RECORD OF PROCEEDINGS
         AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS

IN THE MATTER OF:      DOCKET NUMBER:  99-02599
            INDEX NUMBER:  A66.00

      XXXXXXXXXXXX     COUNSEL:  William J. Holmes
XXX-XX-XXXX HEARING DESIRED:  Yes

___________________________________________________________________

APPLICANT REQUESTS THAT:

His administrative discharge  under  AFI  36-3209  for  misconduct,
commission of a serious offense, drug abuse, be overturned and  set
aside and that he be reinstated to active duty and be permitted  to
retire.

___________________________________________________________________

APPLICANT CONTENDS THAT:

The administrative discharge board that discharged him from service
was not conducted in accordance with the applicable procedures  and
rules of law or fundamental fairness.

The  applicant’s  counsel  alleges  that  a  letter  he   submitted
detailing the many serious deficiencies and errors committed during
the  hearing  were  not  forwarded  to  the  appropriate  reviewing
authority.

The  applicant’s  counsel  also  alleges  that  the  findings   and
recommendations of the board are  factually  incorrect  and  flawed
because of substantial legal  errors  on  the  part  of  the  legal
advisor which totally skewed the impartial fact finding process  of
the board.

The applicant’s counsel further alleges that the applicant was  not
allowed  to  present  highly  relevant  and  material  evidence  of
deliberate fabrication and alteration of laboratory testing, which,
along with other available evidence, should  have  been  more  than
enough to convince the board members that  the  applicant  did  not
intentionally use marijuana in 1995 or at any time  during  his  19
year Air Force career.

Applicant’s complete submission is at Exhibit A.

___________________________________________________________________

STATEMENT OF FACTS:

The applicant served on active duty in the Regular Air  Force  from
28 Apr 78 to 27 Jan 82.  He enlisted in the Air Force  Reserves  on
28 Jan 82.  According to a copy of Reserve Order A-XXX provided  by
the applicant,  he  was  discharged  from  the  Air  Force  Reserve
effective 22 Oct  96  with  a  general  discharge  under  honorable
conditions.

The applicant was discharged  as  a  result  of  the  findings  and
recommendations of an administrative discharge board.   Records  of
the  administrative  discharge  board  are  not  available  through
official  channels.   A  copy  of  the   administrative   discharge
proceedings provided by the applicant reflect that  the  board  was
convened at Robins Air Force Base on 18 & 19 Jun 96 for the purpose
of determining whether the applicant should be discharged from  the
Air Force Reserve under the provisions of Air Force Instruction 36-
3209, paragraph 3.21.32 for misconduct,  commission  of  a  serious
offense, drug abuse.

The board found that by a preponderance of the  evidence  that  the
applicant did wrongfully use marijuana as a  controlled  substance.
The board further found that the drug abuse was  a  departure  from
the applicant’s usual and customary behavior and the drug abuse did
not involve distribution.  As a result of its findings,  the  Board
recommended that the applicant be  separated  from  the  Air  Force
Reserve and issued a general discharge certificate.

On 11 Aug 96, the Vice Commander of the Air Force Reserve  accepted
the findings and recommendations of the Board  and  recommended  to
the Secretary of the Air Force (SECAF) that the applicant be denied
lengthy service probation.  On 20 Sep 96, the SECAF  directed  that
the applicant’s  administrative  discharge  be  executed  and  also
denied lengthy service probation.

___________________________________________________________________

AIR FORCE EVALUATION:

The  Air  Force  Reserve  Command  Director  of  Military  Justice,
ARPC/JAJ, evaluated this application.  They recommend denial of the
applicant’s request because no error or injustice has occurred.

ARPC/JAJ responded to the contentions of  the  applicant’s  counsel
point by point.  In reference to  his  contention  that  a  letter,
detailing the serious deficiencies and errors committed during  the
board hearing, was not forwarded to the convening  authority,  they
stated that they no longer have any record of the letter since  all
their  files  relating  to  the  applicant’s  case  were  routinely
destroyed at the end of 1998.

A complete copy of the evaluation is at Exhibit C.

___________________________________________________________________

ADDITIONAL AIR FORCE EVALUATION:

The Board initially considered this application on 10  August  2000
and deferred making a final decision until an  additional  advisory
opinion could be provided addressing the negative  results  of  the
civilian urinary drug screening accomplished on the applicant on 14
August 1995.  The Air Force Reserve Command  Director  of  Military
Law, AFRC/JAM, completed an additional evaluation  to  address  the
issue raised by the Board.  They stated that the specimen  provided
by the applicant during the 14 Aug 95 test  was  collected  over  a
month after the specimen that tested positive and  upon  which  the
discharge  action  was  based.   The  legal  advisor  admitted  the
evidence of the test not as proof that the test result  upon  which
the discharge action was based was wrong  or  questionable  but  as
evidence the applicant had not used drugs prior to the test by  the
civilian physician.  The presence of drugs in one’s system is  time
sensitive with the concentration of the drug metabolites  declining
over time.  Therefore, the results of a second test, not  involving
a  specimen  collected  contemporaneously  with  the   first,   are
irrelevant.

The complete evaluation is at Exhibit D.

___________________________________________________________________

APPLICANT'S REVIEW OF AIR FORCE EVALUATION:


The applicant’s counsel responded to the Air Force  evaluation  and
stated that the evaluation is both factually and legally  incorrect
and does not support the inappropriate and illegal manner in  which
the applicant’s administrative discharge board was conducted.

The applicant’s counsel makes his argument in 12  paragraphs,  both
to rebut the Air Force’s evaluation and further  point  out  errors
that occurred during the Board process.  He also attached a copy of
the  letter  he  contends  was  not  forwarded  to  the   convening
authority.  He states that the letter was not  forwarded  with  the
case to the convening authority for action in an attempt to “cover-
up” the fundamental errors made during the board.

The applicant’s counsel  states  that  based  on  all  the  reasons
outlined  in  his  response  to  the  Air  Force  evaluation,   the
recommendations and findings of the administrative discharge  board
and the discharge which resulted therefrom must be disapproved  and
overturned  because   the   board   was   both   procedurally   and
substantively defective.

The complete response from the applicant’s counsel is at Exhibit F.

___________________________________________________________________

APPLICANT’S REVIEW OF ADDITIONAL AIR FORCE ADVISORY:

The  applicant’s  counsel  also   responded   to   the   additional
evaluation.  Counsel states that the additional evaluation  is  not
substantially different from the original.  Counsel indicates  that
the comments previously submitted in  the  initial  application  as
well  as  the  response  to  the  original  evaluation  more   than
adequately convey the applicant’s position  on  the  issue  of  the
civilian drug test.  Counsel further states that based on  all  the
reasons set forth in their earlier submissions, the recommendations
and  findings  of  the  administrative  discharge  board  and   the
discharge  that  resulted  therefrom  must   be   disapproved   and
overturned  because   the   board   was   both   procedurally   and
substantively defective.

The complete response from the applicant’s counsel is at Exhibit G.

___________________________________________________________________

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 probable error or injustice.  We  took
notice of the applicant’s complete submission in judging the merits
of the case; however, we agree with the opinion and  recommendation
of the Air Force office of primary responsibility and  adopt  their
rationale as the basis for our conclusion that  the  applicant  has
not been the victim of an error or injustice.   Therefore,  in  the
absence of evidence to the contrary, we find no compelling basis to
recommend granting the relief sought in this application.

4.  The applicant's case is adequately documented and  it  has  not
been shown that a personal appearance with or without counsel  will
materially  add  to  our  understanding  of  the  issues  involved.
Therefore, the request for a hearing is not favorably considered.

___________________________________________________________________

THE BOARD DETERMINES 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.

___________________________________________________________________

The following members of the Board considered this  application  in
Executive Session on 10 August 2000 and 18 December 2000, under the
provisions of AFI 36-2603:

      Mr. Patrick R. Wheeler, Panel Chair
      Mr. Richard M. McCormick, Member
      Mr. Jackson A. Hauslein, Member

The following documentary evidence was considered:

    Exhibit A.  DD Form 149, dated 6 Oct 99, w/atchs.
    Exhibit B.  Applicant's Master Personnel Records.
    Exhibit C.  Memorandum,HQ AFRC/JAM, dated 10 Dec 99.
    Exhibit D.  Memorandum, HQ AFRC/JAM, dated 28 Sep 00.
    Exhibit E.  Letter, SAF/MIBR, dated 7 Jan 00.
    Exhibit F.  Letter, AFBCMR, dated 19 Oct 00.
    Exhibit G.  Letter, Applicant’s Counsel, dated 26 Jan 00,
                w/atch.
    Exhibit H.  Letter, Applicant’s Counsel, dated 8 Nov 00.




                                   PATRICK R. WHEELER
                                   Panel Chair