for conduct prejudicial to good order and discipline and not Article 112a, UCMJ, wrongful use of a controlled substance. Use of nitrous oxide is drug abuse as defined by AFI 36- 3208, paragraph 5.54.1 and the administrative discharge on that basis is still legally sufficient. However, the Board concluded, as a matter of equity, that under the totality of circumstances of this case it was now more appropriate to reflect the applicant's discharge as "misconduct" as opposed to "drug abuse."

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. However, in view of the foregoing findings, the Board further concludes the applicant's characterization and reason for discharge should be changed to "honorable" and "misconduct" under the provisions of Title 10, USC 1553.

Attachment: Examiner's Brief