AIR FORCE BOARD FOR  CORRECTION OF MILITARY RECORDS 

RECORD OF PROCEEDINGS 

rF- 

JUN  2 6  @8 

IN THE MATTER OF: 

DOCKET NUMBER:  95-01540 
COUNSEL : 
HEARING DESIRED:  Yes 

APPLICANT REOUESTS THAT: 
His under other than honorable conditions  (UOTHC) discharge be 
upgraded to honorable. 

The administrative discharge board proceeding violated his rights 
to due process because  they  were  conducted  in a  fundamentally 
unfair  manner. 
The  government  did  not  establish  by  a 
preponderance of  the  evidence  that  the  urine  that  was  tested- 
contained  more  than  15  nanograms  per  milliliter  (ng/ki> of 
marijuana metabolites.  The  sample that was tested did not have 
his social security number assigned to it and he contends that 
the  sample was  not  his.  He  feels that  the  character of  his 
discharge was  unduly  harsh  and  failed  to  consider his  entire 
military record. 
Applicant's  complete submission is attached at Exhibit A. 

t 

STATEMENT OF FACTS: 

On 4 Aug 70, the applicant enlisted in the 
Air National 
Guard  (ANG) Reserve  for a period  of  six years in the grade of 
airman basic.  He continuously reenlisted.  His last reenlistment 
was on 1 Feb 88  for a period of six years in the grade of staff 
sergeant. 
There  are  no Airman  Performance Reports  (APRs) in  applicant's 
records. 
The  Chief,  Master  Records  Management  Division, 
indicated that all efforts to locate the APRs or microfiche have 
been exhausted. 
The applicant's  record indicates that  in Apr  89, he provided a 
urine sample as part  of  a random urinalysis.  His urine sample 
was placed in a bottle that did not accurately reflect his social 
security  number  (one digit  was  recorded  incorrectly)  and  t h e  

f 

AFBCMR 95-01540 

sample was mailed for testins.  The samde was tested bv the Air 

Force Testing Laboratory (AFCTL) , 1 , where it was 

.

2 

~~ 

.

 

found  to  contain  the  metabolite  THC  found  only- in  marijuana. 
Specifically, the  sample  contained  THC  in  a  quantity  of  32.6 
ng/ml which exceeds the Department of Defense  (DOD) cutoff level 
of 15 ng/ml. 
On 21 Dec 89, at the applicant's  request, the sample was retested 
by  Eastern  Laboratories,  an  independent  laboratory..  Eastern 
Laboratory  found  13.4  ng/ml  of  THC.  AFPC/JA  states that  THC 
marijuana  has  a  half-life  in  urine  samples.  It  breaks  down 
resulting in lower readings as time progresses; thus, the finding 
of less than the DOD cutoff level in December does not indicate 
an absence of THC at above the DOD cutoff level in April. 
On  3-4 Mar  90,  an  administrative  discharge  baard  was  held  to 
determine whether the applicant used marijuana  in contravention 
of ANGR  39-10, paragraph 8-17, and, if  so,  whether and in what 
manner he should be discharged.  The board found that on or about 
8 Apr  89,  the applicant used marijuana.  In addition, the board 
found that he was subject to discharge due to drug abuse and the 
board  recommended  that  he. be  discharged  because  of  misconduct 
with an under other than honorable conditions discharge. 
On 16 Sep 91, the Assistant Adjutant General concurred with the 
Tindings of the administrative discharge board that the aps-licant- 
used  illegal drugs, to wit:  marijuana, and accordingly, should 
be  discharged  with  an  under  other  than  honorable  conditions 
discharge. 

On 19 Mar 92, the applicant was discharged from the New York ANG 
pursuant  to ANGR  39-10  (Under Other Than Honorable)  for use  of 
marijuana  (drug abuse) in the grade of  staff sergeant.  He was 
credited with 13 years, 2 months, and 6 days of service for pay. 

AIR FORC E EVALUATIO N: 
The Chief, Readiness &  Special Actions Office, ANG/MPPU, reviewed 
this application and indicated that, although ANGR 39-10 provides 
for honorable characterization even for misconduct, violation of 
the  trust  bestowed  to  a  noncommissioned  officer  (NCO)  is  a 
serious  offense  and  an  honorable  characterization  does  not 
accurately reflect  that  violation  of  trust.  Evidence  in  this 
case  does  not  require  an  honorable  discharge  be  provided, 
especially  when  weighted  against  ANGR  39-10,  Chapter 1, 
Section C. 
The  applicant's  contentions  have  not  been 
substantiated.  The urine sample was properly admitted, despite 
the  one  digit  error  in  the  social  security  number  and  the 
specimen showed a chain of  custody, a lab accession number and 
applicant's initials on the label.  Therefore, the specimen was 
properly admitted as evidence. 

2 

# .

 

AFBCMR 95-01 540 

In reviewing the applicant's  case file, MPPU noted several items 
of  concern.  The Legal Advisor rejected an instruction proposed 
by  the  applicant's  counsel  that  the  board  could  recommend  an 
honorable or general discharge based on its consideration of the 
applicant's service record.  It was arguably an error not to have 
informed the board  that  it could recommend a different type of 
discharge based on the applicant's  service record.  The question 
is whether the error was reversible.  MPPU recommends' denial of 
the  applicant's  request  because  the  board  members 'had several 
sources from which they should have known that a characterization 
better than a UOTHC discharge could be  recommended.  Therefore, 
they do not feel that the Legal Advisor's refusal to instruct the 
board  on  the  discharge  characterization  options  constitute 
reversible error, 
A  complete  copy  of  the  Air  Force  evaluation  is  attached  at 
Exhibit C. 

APPLICAN TIS RE VIEW OF AIR FORCE E VALUATIO8: 
The  applicant  reviewed  the  Air  Force  evaluation  and  indicated 
that he disagrees with their findings.  He states that, by their 
own admission, they noted several items of concern, notably the 
question  as  to  whether  the  error  regarding  the  Legal  Advisor 
rejecting an instruction proposed by his counsel that thx board 
could recommend an honorable or general discharge based  on its 
consideration of  his  service  record  and  whether  the  error was 
reversible.  He states that the error is reversible which is the 
reason for his appeal.  In today's world, any errors having to do 
with a social security number and a urine specimen are grounds to 
have the sample disregarded. 
Applicant's complete response is attached at Exhibit E. 

* 

b 

ADDITIONAL AIR FORCE EVALUATION: 

The  Senior  Attorney-Advisor,  AFPC/JA,  also  reviewed  this 
application  and  indicated  that  the  applicant's  entire military 
record was available and was considered by the board.  They are 
focusing  on  the  one  allegation  which  they  believe  clearly 
constitutes an error.  The legal advisor was requested to give an 
appropriate instruction informing the members that honorable and 
general  (under  honorable  conditions)  characterizations  were 
options that the board  could recommend.  The available evidence 
establishes the following: 

(1)  the  legal  advisor  declined  to  give  the  requested 

instruct ion, 

3 

< .

 

AFBCMR 95-0 1540 

(2)  the  requested  instruction  was  consistent  with  the 

regulation (ANGR  39-10, paragraph 1-6), 

( 3 )   the  information  in  the  requested  instruction  was 

available to the board members through other sources, and, 

5 

(4)  the  defense  counsel had  the opportunity to  argue  that 

honorable and general discharges were available, 
In JA's  opinion, it was clear error for the legal advisor not to 
advise  the  board  members  that  discharges  under  honorable  or 
general  conditions were  authorized.  While  there  were  several 
sources from which the board should have known this information, 
the source which normally will have the greatest influence on the 
board  members-and  upon  which  they  understandably  rely-is  the 
legal  advisor.  Under  these  circumstances,  therefore,  JA  is 
unable  to  say that  the  error  d i d   not  affect  the  character of 
applicant's  discharge.  However,  at  the  same  time,  they  are 
equally unwilling to concede that  the characterization of under 
other than honorable conditions was unwarranted.  Normally, the 
most  appropriate discharge in a misconduct  case is under other 
than honorable conditions.  However, if after eFamination of all 
the evidence and applicant's  complete military record, the Board 
concludes  applicant's  prior  honorable  service  outweighs  his 
misconduct, an upgrade would be appropriate.  In JA's  view, the 
applicant's service was not sufficient to overcame his misconduct 
to  a  degree  that  would  support  an  honorable  characteri2ation.- 
They recommend the case be  referred to ANGB/JA  for comment and 
upon receipt of an advisory from that agency, recommend the Board 
weigh applicant's  good service against the conduct for which he 
was discharged to determine appropriate service characterization. 
In  any  event,  they  recommend  that  the  Board  not  upgrade 
applicant's service characterization to honorable. 

,, 

b 

A  complete  copy  of  the  additional  Air  Force  evaluation  is 
attached at Exhibit F. 

APPLICANT'S REVIEW OF ADDITIONAL AIR FORCE EVALUATION: 
The  applicant reviewed  the additional Air  Force evaluation and 
indicated that  he  had  some  14 years of  honorable service with 
both the Air Guard and Coast Guard Reserve with the citations and 
service pins to justify it at the time of this incident.  All his 
supervisors  and  his  commander  came  forward  to  attest  to  his 
honorable service record.  In essence, AFPC/JA  did  not  address 
the fact that he was not given a fair trial; there was no proof 
or  evidence  that  he  was  deserving  of  an  other  than  honorable 
discharge; and, errors committed deprived him of a fair trial. 
Applicant's  complete response is attached at Exhibit H. 

4 

AFBCMR 95-0 1540 

W D  I TI ONA L AIR FORCE EVALUATION: 
The Chief Counsel, National  Guard Bureau, NGB-JA, reviewed this 
application  and  indicated  that,  in  reference  to  the  conflict 
noted  between  the  advisories  of  AFPC/JA  and  ANG/MPPU,  NGB-JA 
suspects this is in reference to the firm stance of ANG/MPPU  that 
the  UOTHC  should  be  conf inned,  notwithstanding  the  legal 
advisor's  error.  NGB-JA concurs with  the view of AFPC/JA  that 
;  the  error  should  cause  the  Board  to  review  the  applicant's 
service record and weigh  it, pursuant  to Chapter 1, Section C, 
paragraphs  1-6, against his misconduct  to determine whether any 
relief should be granted.  NGB-JA reaffirms their belief that the 
legal advisor committed error in refusing to instruct the board 
on  the  possibility  that  it  could  vote  for  a  characterization 
better  than  UOTHC  and  also  reaffirm  their  opinion  that  the 
evidence  in  this  case  does  not  warrant  an  upgrade  in  service 
characterization.  In an action before the Board, the burden is 
on the applicant to provide evidence to support a finding of the 
existence  of  a  probable  material  error  or  injustice.  NGB-JA 
believes the evidence of  record has not carried this burden on 
the  issue  of  characterization.  The  Board  can  decide  whether 
applicant's  service  characterization  should  be  sustained  as  a 
UOTHC discharge, upgraded to general, under honorable conditions, 
or upgraded to honorable. 
A  complete copy of  the Air  Force evaluation, with  an attached 
legal  opinion  from  the  Administrative  Law  Branch, NGB-JA,  is 
attached at Exhibit I. 

P 

APPLICAN T'S  REVIEW OF ADDITIONA L AIR FORCE  EVALUATION: 
A  copy of  the additional Air Force evaluation was  forwarded to 
applicant and counsel on 21 Jan 98.  However, as of this date, no 
response has been received by this office. 

THE BOARD CONCLUDES THAT: 

~~~ 

~- 

~ 

The applicant has exhausted all remedies provided by existing 

1. 
law or regulations. 
2.  The application was timely filed. 
3.  Insufficient  relevant  evidence 
has  been  presented  to 
demonstrate the existence of probable 
error or injustice.  After 
a  thorough  review  of  the  evidence 
of  record  and  applicant's 
submission, we are not persuaded that 
his UOTHC discharge should 
His  contentions  are  duly  noted; 
be  upgraded  to  honorable. 
however, an  administrative discharge  board  determined  that  the 
applicant  used  marijuana  and  h i s   discharge  was  based  on  a 

5 

. .  

AFBCMR 95-01 540 

positive urinalysis for marijuana.  While the applicant believes 
his rights to due process were violated  (i .e., the legal advisor 
rejected  an  instruction  proposed  by  his  counsel  that  the 
administrative  board  could  recommend  an  honorable  or  general 
discharge based on its consideration of his service record; that 
there was a discrepancy due to a one digit error in the social 
security number; and that the government did not establish by the 
preponderance  of  the  evidence-  that  the  urine  tested-  contained 
more  than 15 ng/nl of  marijuana metabolites) I  we disagree.  In 
this  respect, it  appears  that  the  specimen  showed  a chain of 
custody, a lab accession number and applicant's  initials on the 
label despite the one digit error in the social security number. 
While the legal advisor failed to advise the board members that 
discharges under general or honorable were authorized, we believe 
that the applicant's defense counsel had the opportunity to argue 
that a characterization more  appropriate than a UOTHC  could be 
recommended.  In addition, the  sample  contained  a  quantity  of 
32.6 ng/nl which exceeded the DOD cutoff level of 15 ng/ml.  In 
view of  the  foregoing, the  applicant has  failed to sustain his 
burden  that  he  has  suffered  either  an  error  or  an  injustice. 
Therefore, we find no compelling basis to recommend granting the 
relief sought. 
4.  Although the applicant has provided  some Btatements at  the 
time he was in the service indicating he was an excellent worker, 
he was dedicated to his responsibilities and his work quality was 
exemplary,  the  Board  finds  these  statements  insufficiznt  to 
warrant  an upgrade  of  his  discharge  on  the basis  of  clemency. 
The  applicant's  records  lack  information  concerning  service, 
L e . ,  APRs,  awards, etc.  If he can substantiate his quality of 
service  and  show  that  a  major  portion  of  his  enlistment  was 
honorably fulfilled, the Board would be willing to reevaluate his 
application.  We cannot, however, recommend approval based on the 
current evidence of record. 
5.  The documentation provided with this case was sufficient to 
give the Board a clear understanding of the issues involved and a 
personal  appearance, with  or  without  counsel,  would  not  have 
materially added to that understanding.  Therefore, the request 
for a hearing is not favorably considered. 

, 

* 

THE BOARD DETERM INES THAT: 
The  applicant be  notified  that  the  evidence presented  did  not 
demonstrate  the  existence  of  probable  material  error  or 
injustice; that  the  application  was  denied  without  a  personal 
appearance; and  that  the application will  only be  reconsidered 
upon  the  submission of  newly  discovered  relevant  evidence  not 
considered with this application. 

6 

- -  

1

.

 

AFBCMR 95-01 540 

The following members of the Board considered this application in 
Executive  Session on  2 June  1998,  under  the  provisions  of  Air 
Force Instruction 36-2603: 

Mr. LeRoy T. Baseman, Panel Chaik 
Mr. Joseph G. Diamond, Member 
Ms. Peggy E. Gordon, Member 
Mrs. Joyce Earley, Examiner (without vote) 

The  following documentary evidence was considered: 

Exhibit A. 
Exhibit B . 
Exhibit C. 
Exhibit D. 
Exhibit E. 
Exhibit F. 
Exhibit G. 
Exhibit H. 
Exhibit I. 
Exhibit J. 

DD Form 149, dated 30 Jun 95, wlatchs. 
Applicant's Master Personnel Records. 
Letter, ANG/MPPU, dated 7 Mar 97. 
Letter, AFBCMR, dated 7 Apr 97. 
Letter fr applicant, dated 15 Apr 97. 
Letter, AFPC/JA, dated 5  Sep 97, 
Letter, AFBCMR, dated 15 Sep 97. 
Letter fr applicant, dated 2 Oct 97. 
Letter, NGB-JA, dated 12 Dec 97, w/atch. 
Letter, AFBCMR, dated 21 Jan 98, 

LeROY T .   BASEMAN 
Panel Chair 

I 

7