RECORD OF PROCEEDINGS AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS IN THE MATTER OF: DOCKET NUMBER: BC-2012-02116 COUNSEL: HEARING DESIRED: YES ________________________________________________________________ APPLICANT REQUESTS THAT: 1. His non-judicial punishment (Article 15) be declared void and be removed from his record. 2. His referral Enlisted Performance Report (EPR), rendered for the period 5 Apr 10 through 4 Apr 11, be declared void and removed from his record. 3. His discharge from the Air Force be rescinded. 4. In the alternative, his Narrative Reason for Separation as reflected on his DD Form 214, Certificate of Release or Discharge from Active Duty, be changed to “Secretarial Authority,” the characterization of his discharge be upgraded to Honorable, and his Reentry (RE) code be change to one that would allow him to reenlist. ________________________________________________________________ APPLICANT CONTENDS THAT: 1. He is innocent of the charges that were preferred against him and argues the evidence used against him to support the non- judicial punishment was insufficient to prove his guilt beyond a reasonable doubt. One of the witness statements against him was from an individual who is a self-identified long term drug user, with a poor memory, and is therefore unreliable. By deductive reasoning, he has identified who the confidential informant must have been, and that individual now recants any statement he may have made to the Air Force Office of Special Investigation regarding whether he ever smoked Spice in his presence. 2. The proper procedures for preparing and referring the EPR were not followed. The referral letter indicated the EPR was being referred due to the rating of Does Not Meet Standards in Section III, block 2 of the applicant’s EPR. However, it should have also described the comments in Section III, block 2 relative to his receipt of the noted Article 15. In his response to the referral report the applicant pointed out again that the AFOSI report was inaccurate. Despite this the referral EPR was entered into his records. In support of his appeal, the applicant provides an expanded statement and copies of signed statements from those involved in his case, documentation related to his non-judicial punishment, the AFOSI Report of Investigation, documentation related to his referral EPR, numerous character statements, and documents related to this post-service education and volunteer work. The applicant’s complete submission, with attachments, is at Exhibit A. ________________________________________________________________ STATEMENT OF FACTS: The applicant initially entered the Air Force on 5 August 08. On 24 Mar 11, Air Force Office of Special Investigation (AFOSI) published a Report of Investigation (ROI) which disclosed the applicant smoked Spice with other military members on multiple occasions during the period Jan 10 through Oct 10. On 9 May 11, the applicant’s commander issued him non-judicial punishment under Article 15 of the Uniform Code of Military Justice (UCMJ) for being derelict in the performance of his duties in that he willfully failed to refrain from wrongfully using an intoxicating botanical incense or herbal mixture commonly referred to as Spice as it was his duty to do in violation of Article 92 of the UCMJ. For this, he was reduced to the grade of Airman Basic, forfeited $250.00 pay, restricted to base for 30 days, and received 15 days of extra duty. On 16 May 11, the applicant appealed his Article 15 to his commander, and on 18 May 11, after reviewing all of the written materials submitted by the applicant, the commander denied his appeal. The applicant received a referral EPR for the period 5 Apr 10 through 4 Apr 11, which included the comment “Member received Article 15 punishment for using a narcotic substance “Spice” while off duty.” On 5 Jul 11, the applicant’s commander notified him that he was recommending his discharge from the Air Force for Misconduct: Drug Abuse. The reason for this action was that between on or about 1 Aug 10 and on or about 1 Dec 10, the applicant wrongfully used an intoxicating botanical incense or herbal mixture, commonly referred to as Spice, on multiple occasions, for which he received an Article 15. On 12 Jul 11, the applicant’s commander recommended the applicant be discharged for Misconduct: Drug Abuse, and on 18 Jul 11, the case was determined to be legally sufficient. On 21 Jul 11, the discharge authority directed the applicant be furnished a General (Under Honorable Conditions) discharge for misconduct: drug abuse, without probation or rehabilitation. On 3 Aug 11, the applicant was furnished a General (Under Honorable Conditions) discharge certificate with a narrative reason for separation of “Misconduct: Drug Abuse,” and an RE Code of 2B (Discharged under General or other-than-honorable conditions). ________________________________________________________________ AIR FORCE EVALUATION: AFLOA/JAJM recommends denial, indicating there is no evidence of error or injustice. The applicant contends he is innocent of the charges preferred and asserts that, by deductive reasoning, he has identified who the confidential informant must have been, and that individual now recants any statement he may have made to the Air Force Office of Special Investigation regarding whether the applicant every smoked Spice in his presence. The commander at the time of the Article 15, however, had the best opportunity to evaluate the evidence in the case. The applicant made the same argument to his commander in his defense at the time of the non-judicial punishment action and again to his commander’s superior on appeal of the action. With that perspective, these commanders exercised the discretion that the applicant granted them when he accepted nonjudicial punishment proceedings in lieu of his right to a trial by court martial. The legal review process showed that these commanders did not act arbitrarily or capriciously in making their decisions. The applicant does not make a compelling argument that the Board should overturn the commander’s original, non-judicial punishment decision on the basis of injustice. The commander’s ultimate decision on the Article 15 action is firmly based on the evidence of the case and the punishment decision was well within the limits of the commander’s authority and discretion. The applicant has not shown a clear error or injustice. A complete copy of the AFLOA/JAJM evaluation is at Exhibit C. AFPC/DPSID recommends denial of the applicant’s request to have his referral EPR declared void and removed from his records, indicating there is no evidence of an error or injustice. In accordance with AFI 36-2406, Officer and Enlisted Evaluation System, evaluators are strongly encouraged to comment in performance reports on misconduct that reflects a disregard of the law, whether civil law or the UCMJ, or when adverse actions such as an Article 15, Letter of Reprimand, Admonishment, or Counseling or placement on the Control Roster has been taken. AFLOA/JAJM stated the applicant does not make a compelling argument the Article 15 should be set aside. Therefore, the applicant’s rating chain appropriately chose to document this incident on the contested report, which caused the report to be referred to the applicant. Based upon the presumed sufficiency of the Article 15 served on the applicant, its mention on the contested EPR was proper and in accordance with applicable Air Force policies and procedures. The applicant has not substantiated the contested report was not rendered in good faith by all evaluators based on knowledge available at the time. A complete copy of the AFPC/DPSID evaluation is at Exhibit D. AFPC/DPSOS recommends denial of the applicant’s request to change his Narrative Reason for Separation and RE Code. AFI 36- 3208, Chapter 5, Section H—Misconduct, states that airmen who abuse drugs one or more times are subject to discharge for misconduct. Discharge processing is mandatory for drug abuse. Drug use is abuse if it is illegal, improper, or wrongful. The commander was well within his discretion to find the applicant’s use of drugs improper or wrongful and initiate discharge action. The discharge was consistent with the procedural and substantive requirements of the discharge instruction and within the discretion of the discharge authority. The applicant did not submit any evidence or identify any errors or injustices in the discharge processing. He provided no fact warranting a change in his character of service or other changes to his DD Form 214. A complete copy of the AFPC/DPSOS evaluation is at Exhibit E. AFPC/DPSOA recommends denial of the applicant’s request to change his RE Code to one which will allow him to reenlist. AFPC/DPSOS validated the applicant’s discharge processing was executed in accordance with the procedural and substantive requirements of the discharge instruction and within the discretion of the discharge authority. Therefore, the RE code 2B is required per AFI 36-2606, Reenlistments in the U.S. Air Force, based on his involuntary discharge with General (Under Honorable Conditions) character of service. The applicant does not provide any evidence of an error or injustice in reference to his RE code of 2B. A complete copy of the AFPC/DPSOA evaluation is at Exhibit F. ________________________________________________________________ APPLICANT'S REVIEW OF AIR FORCE EVALUATION: While AFLOA/JAJM contends the applicant is relying on deductive reasoning to undermine the veracity of the evidence against him, this characterization is incorrect. He did not use deductive reasoning to determine the identity of the confidential informant. At the time of the Article 15, he strongly suspected the informant was his friend who, once he separated from the Air Force, confirmed his suspicions. The informant confirms the applicant did not use Spice with him and did not use it with the female airman identified in the AFOSI report. She did not provide a written statement saying that the applicant used Spice. She did provide a list of names in her oral statement. But she did not provide any identifying information regarding the applicant. This marks her statement as untruthful. She clearly knew who the applicant was as he was very good friends with the confidential informant, who was her boyfriend at the time. The confidential informant, who the commander relied upon in determining the applicant’s guilt, states the applicant did not use Spice. When the commander issued the Article 15, the informant stated the applicant did not use Spice. Although the legal office and the AFOSI could have revealed the identity of the confidential informant to the commander, they elected not to do so. The commander should have been provided this information, as he was not, his decision to punish the applicant is improper and unjust (Exhibit H). ________________________________________________________________ THE BOARD CONCLUDES THAT: 1. The applicant has exhausted all remedies provided by existing law or regulations. 2. The application was timely filed. 3. Insufficient relevant evidence has been presented to demonstrate the existence of an error or injustice. We took notice of the applicant’s complete submission, including his response to the advisory opinions rendered in this case, in judging the merits of the case; however, we agree with the opinion and recommendation of AFLOA/JAJM and adopt its rationale as the basis for our conclusion the applicant has not been the victim of an error or injustice with respect to the contested Article 15. We note the Article 15 was found legally sufficient and it appears the applicant was provided all of the rights to which he was entitled, including the right to refuse the Article 15 and demand trial by court-martial, which would have required a higher standard of evidence for determining whether or not he committed the alleged offenses. By waiving his right to trial by court-martial, he accepted the commander’s evaluation of the evidence and his judgment as to his guilt or innocence and appropriate level of punishment. Therefore, we believe the NJP action was proper and we do not find the commander’s actions to be arbitrary or capricious. We also note the applicant made similar arguments during the non-judicial punishment proceedings and his subsequent appeal. However, we find the commander exercised the discretion the applicant granted him when he accepted the Article 15 and found non- judicial punishment appropriate in his case, the punishment decision was well within the limits of the commander’s authority and discretion, and the applicant exercised his right to appeal his commander’s decision. Moreover, an Article 15 for illegal drug use is more than sufficient justification for the referral EPR and ensuing discharge, both actions which were well within the commander’s authority and discretion, and were administered following the appropriate policy and proper procedures. Therefore, in the absence of evidence the commander abused his discretionary authority, appropriate standards were not applied, or the applicant was denied rights to which he was entitled to, we find no basis to recommend granting the relief sought in this application. ________________________________________________________________ THE BOARD DETERMINES THAT: The applicant be notified the evidence presented did not demonstrate the existence of material error or injustice; the application was denied without a personal appearance; and the application will only be reconsidered upon the submission of newly discovered relevant evidence not considered with this application. ________________________________________________________________ The following members of the Board considered AFBCMR Docket Number BC-2012-02116 in Executive Session on 7 Feb 13, under the provisions of AFI 36-2603: , Panel Chair , Member , Member The following documentary evidence pertaining to AFBCMR Docket Number BC-2012-02116 was considered: Exhibit A. DD Form 149, dated 19 May 12, w/atchs. Exhibit B. Applicant's Master Personnel Records. Exhibit C. Letter, AFLOA/JAJM, dated 21 Jun 12. Exhibit D. Letter, AFPC/DPSID, dated 6 Aug 12. Exhibit E. Letter, AFPC/DPSOS, dated 23 Aug 12. Exhibit F. Letter, AFPC/DPSOA, dated 3 Oct 12. Exhibit G. Letter, SAF/MRBR, dated 29 Oct 12. Exhibit H. Letter, Council, dated 27 Nov 12. Panel Chair