AIR FORCE DISCHARGE REVIEW BOARD HEARING RECORD

NAME OF SERVICE MEMBER (LAST, FIRST MIDDLE INITIAL)
FOIA Exception (b) (6)

GRADE	AFSNISSAN

FOIA Exception (b)(6)

PERSONAL  APPEARANCE

RECORD REVIEW

NAM E OVCOtmSF.L AND OR ORCAN17.ATION

ADDRESSAND OR ORCANIZATION OFCOUNSEL

FOIA Exception (b) (6)

MEMBER SITTING

HON

GEN

UOTHC	OTHER

DENY

x+• x+•

1.SSUF.S

AOl.00

INDEX NUMBER

A66.00

ORDER APPOINTING THE BOARD
2  APPUCATION FOR REVIEW OF DISCHARGE
3 LETTER OF NOT!FICAT!ON
4 BRIEFOF PERSONNEL FILE COUNSEL'S RELEASE TO THE BOARD
ADDfflONAL EXHIBITS SUBMTITED AT TIME OF PERSONAL  APPEARANCE
TAPE RECORDING OF PERSONAL APPEARANCE HEARING

m:ARJNG DATE	CASE NUMBER

21 Aug 2014	FD-2013-00490

Case heard in 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.

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

+change narrative reason
*change reenlistment code

FOIA Exception (b) (6)

 	_ FOIA Exception (b) (6)

TO:

SAF/MRBR
550 C STREET WES!', SUITE 40 RANDOLPH AFB, TX 78150-4742

SECRETARY Of' THE AIR FORCE PERSOl'iNEL COl!"NOL AIR FORCE DISOIARCJ: REVU:W BOARD
1$.15 COMMAND DR,EE WING, JRD FLOOR
ANDR£WS AFB. MD 2t762-7001

AFHQ FORM 0-2077,JAN 00	(EF-V2)	Previous

AIR FORCE DISCHARGE REVIEW BOARD DECISIONAL RATIONALE	CASE NUMBER

FD-2013-00490	

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 before the Discharge Review Board (DRB), without counsel, at Joint Base Andrews, Maryland, on 21 August 2014.

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

FINDING: The Board grants the requested relief to upgrade the service characterization, change the reason and authority for discharge, and to change the reenlistment code.

ISSUE:

Issue. Applicant contends his discharge for drug abuse based on use of Spice was improper because it was based upon abuse of a substance that was declared off limits after he used it.  He contends he lost his individual right to fair judgment as the use of spice was widespread throughout the fire department. He submits proof of this in that his discharge was accelerated to prevent him from reaching the end of his first term of service, in which case he would have received an honorable discharge before the discharge was complete.

The record indicates that the applicant was discharged for Misconduct - Drug Abuse. He received a nonjudicial punishment under Article 15 of the Uniform Code of Military Justice (NJP) for wrongfully using Spice, a prohibited substance, on multiple occasions with the intent to become intoxicated or alter mood or function. This NJP was not complete at the initiation of the discharge. The record does indicate applicant's discharge was accelerated to ensure completion before application reached his natural date of separation. The record contained no additional derogatory data and he received the highest possible rating of 5 on his Enlisted Performance Reports.

The applicant's sworn testimony, supported by the Office of Special Investigations (OSI) Report of Investigation (ROI), was that he was among a group of individuals who used Spice recreationally, in social settings such as barbeques. Spice was readily available for purchase. The applicant stopped using Spice months before the other members of the group did. The applicant testified he stopped using because he saw an email that Spice was prohibited and that it had negative effects.  Prior to the email, the applicant thought Spice was no more harmful than alcohol, a nutritional supplement, or an energy drink. The applicant could not remember when he saw that email or exactly when he stopped using Spice but testified the two events were linked. It was not until six months or more later that he was questioned by OSI. At that time, he never consulted an attorney, trusting that being truthful about his use and when he stopped it would be enough. Likewise, when facing NJP and discharge, he did not consult an attorney which may have been a factor in why the applicant did not present evidence that he met the seven retention criteria detailed in Air Force Instruction (AFI) 36-3208 to retain a military member in spite of drug use.

The applicant further testified that he is currently in a position that requires routine drug testing. He has never used an illegal drug and had no intention of abusing drugs when he used Spice. He is embarrassed that his DD Form 214 labels him as a person who has abused drugs. He provided letters of support from his supervisor and evidence of volunteer work.

The Board carefully assessed the applicant's testimony in light of the evidence in the record.  The Board	

found the applicant was credible. He was willing to answer questions and his description of his use of Spice and his response  to the email was consistent with his earlier statements during the investigation and supported by other witnesses. The Board recognized that at the time of the applicant's use of Spice, there was confusion generally within the Air Force about the legality of using Spice and its effects. After considering the totality of the facts and circumstances, the Board found it likely that the applicant would have met the seven retention criteria if he had presented that evidence at the time. In any event, the Board also found it more likely than not that the applicant did not use Spice with the intent to get high or with a full appreciation that Spice use was prohibited for military members. Because the applicant lacked the intent to abuse drugs, and stopped using as soon as he became aware use was prohibited, the Board found discharge under AFI 36-3208, paragraph 5.54, Drug Abuse, to be inappropriate. Based on the unique facts of this case, the Board unanimously voted to change the narrative reason for discharge.

For similar reasons, the Board also found that a General service characterization was not proper. The Board did not find the negative aspects of the applicant's conduct to outweigh the positive aspects of his service. (AFI 36-3208, paragraph 1.18.) The Board unanimously voted to upgrade the applicant's service characterization to Honorable. The Board also unanimously voted to change the applicant's RE code.

CONCLUSION: In view of the above findings, the Board concludes that the respondent's narrative reason for discharge is not properly described by "Drug Abuse" and should be changed to "Secretarial Authority;" that the overall quality of applicant's service is more accurately reflected by an Honorable service characterization; and that his RE code should be changed.

Attachment: Examiner's Brief