RECORD OF PROCEEDINGS

         AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS

IN THE MATTER OF:      DOCKET NUMBER:  00-02906
            INDEX NUMBER:

      XXXXXXXXXXXX     COUNSEL: George E. Day

      XXX-XX-XXXX      HEARING DESIRED: Yes

_______________________________________________________________

APPLICANT REQUESTS THAT:

He receive a physical exam and, if he passes, he be commissioned in the
grade of lieutenant colonel with his original date of enlistment.

He be awarded $25,000 per year for 17 years of humiliation  and  stigma
he has suffered ($425,000.00).

He be awarded a cash settlement of $3,000,000.00 for  loss  of  career,
pay, retirement pay, and pain and suffering.

_______________________________________________________________

APPLICANT CONTENDS THAT:

Applicant’s  counsel  submitted  a  three-page  statement  with   seven
attachments that make some of the following contentions:

The applicant was wrongfully separated from the Air Force on    23  Feb
83 on the charge of use of marijuana.  The Air Force learned  on  (sic)
or about 1983 that the marijuana urine test  had  been  inaccurate  and
defective.  Although they were able to contact him in  1999  to  advise
him that he had an honorable, “uncoded” discharge, they never contacted
and advised him that the urine test was bad and that he was entitled to
an “honorable” discharge and to reenlist.   He  would  have  also  been
eligible for employment with the Federal Aviation Administration  (FAA)
during this time at roughly double his Air Force pay.

The applicant is almost 43 years of age and just now equipped with some
college trained job skills that will make him employable again.

If the applicant’s military career had not been interrupted,  he  would
have been eligible for retirement from the Air Force some  three  years
ago and would most likely have been a chief or senior  master  sergeant
(CMSgt, SMSgt) in Air Traffic Control (ATC).

The applicant’s pay as a retired CMSgt would have been  $43,312.00  per
year, as a SMSgt $37, 932.00, plus housing allowance and BAQ.  He would
have also had free  hospitalization,  Base  Exchange,  commissary,  and
other benefits.

The Air Force had a duty to notify  the  applicant  promptly  that  his
urine test was flawed, to purge his records, and to  timely  offer  him
reenlistment and an opportunity to proceed unhampered and unstigmatized
in his career in the  Air  Force  or  with  the  FAA.   The  Air  Force
negligently failed to do so, and  for  that  reason,  it  is  bound  to
provide a remedy for this wrong.

Counsel’s complete submission is at Exhibit A.

_______________________________________________________________

STATEMENT OF FACTS:

The relevant facts pertaining to this application, extracted  from  the
applicant’s military records, are contained in the letter  prepared  by
the appropriate office of the Air Force.  Accordingly, there is no need
to recite these facts in this Record of Proceedings.

_______________________________________________________________

AIR FORCE EVALUATION:

The Senior Attorney-Advisor, Air Force Personnel Center, evaluated this
application and recommends denial of the applicant’s requests.

The case of Cooper v. Secretary of the Air Force involves  a  class  of
U.S. Air Force veterans whose discharges from the Air Force were based,
at least in part, on faulty positive drug  urinalysis  tests  conducted
from Apr 82 through Nov 83.  The Air Force subsequently recognized that
these tests were scientifically and/or  legally  insufficient  and  set
aside their test results.  The parties to this lawsuit entered  into  a
Settlement Agreement in which they agreed to: certify the class covered
by the lawsuit; settle the class’ claims by providing  certain  relief;
and dismiss the suit with prejudice after the members of the class were
given opportunity to raise any objections to the  Settlement  Agreement
and after the Court determined the Settlement  Agreement  to  be  fair,
reasonable and adequate.  The Settlement Agreement specifically  states
that it “does not reflect any statement  or  admission  concerning  the
merits of this action and is evidence merely of its terms.”

The class certified by  the  Court  consists  of  all  U.S.  Air  Force
veterans who were discharged from the Air  Force  based,  at  least  in
part, on positive urinalysis drug tests, conducted from Apr 82  through
Nov 83, whose results the Air Force later set aside, except  for  those
veterans who received relief for such discharge from the AFBCMR or  the
Air  Force  Discharge  Review  Board.   According  to  AFPC/DPPRS,  the
applicant was identified as a putative member of the class.

The Court also certified a subclass, consisting of “each member of  the
class  who  consents  to  waive  whatever  back  pay  entitlement   the
individual may have, if any, except for  those  whose  discharges  were
grounded, in part,  on  their  involvement  in  illegal  drug  activity
separate from any drug use evidenced by a set aside urinalysis,  within
90 days of their last positive  set-aside  urinalysis.”   According  to
AFLSA/JACL, the applicant was identified as a putative  member  of  the
subclass.

The Air Force agreed  to  provide  notice  to  putative  class  members
explaining that the recipient was a member of  the  putative  plaintiff
class, that the recipient would be entitled to certain  corrections  in
his/her military records if the court approved the proposed  Settlement
Agreement; and that the recipient could submit objections to the Courts
approving the Settlement Agreement.  The applicant apparently  received
this notice on or about Nov 99.

The Air Force agreed to take  the  following  actions  for  each  class
member, upon approval of the Settlement Agreement:

        a.  Eliminate all references in  the  former  service  member’s
military  personnel  records  to  urinalysis  test  results  that  were
subsequently set aside.

        b.  Remove all references in such records to  discharges  based
on the overturned urinalysis results.

        c.  Set aside all nonjudicial punishment actions based  on  the
overturned urinalysis results.

        d.  Characterize the service  member’s  discharge  as  a  fully
Honorable Discharge.

        e.  Indicate the reason for the service member’s  discharge  as
expiration of term of service.

        f.  Change  all  of  the  reenlistment  codes  in  the  service
member’s military personnel records to “1J.”

According to AFPC/DPPRS, the applicant’s DD 214 was  reaccomplished  in
accordance with the terms of the settlement agreement.  AFPC/DPPRS also
advises that they informed the applicant of this action in a 1  May  00
letter, and provided him with a copy of the revised form.

In addition to providing records corrections for  the  putative  class,
the  proposed  Settlement  Agreement  provides  for  back  pay  to  the
subclass.  The Air Force was required to notify members of the subclass
of their right to elect to opt  in  to  the  subclass  and  thereby  be
entitled to a specified amount of back pay.  According  to  AFLSA/JACL,
the applicant did not elect to opt in to the subclass.  The  Settlement
Agreement provides that if the veteran does not opt  in,  he/she  would
preserve whatever rights, if any that exist regarding the discharge  at
issue in this case.

The applicant claims that he is entitled to appropriate retirement  pay
and compensation for “lost of career.”  He also claims  entitlement  to
compensation for the “17 years of humiliation and stigma  that  he  has
suffered.”

With regard to his claims for retirement pay and loss  of  career,  the
applicant asserts that if his military career had not been interrupted,
he would most likely have been a CMSgt or SMSgt in Air Traffic Control.
 This position would have made him eligible for an immediate  crossover
to Civil Service Air Traffic Control  at  very  substantial  pay.   The
applicant’s assertions are speculative  at  best  and  questionable  in
several respects.  The applicant’s discharge was based upon  a  pattern
of misconduct  consisting  of  the  alleged  marijuana  use  and  three
separate incidents of failure to  go,  one  of  which  resulted  in  an
Article  15  and  two  of  which  resulted  in  letters  of  reprimand.
Consequently, it is almost certain that the applicant would  have  been
discharged,  even  in  the  absence  of  the  alleged  marijuana   use.
Moreover, the applicant’s performance reports are not indicative of  an
airman destined  for  certain  promotion  to  Senior  or  Chief  Master
Sergeant.  Finally, it should be noted that the applicant was  notified
on 25 Aug 82 of his ineligibility to reenlist.   It  appears  from  the
applicant’s record that, even in the absence of a discharge action,  he
would have been required to separate on his date of  separation  (DOS).
The  applicant’s  request  for  retirement  pay  therefore  merits   no
consideration by the Board.

As indicated previously, the  applicant  has  also  requested  monetary
damages for pain and suffering and “loss of career.”  The AFBCMR has no
authority to award compensatory damages or lost wages.  Therefore these
claims should also be denied.

The applicant’s alternate request to be returned to active duty  as  an
officer, in the grade of lieutenant colonel,  with  credit  for  active
service commencing from his original date of enlistment,  can  best  be
described as outrageous.  Applicant has provided  absolutely  no  basis
for such a request and it deserves no consideration by the Board.

The applicant’s characterization of discharge has already been  changed
from general, under honorable conditions, to  honorable.   This  remedy
was awarded to applicant to correct an apparent  injustice  to  members
discharged for drug abuse as a result of  positive  urinalysis  results
during the 1980s.  The applicant benefited from his  inclusion  in  the
class even though he personally  suffered  no  injustice.   First,  the
applicant initially defended himself against allegations of drug  abuse
by claiming to have innocently ingested marijuana  in  brownies  during
leave.  His defense was not based on unreliability  of  the  urinalysis
test.  Second, as noted above, even if the positive urinalysis were not
considered as a basis of  his  discharge,  a  general  characterization
would still be appropriate.  The applicant had  three  other  incidents
that formed the basis of his discharge for misconduct (one resulting in
nonjudicial punishment).  These three  incidents  clearly  establish  a
pattern of misconduct.  A discharge  based  on  misconduct  should  not
normally be characterized as honorable.

The complete evaluation is at Exhibit C.

_______________________________________________________________

APPLICANT'S REVIEW OF AIR FORCE EVALUATION:

Applicant’s counsel responded to the Air Force evaluation.   He  states
that the Air Force has made reference to records that are not contained
in copies  of  the  records  that  the  applicant  has  been  provided.
Applicant’s counsel states that the applicant objects to any  reference
to any/all documents that they have not produced.  The  applicant  also
provides  a  complete  copy  of  the  records  that  he  received   and
supplements them with  a  copy  of  his  Bachelor  of  Science  Degree,
Master’s Degree, certificate identifying him as an outstanding graduate
of the U.S. Air Force  Supervisor’s  Course,  and  his  appointment  to
Sergeant in 1981.

The applicant in his statement provides a brief overview of his  career
and addresses the three incidents of misconduct referenced in  the  Air
Force evaluation.

The applicant states that he would like to point out what he  considers
the most significant sentence in the “whole letter from  the  Board  of
Review.”  “On page 3, first paragraph, second sentence.   The  sentence
reads, The Air Force subsequently  recognized  that  these  tests  were
scientifically and/or legally insufficient and  set  aside  their  test
results.”  The reason this is so significant to  him  is  because  this
particular  sentence  reflects   how   deceptive,   manipulating,   and
disingenuous the Air Force is with regards to there failing  to  accept
responsibility for their actions.  First, let it be stated how the  Air
Force lumped fifteen years into one sentence.  The Air Force recognized
the test to be scientifically and legally insufficient in 1985, but  it
wasn’t until 2000 that the results were set aside.  It wasn’t  until  a
fifteen-year class action suit.  “Let’s talk about the damages done  in
those fifteen years.”

Counsel’s complete response is at Exhibit E.

_______________________________________________________________

THE BOARD CONCLUDES THAT:

1.  The applicant has exhausted all remedies provided by  existing  law
or regulations.

2.  The application was  not  timely  filed;  however,  it  is  in  the
interest of justice to excuse the failure to timely file.

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 20 September 2001, under the provisions of AFI 36-
2603:

      Mr. Teddy L. Houston, Panel Chair
      Mr. Roscoe Hinton, Jr., Member
      Mr. Roger E. Willmeth, Member

The following documentary evidence was considered:

    Exhibit A.  DD Form 149, dated 7 Aug 00, w/atchs.
    Exhibit B.  Applicant's Master Personnel Records.
    Exhibit C.  Memorandum, AFPC/JA, dated 20 Nov 00.
    Exhibit D.  Letter, SAF/MIBR, dated 1 Dec 00.
    Exhibit E.  Letter, Applicant’s Counsel, dated 6 Aug 01
                       W/atchs.




                                   TEDDY L. HOUSTON
                                   PanelChair