RECORD OF PROCEEDINGS
             AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS


IN THE MATTER OF:      DOCKET NUMBER:  01-01476
            INDEX CODE:  110.00

            COUNSEL:  NONE

            HEARING DESIRED:  NO


_________________________________________________________________

APPLICANT REQUESTS THAT:

His under other than honorable conditions (UOTHC) discharge be upgraded  and
that he be reinstated in the Air Force.

_________________________________________________________________

APPLICANT CONTENDS THAT:

He  was  improperly  discharged.   It   is   unjust   that   his   discharge
characterization reflects such a negative picture of his service.  He  fears
that he may have been somehow targeted (possibly because of the  acquittal),
and that his Air Force career has unfairly been cut short.

In support of his appeal, the applicant provided a  personal  statement  and
other documentation.

Applicant’s complete submission, with attachments, is at Exhibit A.

_________________________________________________________________

STATEMENT OF FACTS:

Applicant enlisted in the Regular Air Force on 6 January 1999 in  the  grade
of airman basic for a period of four years.

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).

On 21 July 2000 the applicant appealed the  punishment  through  the  AFBCMR
requesting the following:

      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.

On 1 February  2001,  the  Board  considered  and  granted  the  applicant’s
request to remove the EPR closing  30  September  1999  and  set  aside  the
Article 15, dated 22 May 2000.

On 11 December 2000, applicant was notified of  his  commander's  intent  to
impose nonjudicial punishment upon him for the  following  reason:   Between
on or about 15 October 2000 to 14 November 2000,  the  applicant  wrongfully
used marijuana.

On 11 December 2000, after consulting with  counsel,  applicant  waived  his
right to a trial by court-martial, did not  request  a  personal  appearance
and did not submit a written presentation.

He was found guilty by his commander who imposed the  following  punishment:
reduction to the grade of senior airman, with a  new  date  of  rank  of  11
December 2000, a forfeiture of $400.00 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).

On 11 December 2000, the applicant was notified of  his  commander’s  intent
to initiate discharge action against him for drug abuse.

The commander indicated in his  recommendation  for  discharge  action  that
prior to entering the Air Force, the applicant was advised that drug use  is
incompatible with military service.  His  use  of  illegal  drugs  seriously
impaired mission accomplishments and demonstrated his lack  of  fitness  for
continued  service.   Probation  and  rehabilitation  was   not   authorized
according to Chapter 7, AFI 36-3208.

The commander advised applicant of  his  right  to  consult  legal  counsel,
present his case to an administrative discharge  board,  be  represented  by
legal counsel at the board hearing, submit statements in his own behalf;  or
waive the above rights after consulting with counsel.

After  consulting  with  counsel,  applicant  waived  his  right  to  submit
statements in his own behalf.

On 3 January 2001, the Staff  Judge  Advocate  recommended  the  applicant’s
unconditional waiver offer be accepted and  that  he  be  ordered  separated
from the Air Force for misconduct, drug abuse,  with  an  Under  Other  Than
Honorable Conditions (UOTHC) service characterization, and without an  offer
of probation and rehabilitation.

On  7  February  2001,  the  applicant  requested  reconsideration  of   his
discharge.  There is no response to this request in the applicant’s record.

Applicant was discharged on 9 February 2001, in the grade of  senior  airman
with an under other than honorable conditions (UOTHC) discharge,  under  the
provisions of AFI 36-3208, Misconduct.  He served 12 years,  4  months,  and
25 days total active duty service.

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               Removed by order of SAF
            31 Aug 00        5

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AIR FORCE EVALUATION:

AFLSA/JAJM  recommended  denial.   They  indicate   that   the   applicant’s
contentions are without merit.  The applicant raises no  issue  with  regard
to the nonjudicial punishment other than to state “Whereas  I  realize  that
the second positive urinalysis sheds a very dubious light  on  my  innocence
with reference to marijuana use, I would like to state  for  the  record,  I
did not use marijuana."  He also states "I fear  I  may  have  been  somehow
targeted (possibly because  of  the  acquittal).”   His  counsel  notes  the
“[t]he Article 15 action and discharge waiver were a  compromise  struck  so
that the applicant would not have to face a court-martial.”

Set aside should only be utilized where, under all the circumstances of  the
case, the punishment has resulted in a clear injustice.   That  is  not  the
case here.  The evidence presented  by  the  applicant  is  insufficient  to
mandate the relief requested, and does not demonstrate  an  equitable  basis
for  relief.   While  his  counsel  characterizes  these  elections   as   a
compromise  to  avoid  court-martial,  those  actions  constituted   knowing
decisions made with the full advice of counsel.  The applicant has  provided
no evidence of a  clear  error  or  injustice  related  to  the  nonjudicial
punishment proceedings.  They defer to AF/DP and AF/JAG  to  advise  on  the
appropriateness of the discharge but the discharge paperwork and  supporting
evidence are legally sufficient to support the discharge without  regard  to
the previous Article 15 the AFBCMR set aside.

The Air Force evaluation is at Exhibit C.

AFPC/DPPRS  recommended  denial.   They  indicate  that   based   upon   the
documentation in the file, they believe the discharge  was  consistent  with
the procedural and substantive requirements  of  the  discharge  regulation.
Additionally,  the  discharge  was  within  the  sound  discretion  of   the
discharge authority.  The applicant did  not  submit  any  new  evidence  or
identify  any  errors  or  injustices  that  occurred   in   the   discharge
processing.  Additionally, he provided no facts  warranting  an  upgrade  of
discharge.

The Air Force evaluation is at Exhibit D.

_________________________________________________________________

APPLICANT'S REVIEW OF AIR FORCE EVALUATION:

On 31 August 2001, 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.

_________________________________________________________________

ADDITIONAL AIR FORCE EVALUATION:

USAF/JAG recommended denial.  They indicate that the applicant did  not  ask
the discharge authority to withdraw his waiver  and  be  retained,  he  only
asked that his discharge be characterized as either  honorable  or  general.
Applicant’s insistence now that he was innocent  is  somewhat  disingenuous.
The fact is that applicant struck a bargain with  the  government  to  avoid
trial by court-martial  and  a  possible  federal  conviction  and  punitive
discharge in exchange for unconditionally waiving his right to  a  discharge
board and acceptance of an Under Other  Than  Honorable  Conditions  (UOTHC)
discharge.  As noted in AFLSA/JAJM’s  advisory,  discharge  for  drug  abuse
should normally be characterized  as  UOTHC.   In  their  opinion,  even  in
instances of one-time marijuana use, an UOTHC discharge characterization  is
appropriate for NCOs, because they serve in positions of responsibility  and
trust.  Consequently, there was no error  or  injustices  in  characterizing
applicant’s discharge for misconduct, drug abuse, as UOTHC.

The Air Force evaluation is at Exhibit F.

_________________________________________________________________

APPLICANT'S REVIEW OF ADDITIONAL AIR FORCE EVALUATION:

On 19 November 2001, a copy of the Air Force  evaluation  was  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.    Insufficient relevant evidence has been presented to  demonstrate  the
existence of probable error or injustice.   The  detailed  comments  of  the
Office of the Judge Advocate  General  adequately  address  the  applicant’s
contentions and are supported by the  evidence  of  record.   The  discharge
appears to be in compliance with the governing AFI and we find  no  evidence
to indicate that his separation from the Air Force  was  inappropriate.   We
also find no evidence of error in this case and after  thoroughly  reviewing
the documentation that has been submitted in support of applicant's  appeal,
we do not believe he has suffered from an  injustice.  Therefore,  based  on
the available evidence of record, we find no basis upon which  to  favorably
consider this application.

_________________________________________________________________

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 30 January 2002, under the provisions of AFI 36-2603:

                  Mr. Wayne R. Gracie, Panel Chair
                  Mr. William E. Edwards, Member
                  Mr. George Franklin, Member

The following documentary evidence was considered:

   Exhibit A.  DD Form 149, dated 20 May 2001, w/atchs.
   Exhibit B.  Applicant's Master Personnel Records.
   Exhibit C.  Letter, AFLSA/JAJM, dated 23 July 2001.
   Exhibit D.  Letter, AFPC/DPPRS, dated 23 August 2001.
   Exhibit E.  Letter, SAF/MIBR, dated 31 August 2001.
   Exhibit F.  Letter, USAF/JAG, dated 8 November 2001.
   Exhibit G.  Letter, AFBCMR, dated 19 November 2001.





                                WAYNE R. GRACIE
                                Panel Chair