RECORD OF PROCEEDINGS
             AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS


IN THE MATTER OF:      DOCKET NUMBER:  00-02006
            INDEX CODE:  111.00,126.03

            COUNSEL:  NONE

            HEARING DESIRED:  NO

_________________________________________________________________

APPLICANT REQUESTS THAT:

1.    The Enlisted Performance  Report  (EPR)  rendered  for  the  period  1
October 1998 to 30 September 1999, be declared void or upgraded.

2.    The punishment imposed upon him under  Article  15,  Uniform  Code  of
Military Justice (UCMJ), dated 22 May 2000 be set aside.

_________________________________________________________________

APPLICANT CONTENDS THAT:

He was given a “2” EPR rating because of being suspected of unlawful use  of
marijuana in June 1999.  On 15 March 2000 he was acquitted of  this  charge.
He was given an Article 15 for the use of a hempseed  oil  product  that  is
sold on the open market in health supplement  establishments  all  over  the
United States.  He was not aware when he took the capsules that the  use  of
hempseed oil was prohibited by the Air Force.   The  Air  Force  Instruction
that prohibits the use of hempseed oil came into effect in January 1999.

He states that the rating  he  received  is  extremely  unfair,  unjust  and
totally  prejudicial  against  him  personally  and   professionally.    The
performance feedback that applies to his rating  showed  no  evidence  of  a
problem with his performance.  He was led to believe that his  rating  would
be the same as his previous two EPRs (both were overall “5s”).  At  no  time
during the rating period  was  he  informed  that  his  performance  was  in
question.

In support of his appeal, the applicant provided a  personal  statement,  AF
Form 1359,  Report  of  Result  of  Trial,  the  contested  EPR  closing  30
September 1999, Performance Feedback Worksheet, dated 21 June  1999,  and  a
Memo, Response to Referral EPR, dated 12 January 2000.

Applicant’s complete submission is attached at Exhibit A.

_________________________________________________________________

STATEMENT OF FACTS:

The Applicant is currently serving in the Regular Air Force in the grade  of
staff sergeant with a date of rank and effective date of 1 May 1995.

The EPR closing 30 September 1999, which was  a  referral  report,  rendered
him ineligible for promotion consideration  for  cycle  00E6  in  accordance
with AFI 36-2502, Airman Promotion Program, Table 1.1, Rule 22.

On 14 and 15 March 2000, the applicant was tried and found not guilty  by  a
Special Court Martial for wrongful use of marijuana.

On 22 May 2000, applicant was notified of his commander's intent  to  impose
nonjudicial punishment upon him for ingesting  hempseed  oil  or  a  product
made with hempseed oil.

On 26 May 2000, after consulting with counsel, applicant  waived  his  right
to a trial by court-martial, requested a personal appearance  and  submitted
a written presentation.

On 30 May 2000, he was  found  guilty  by  his  commander  who  imposed  the
following punishment:  Reduction to the grade of  senior  airman,  suspended
until 27 November 2000,  after  which  time  it  will  be  remitted  without
further action, unless sooner vacated; forfeiture of $50 pay per  month  for
two months, and a reprimand.

Applicant did not appeal the punishment.  The Article 15 was  filed  in  his
Unfavorable Information File (UIF).

EPR profile since 1992 reflects the following:

      PERIOD ENDING    EVALUATION OF POTENTIAL

            30 Sep 92        5
            30 Sep 93        5
            30 Sep 94        5
            30 Sep 95        4
            30 Sep 96        5
            30 Sep 97        5
            30 Sep 98        5
      *     30 Sep 99        2
            31 Aug 00        5

* Contested report.

_________________________________________________________________

AIR FORCE EVALUATION:

The Chief, Military Justice  Division,  Air  Force  Legal  Services  Agency,
AFLSA/JAJM, reviewed  this  application  and  states  that  the  applicant’s
contention is without merit.  AFI 44-121  was  published  22  January  1999.
The instruction specifies that violation of paragraph 3.5.5., constitutes  a
violation of Article 92, UCMJ, as a failure to obey a lawful  general  order
or regulation.  Under Article 92  an  offense  occurs  if  there  is  lawful
general order or regulation in effect.  The accused has a duty  to  obey  it
and there is no requirement to prove that the accused  knew  of  the  order.
Moreover, it is not a defense if an accused proves that he did not  know  of
the prohibition.  There is no error in this case with regard to the  Article
15.  The applicant is guilty by his own admission and there is  no  evidence
provided by the applicant which indicates relief is warranted.

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

The Chief, Inquiries/AFBCMR Section, Enlisted Promotion &  Military  Testing
Branch, AFPC/DPPPWB, reviewed this application and states  that  they  defer
to the recommendations of AFPC/DPPPAB and AFLSA/JAJM.

A complete copy of the Air Force evaluation, with attachments,  is  attached
at Exhibit D.

The  Chief,  Appeals  and  SSB  Branch,  Directorate  of  Personnel  Program
Management, AFPC/DPPPAB, also reviewed this application and states that  the
applicant believes the contested EPR’s ratings  are  not  commensurate  with
feedback he received during the reporting period.   The  feedback  worksheet
is dated 21 June 1999, three months before the closeout of the EPR.  AFI 36-
2403, Chapter  1  directs  evaluators  to  “Consider  the  significance  and
frequency of incidents (including isolated instances of poor or  outstanding
performance) when assessing  total  performance.”   Any  incident  occurring
during the reporting period might affect how an evaluator would fill  out  a
performance feedback form.  Obviously, in  the  applicant’s  situation,  the
evaluators’ perceptions of his performance and behavior  changed  after  his
mid-term feedback session.   In  addition,  since  the  Article  15  is  not
specifically mentioned in the contested EPR, the disposition of the  Article
15 has no effect on the EPR’s validity.  Since  the  EPR  is  not  factually
incorrect, there is no reason to either void or upgrade the  report.   Based
on the evidence provided they recommend denial of applicant’s request.

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

_________________________________________________________________

APPLICANT'S REVIEW OF AIR FORCE EVALUATION:

On 3 November 2000, copies of the Air Force evaluations  were  forwarded  to
the applicant for review and response within thirty (30) days.  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.    Sufficient relevant evidence has been  presented  to  demonstrate  the
existence of probable error or injustice.  After  reviewing  the  supporting
documentation submitted by the applicant,  the  majority  of  the  Board  is
persuaded that the Article 15 and contested  report  are  unduly  harsh  and
should be removed from his records.  We note that  when  the  applicant  was
found not guilty by a Special Court-Martial on 15 March  2000  for  wrongful
use of marijuana, his defense was that he had ingested hempseed  oil,  which
produces the same metabolite as marijuana.  The Board  majority  notes  that
once the applicant was found not guilty by  the  court-martial,  it  appears
that his commander almost immediately served notice of his  intent  to  give
the applicant non-judicial punishment for ingestion  of  the  hempseed  oil.
In the opinion of the Board majority, the applicant’s defense in the  court-
martial proceeding which was  used  to  punish  him  under  Article  15  was
unjust.  It’s true that AFI 44-121, which was published on 22 January  1999,
prohibits the use of hempseed oil; however, we cannot determine when or  how
that  information  was  disseminated  to  the  military  community.    While
ignorance of a regulation is not an excuse for non-compliance, the  majority
of the Board finds insufficient evidence  that  the  applicant  intended  to
disobey a lawful order.  Rather,  it  appears  to  the  majority,  that  the
applicant simply used a product commonly found in health food  stores  as  a
part of his body building regimen.  Only after being given  the  Article  15
did he realize that the hempseed oil was prohibited from use  by  Air  Force
members.  It would appear to the majority that the  command  overreacted  to
the situation and are  convinced  that  the  Article  15  was  inappropriate
punishment for violation a policy of  which  the  applicant  was  apparently
totally unaware.  The Board majority believes that counseling the  applicant
about the prohibition of this substance would have sufficed in this  matter.
 Clearly, if the applicant had continued to  abuse  the  hempseed  oil,  the
commander would have been justified in giving  him  nonjudicial  punishment.
Further, it is  clear  to  the  majority  that  the  Article  15  negatively
influenced the applicant’s evaluators on the contested  performance  report.
With the exception  of  the  Article  15,  the  majority  finds  no  further
documentation which would support an overall  “2”  rating.   Therefore,  the
contested  report  is  not  an  accurate  assessment  of   the   applicant’s
performance during the contested time period and should be removed from  the
applicant’s records.  In view of  the  above,  the  majority  of  the  Board
recommends the contested EPR be declared void and removed from  his  records
and the Article 15,
dated 22 May 2000 be set aside.  In addition, the majority recommends he  be
provided  supplemental  promotion  consideration  to  the  grade  of  master
sergeant for cycle 00E6.

_________________________________________________________________

THE BOARD RECOMMENDS THAT:

The pertinent military records of the Department of the Air  Force  relating
to APPLICANT, be corrected to show that:

      a.    The Article 15, Uniform Code of Military Justice,  initiated  on
22 May 2000, and imposed on 30 May 2000, be set aside and expunged from  his
records, and all rights, privileges and property of which he may  have  been
deprived be restored.

      b.    The Enlisted Performance Report, AF Form 910, rendered  for  the
period 1 October 1998 through  30  September  1999,  be  declared  void  and
removed from his records.

It  is  further  recommended  that  applicant   be   provided   supplemental
consideration for promotion to the grade of master sergeant  beginning  with
cycle 00E6.

If AFPC discovers any adverse factors during or subsequent  to  supplemental
consideration that are separate and  apart,  and  unrelated  to  the  issues
involved in  this  application,  that  would  have  rendered  the  applicant
ineligible for the  promotion,  such  information  will  be  documented  and
presented to the  board  for  a  final  determination  on  the  individual’s
qualification for the promotion.

If  supplemental  promotion  consideration  results  in  the  selection  for
promotion to the higher grade, immediately after such promotion the  records
shall be corrected to show that he was promoted to the higher grade  on  the
date of rank established by  the  supplemental  promotion  and  that  he  is
entitled to all pay, allowances, and benefits  of  such  grade  as  of  that
date.

_________________________________________________________________

The following members of the Board considered this application in  Executive
Session on 10 January 2001, under the provisions of AFI 36-2603:

            Mr. Teddy L. Houston, Panel Chair
            Mr. Grover L. Dunn, Member
            Ms. Marilyn Thomas, Member

The majority of the Board voted, to correct  the  records,  as  recommended.
Mr. Dunn voted to deny the application, but does  not  desire  to  submit  a
minority report.  The following documentary evidence was considered:

   Exhibit A.  DD Form 149, dated 21 Jul 00, w/atchs.
   Exhibit B.  Applicant's Master Personnel Records.
   Exhibit C.  Letter, AFLSA/JAJM, dated 25 Sep 00.
   Exhibit D.  Letter, AFPC/DPPPWB, dated 6 Oct 00, w/atchs.
   Exhibit E.  Letter, AFPC/DPPPAB, dated 24 Oct 00.
   Exhibit F.  Letter, SAF/MIBR, dated 3 Nov 00.




                 TEDDY L. HOUSTON
                 Panel Chair
AFBCMR 00-02006





MEMORANDUM FOR THE CHIEF OF STAFF

      Having received and considered the recommendation  of  the  Air  Force
Board for Correction of Military Records and under the authority of  Section
1552, Title 10, United States Code (70A Stat 116), it is directed that:

      The pertinent military records of the  Department  of  the  Air  Force
relating to, be corrected to show that:

             a.    The  Article  15,  Uniform  Code  of  Military   Justice,
initiated on 22 May 2000 and imposed on 30 May 2000, be, and hereby is,  set
aside and  expunged  from  his  records,  and  all  rights,  privileges  and
property of which he may have been deprived be restored.

            b.   The Enlisted Performance Report, AF Form 910, rendered  for
the period 1 October 1998 through 30 September  1999,  be,  and  hereby  is,
declared void and removed from his records.

      It is further directed that he be provided supplemental  consideration
for promotion to the grade of master sergeant beginning with cycle 00E6.

      If  AFPC  discovers  any  adverse  factors  during  or  subsequent  to
supplemental consideration that are separate and  apart,  and  unrelated  to
the issues involved in  this  application,  that  would  have  rendered  the
applicant ineligible for the promotion, such information will be  documented
and presented to the board for a final  determination  on  the  individual's
qualification for the promotion.

      If supplemental promotion consideration results in the  selection  for
promotion to the higher grade, immediately after such promotion the  records
shall be corrected to show that he was promoted to the higher grade  on  the
date of rank established by  the  supplemental  promotion  and  that  he  is
entitled to all pay, allowances, and benefits  of  such  grade  as  of  that
date.







            JOE G. LINEBERGER
            Director
            Air Force Review Boards Agency