RECORD OF PROCEEDINGS

             AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS


IN THE MATTER OF:      DOCKET NUMBER:  99-03173
                 INDEX CODE:  110.02; 110.03


                 COUNSEL:  LOUIS N. HIKEN


                 HEARING DESIRED:  YES
_________________________________________________________________

APPLICANT REQUESTS THAT:

The  Board  set  aside  her  dismissal  and  grant  her  an  honorable
discharge, based on probation and rehabilitation.

_________________________________________________________________

APPLICANT CONTENDS THAT:

Under regulations and DoD directives in effect at the time, she should
have  been  given  probation  and  rehabilitation  for  minor  use  of
methamphetamines.  Instead of properly applying DoD 1010.4  (32 C.F.R.
62.4) and granting  her  retirement,  the  court-martial  and  command
applied a zero tolerance policy toward her behavior.

When it was discovered that she suffered from a  sleep  disorder,  and
had self-medicated for an extensive period of time, the matter  should
have been reopened for  a  Medical  Evaluation  Board  (MEB),  with  a
discharge based upon health considerations.  After over  19  years  of
honorable service to her country and the Air Force,  she  should  have
been afforded a remedy commensurate with her misconduct.  Her behavior
was neither malicious nor wanton, but was a response to  physical  and
psychological factors beyond her control.  She should not have  to  go
through life characterized as a drug abuser.  Her years of  dedication
and devotion to the Air Force warrant discretionary relief  from  this
Board.

At her court-martial, the members inquired as to the benefits that she
would receive as a dependant of a retired military person.  The  court
erroneously informed the Board that her dismissal would not affect her
benefits.  Not realizing that if she  were  no  longer  married  to  a
retired veteran she  would  no  longer  be  entitled  to  any  of  the
privileges pertaining thereto, the members immediately returned with a
recommendation of dismissal.

The command’s refusal to grant clemency, to initiate  an  MEB,  or  to
grant early retirement in lieu of dismissal constituted  an  abuse  of
discretion.  This Board can and should remedy that decision.

At trial, she was able to present a compelling image of the  exemplary
service she rendered over the previous two decades.  Nonetheless,  she
was found to have tested positive  for  methamphetamine  on  a  random
urinalysis test and admitted  to  having  used  it  on  several  other
occasions.  For legal procedural reasons, the  members  of  the  court
were only informed of a single use of  methamphetamine.   Furthermore,
the members were erroneously  told  that  her  benefits,  if  given  a
dismissal, would not be affected since she would be the beneficiary of
her then husband’s military retirement package.   The  Board  was  not
informed that if she separated from her husband, she  could  lose  all
benefits and privileges from his service, and from her  19-plus  years
of service.

This Board is familiar with the analysis set forth  in  the  Crampton,
Poole, Radillo, Rogers line of cases, to the effect that the policy of
DoD 1010.4 (32 C.F.R. 62.4), in effect at the time,  calling  for  the
granting of probation and rehabilitation to drug abusers who could and
would be rehabilitated, overrode the zero tolerance policy then  being
enforced in each of the military services.  Given the posture  of  the
Poole v. Rourke case as presented to the court,  that  is  the  relief
that should have been imposed on her.

Evidence elicited after completion of the trial indicated not a single
improper use of methamphetamine, but rather an  extensive  history  of
its use to compensate for a sleep disorder associated with stress  and
psychological factors associated with her health.  Given that  lengthy
history of drug use, unknown to the court, one would assume  that  the
dismissal would be a foregone conclusion.  Yet  she  received  neither
the benefits of the  court-martial  version  of  the  facts,  nor  the
benefits of the psychological/medical evaluation that could or  should
have  been  performed   as   an   alternative.    Instead,   she   was
unceremoniously ejected from the service as if the  dismissal  ordered
by the court were appropriate, with  no  consideration  given  to  the
medical basis for the drug use.  The command’s  subsequent  review  of
documents submitted was made with a  review  of  whether  or  not  the
court’s order of dismissal could be  legally  sustained,  rather  than
with an eye toward the equities of the situation.

There  is  no  question  that   an   officer   who   wrongfully   uses
methamphetamines over an extensive period of time warrants  dismissal.
But that dismissal, if it is to be approved, should  be  based  on  an
accurate assessment of the facts  and  circumstances  surrounding  the
offense.  That never took place in this case.

She will never be returned to military duty.  The  question  posed  to
this Board is whether or not she should be  stripped  of  all  of  the
benefits and honors, which should accrue to one who dedicated  such  a
significant portion of her life to serving her country.  She asks that
this Board review her 19-plus years of service to  the  military,  her
awards and commendations and the medical/psychological basis  for  her
drug use, and ameliorate the harshness of her dismissal.

In support, she submits her Petition for Writ of Certiorari  in  which
she questions whether the military  judge  committed  plain  error  by
instructing the members about  collateral  consequences  of  a  court-
martial  conviction,  dated  August  1997;  supporting  documents;   a
statement from her trial attorney, dated 24 October 1994; and  a  copy
of AFLSA/JAJM’s memo concerning final approval of the sentence,  dated
23 March 1998.

A copy of the applicant's complete submission is at Exhibit A.

_________________________________________________________________

STATEMENT OF FACTS:

The applicant had prior enlisted active service from 12 July  1973  to
10 August 1981.  She was  commissioned  as  a  2nd  lieutenant  on  18
December 1982, and entered on active duty on 3 January 1983.  She  was
promoted to captain on 25 December 1986.

The applicant was considered but not selected  for  promotion  to  the
grade of major by the CY93B Major Selection Board, which convened on 6
December 1993.

On 8 February 1994, the applicant was randomly selected for urinalysis
testing.   Her  sample  tested  positive   for   the   methamphetamine
metabolite.  When questioned  by  the  Air  Force  Office  of  Special
Investigations (AFOSI), she confessed to the  use  of  methamphetamine
during  January  1994.   She   also   told   agents   she   had   used
methamphetamines during 1988 and 1989, another stressful period in her
life.

On 18 August 1994, the applicant was found guilty of wrongfully  using
methamphetamines on divers occasions between  1  January  1994  and  8
February 1994.  She was sentenced to dismissal  from  the  Air  Force.
After considering the record of trial and clemency  matters  submitted
by the applicant, on 17 January 1995, the convening authority approved
the  sentence.   On  12  November  1995,  the  applicant  applied  for
retirement.   The  application,   coupled   with   her   court-martial
conviction, triggered an officer  grade  determination  (OGD)  in  the
event the application to retire was approved.  On  12  December  1995,
the applicant’s commander notified  her  that  a  grade  determination
would be done if she was retired and she was given an  opportunity  to
respond.  She submitted a  response  and  supporting  material  on  10
January 1996.   Also  in  January  1996,  the  applicant’s  USSTRATCOM
commander  recommended  that  the  application   for   retirement   be
disapproved, but if approved, that she be retired as a 1st lieutenant.

On 17 June 1996, the United States Court of Criminal Appeals  affirmed
the findings of guilty and the sentence.  On 9 June 1997,  the  United
States Court of Appeals  for  the  Armed  Forces  affirmed  the  lower
court’s decision.

The Secretary of the Air Force Personnel  Council  (SAFPC)  considered
the case on 23 January 1998, and recommended against retirement.   The
SAFPC further recommended that, if the Secretary allowed the applicant
to retire, it should be in the grade of 1st lieutenant.   On  16 March
1998, the SAFPC disapproved the application for  retirement,  approved
the sentence and  ordered  the  dismissal  into  execution.   She  was
subsequently separated on 22 June 1998, by  reason  of  court-martial.
She had served 15 years,  5  months,  and  20  days  of  total  active
commissioned service and 8 years and 29 days  of  total  prior  active
service.

Applicant’s medical records are presumed lost.  Therefore,  the  facts
surrounding her allegation of a  sleep  disorder  cannot  be  verified
(Exhibit B).

_________________________________________________________________

AIR FORCE EVALUATION:

The Military Justice  Division,  AFLSA/JAJM,  reviewed  the  case  and
pointed out that DODD 1010.4, Drug and Alcohol Abuse by DoD Personnel,
and Poole v. Rourke, 779 F.  Supp.  1546  (E.D.  Cal.  1991)  have  no
relevance to the applicant’s case.  DODD 1010.4 contains nothing  more
than DoD policy with regard to drug and alcohol abuse.   It  makes  no
effort to limit the discretion of convening authorities as to  whether
charges should be brought against a member.  Poole v. Rourke  involved
the administrative discharge of an enlisted drug user under AFR 39-10.

The applicant’s allegation with regard to  the  erroneous  instruction
has been heard and rejected by both  appellate  military  courts  that
reviewed her case.  The Court of  Criminal  Appeals  stated  that  the
instruction was basically correct.  The Court of Appeals for the Armed
Forces found no error in the waiver of  any  objection  based  on  the
failure of the applicant’s counsel to enter a timely objection.

The final allegation that the decision  to  approve  and  execute  the
dismissal was an  abuse  of  discretion  is  baldly  asserted  without
justification.   The  punishment  was  legal  and  appropriate.    The
applicant, an officer with almost 20  years  of  service,  could  have
harbored no doubt as to the severity of  her  offense.   The  adjudged
dismissal was an appropriate sentence and the only punishment imposed.
 The applicant provides no clear basis of error  and  no  evidence  of
injustice.  Accordingly, denial is recommended.

A copy of the complete evaluation is at Exhibit C.

_________________________________________________________________

APPLICANT'S REVIEW OF AIR FORCE EVALUATION:

A copy of the evaluation was forwarded to counsel on 11  August  2000,
for review and response within 30 days (Exhibit D).  As of this  date,
no response has been received by this office.

A copy of the retirement in lieu of (RILO) dismissal and officer grade
determination (OGD) accomplished by the Secretary  of  the  Air  Force
Personnel Council was also forwarded to counsel on 2 October 2000, for
review and response within 30 days (Exhibit E).  As of this  date,  no
response has been received by this office.


_________________________________________________________________

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 considered counsel’s
assertion that the decision to prosecute  the  applicant  rather  than
grant clemency  and  allow  her  to  retire  was  improper.   We  also
carefully weighed the allegations of erroneous instruction  and  abuse
of discretion in our deliberations.  However, we find  no  impropriety
in the actions taken against the applicant or in the dismissal.  Given
the seriousness of the applicant’s misconduct, the commander does  not
appear to have acted harshly or improperly in referring the matter  to
trial by court-martial.  In our view, the applicant has  not  provided
persuasive evidence that she has been the victim of injustice, tainted
procedures,  or  an   inappropriate   characterization   of   service.
Therefore, we  find  no  compelling  basis  upon  which  to  recommend
granting the relief sought in this application.

4.  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 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 9 November 2000, under the provisions of  AFI 36-
2603:

                 Mr. Richard A. Peterson, Panel Chair
                 Mr. George Binks, Member
                 Mr. Jackson A. Hauslein, Member

The following documentary evidence was considered:

    Exhibit A.  DD Form 149, dated 21 Nov 99, w/atchs.
    Exhibit B.  Applicant's Master Personnel Records.
    Exhibit C.  Letter, AFLSA/JAJM, dated 31 Mar 00.
    Exhibit D.  Letter, SAF/MIBR, dated 11 Aug 00.
    Exhibit E.  Letter, AFBCMR, dated 2 Oct 00, w/atchs.




                                   RICHARD A. PETERSON
                                   Panel Chair