RECORD OF PROCEEDINGS
             AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS


IN THE MATTER OF:      DOCKET NUMBER: 01-01880
            INDEX CODE 110.00  136.00
            COUNSEL:  ALVIN CHASE

            HEARING DESIRED:  NO


_________________________________________________________________

APPLICANT REQUESTS THAT:

1.    His general discharge be set aside.

2.    He be retired on 18 August 1997 in the grade of technical sergeant (E-
6), with back pay, or in the alternative;

3.    He be retired on 18 August 1997 in the grade of staff sergeant  (E-5),
or in the alternative;

4.    He be retired on 19 September 1995 in the grade of technical  sergeant
under The Early Retirement Authority (TERA).

_________________________________________________________________

THE APPLICANT CONTENDS THAT:

He was denied due process and  the  action  taken  against  him  constituted
cruel and excessive punishment and was an abuse of discretionary authority.

The applicant’s counsel states the following:

      a.    The applicant’s due process rights were  violated  when  he  was
not  considered  for  lengthy  service  probation.   The  squadron   section
commander failed to notify the  applicant  of  his  entitlement  to  lengthy
service probation consideration.

       b.     Improper  legal  advice  was  provided  to   the   applicant’s
commanders who were responsible for making recommendations  on  his  request
for lengthy service probation.  The commanders were inappropriately  advised
to disregard the policy of considering lengthy  service  probation  even  if
the misconduct was drug abuse.

      c.    The findings of  the  administrative  discharge  board  are  not
supported by the evidence.  There was insufficient evidence to  warrant  the
finding that the drug abuse was not experimental.

      d.    The legal advisor’s instruction to the Administrative  Discharge
Board (ADB) that the applicant must prove all of the seven  factors  to  the
board’s  satisfaction  was  erroneous.   The  standard   of   proof   is   a
preponderance of the evidence in  an  ADB  proceeding,  not  merely  to  the
board’s satisfaction.

      e.    The failure to properly advise the applicant of his  eligibility
for special lengthy service consideration prejudiced  his  case  because  it
unlawfully and unfairly added at least an additional three months and  seven
days to the processing of his case.  As a result,  he  was  kept  on  active
duty long enough to be the subject of  another  drug  inspection  which  may
well have been intended to test him without officially  notifying  him  that
he was on conditional probation.

      f.    The special court-martial authority should have recused  himself
from any further action once it was brought to his  attention  that  he  had
been misinformed when his Staff Judge Advocate (SJA) advised  him  that  the
applicant did not want to be considered for lengthy service.

      g.    Commanders in  the  lower  echelons  processed  the  case  as  a
request for lengthy service consideration while  commanders  at  the  higher
echelons and the Secretary processed the case as a  request  for  retirement
in lieu of discharge.

      h.  The 96th ABW/CC and AFDTC/CC were misled to  believe  that  policy
does not permit an airman with lengthy service to be  retired  once  an  ADB
has recommended discharge for drug abuse.

      i.    The Secretary  unfairly  and  unjustly  refused  to  direct  the
applicant’s retirement instead of his administrative discharge  even  though
he had already attained the minimum retirement eligibility.

In support of the appeal, counsel submits the  applicant’s  and  his  wife’s
personal statements, character statements, and extracts from  the  discharge
proceedings.

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

_________________________________________________________________

STATEMENT OF FACTS:

The applicant enlisted in the  Regular  Air  Force  on  30  April  1976  and
entered active duty on 20 September 1976.  He was progressively promoted  to
the grade of master sergeant (E-7).

The applicant entered his last enlistment on 5 October 1995 for a period  of
four years.

The applicant  tested  positive  for  Tetrahydrocannabinol  (THC)  during  a
random urinalysis test on 18 December 1995.

On 24 May 1996, a special  court-martial  convicted  the  applicant  of  one
specification of a violation  of  Article  112a,  of  the  Uniform  Code  of
Military Justice (UCMJ), for wrongful use of marijuana on one occasion.   He
pled guilty at trial, and was sentenced to be reduced in grade to  technical
sergeant and to be reprimanded.

On 18 June 1996, the commander notified  the  applicant  of  his  intent  to
recommend  his  general   discharge   (under   honorable   conditions)   for
misconduct.  The commander noted the misconduct was his use of marijuana  on
or  about  16  December  1995  with  a   resultant   special   court-martial
conviction.

On 25 June 1996, the applicant requested an Administrative  Discharge  Board
(ADB) hearing.

An ADB convened  on  17  September  1996  and  recommended  the  applicant’s
discharge,  with  service  characterized   as   general   (under   honorable
conditions).  The specific findings of the ADB were as follows:

      a.    The applicant used marijuana  sometime  from  about  16 December
1995 to about 18 December 1995.

      b.    Drug  abuse  was  a  departure  from  his  usual  and  customary
behavior.

      c.    Drug use did not occur as the result of drug experimentation.

       d.     Drug   abuse   involved   recurring   incidents   other   than
experimentation.

      e.    The applicant did not desire or intend to engage in future  drug
abuse.

      f.    Under the circumstances of the  case,  drug  abuse  will  likely
recur.

      g.    The applicant’s retention  is  not  consistent  with  Air  Force
interests; and,

      h.    Drug abuse did not involve drug distribution.

On 7 January 1997, the applicant  was  notified  of  his  right  to  request
retirement and he requested retirement effective 1 February 1997.

The discharge authority approved the  discharge  on  12  February  1997  and
recommended disapproval of his request for retirement in lieu of discharge.

On 27 May 1997, the applicant again tested positive for THC during a  random
urinalysis test.

On 23 June 1997, the commander notified  the  applicant  of  his  intent  to
impose nonjudicial punishment under Article 15 of the UCMJ for violation  of
Article 112a for wrongful use of marijuana from on or about 22 May  1997  to
on or about 27 May 1997.  After  consulting  with  counsel,  he  waived  his
right to trial by court-martial and  accepted  the  nonjudicial  punishment.
After considering the oral and written presentation of the applicant,  on  3
July 1997, the commander determined he did commit the  offense  alleged  and
imposed punishment consisting of reduction to the grade  of  staff  sergeant
and forfeiture of $865.00 pay per month for two months.  The  applicant  did
not appeal the punishment.

On 7 August 1997, the Secretary denied his request for  retirement  in  lieu
of discharge and directed  the  execution  of  the  approved  administrative
discharge.

The applicant was discharged on 18 August 1997, for misconduct with  service
characterized as general (under  honorable  conditions).   He  completed  20
years, 10 months, and 29 days of active service.

_________________________________________________________________

AIR FORCE EVALUATIONS:

AFPC/DPPRS recommends the application be denied and states,  in  part,  that
while the applicant  contends  that  he  should  have  been  considered  for
lengthy service probation, the directive  specifically  states  that  it  is
reserved for members who have at least 16 years but less than  20  years  of
service when the discharge is started.  However, if they go beyond 20  years
of active service during the discharge process,  the  case  becomes  a  dual
action case.  A member cannot be placed  on  lengthy  service  probation  if
they are retirement eligible since lengthy service probation only takes  the
member to minimum retirement eligibility.  Dual action is required  when  an
involuntary discharge is approved and  the  member  is  retirement  eligible
with 20 or more years of active  creditable  service,  and  they  apply  for
retirement.  This is not a retirement in lieu of further actions  as  stated
by the applicant but an opportunity for the member to apply  for  retirement
after an involuntary discharge  has  been  approved.   Both  the  retirement
application and the  involuntary  discharge  action  are  forwarded  to  the
Secretary for a decision as to which will be executed.

The AFPC/DPPRS evaluation is at Exhibit C.

AFPC/JA recommends the application be denied and states, in part,  that  the
applicant has submitted his request more than three years from the  date  of
his involuntary discharge and  has  failed  to  show  that  the  statute  of
limitations should be tolled, or that  the  Board  waiving  the  statute  of
limitations would serve justice.  Should the  Board  waive  the  applicant’s
failure to timely file, they note the following:

      a.    Since the applicant had more than 20  years  of  active  service
during the discharge process, his case was processed as a dual  action.   He
has confused the provisions relating to  airmen  with  lengthy  service  and
dual action processing.  He has submitted no evidence to indicate  that  his
commander should have been recused.  The fact that he was  advised  late  of
his ability to request retirement did not prejudice him in any way.

      b.    No material errors occurred  during  the  discharge  proceedings
and the board members were properly instructed  as  to  how  to  make  their
recommendations and findings.

      c.    Applicant focuses only on the active  duty  service  requirement
for retirement and ignores the reality that retirement is  a  privilege  and
not a right attained merely by the  passage  of  active  duty  time.   While
awaiting action on his request to retire and impending discharge,  he  again
wrongfully used marijuana and was again reduced in  rank.   The  Secretary’s
decision  was  appropriate  given  the  egregious   circumstances   of   the
applicant’s misconduct.

The AFPC/JA evaluation is at Exhibit D.

_________________________________________________________________

APPLICANT’S REVIEW OF AIR FORCE EVALUATIONS:

Complete copies  of  the  evaluations  were  forwarded  to  the  applicant’s
counsel on 26 October 2001 for review and response.

At counsel’s request, on 26 November 2001, the application was withdrawn.

On 12 February 2002,  the  applicant’s  counsel  provided  comments  to  the
evaluations and requested the application be reopened.

The applicant’s counsel states that it was not until 30  October  2000  that
the applicant discovered the error or injustice in his records.  It  was  at
that time that he received a complete copy of his case file  and  discovered
that commanders  were  improperly  advised  regarding  his  eligibility  for
lengthy service probation.  Regardless, the Board should waive  any  alleged
failure to timely file his application in the interest  of  justice.   While
the  AFPC/JA  evaluation  argues  that  the  applicant  has   confused   the
provisions of lengthy service probation with dual processing,  it  is  clear
that this same misunderstanding went through to the legal  review  submitted
to the separation authority.

In summary, counsel states that the applicant violated Air Force policy  and
the law; he accepted that responsibility and admitted his guilt.  The court-
martial recognized  this  and  elected  not  to  punitively  discharge  him.
However, the ADB felt duty bound to recommend  involuntary  discharge.   The
Air Force failed to process his case efficiently  and  without  undue  delay
and otherwise follow its administrative procedures which  resulted  in  more
than three months being added to his stay in the  Air  Force.   Had  he  not
remained on active duty an extra three months, while not  required,  it  was
likely, based on similar cases, that the Secretary would have  approved  his
retirement.

Counsel’s complete response is at Exhibit H.

_________________________________________________________________

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 error or injustice.  After thoroughly  reviewing  the  evidence
of record and noting the applicant’s contentions, a majority  of  the  Board
is not persuaded that he has been the victim of an error or  injustice.   In
this respect, a majority of the Board notes the following:

      a.    The applicant’s due process rights were  not  violated  when  he
was not considered for lengthy service probation.  This provision exists  to
allow members with 16 but less than 20 years of service to reach  retirement
eligibility.  In the applicant’s case, he attained over 20 years of  service
during the discharge process.  A member cannot be placed on lengthy  service
probation who is retirement eligible since lengthy  service  probation  only
takes the member to minimum retirement eligibility.

      b.    The applicant has  not  met  his  burden  of  proving  that  the
findings of the administrative discharge board  are  not  supported  by  the
evidence.   The  applicant  contends  there  was  insufficient  evidence  to
warrant the finding that the drug abuse was not  experimental;  however,  he
has failed to support this  contention.   Furthermore,  this  contention  is
inconsistent with his subsequent drug  use.   Especially,  when  considering
the later drug use occurred after administrative action had  been  initiated
against him for his earlier drug use.

      d.    There has been no showing that the legal  advisor’s  instruction
to  the  Administrative  Discharge  Board  (ADB)  was  erroneous.   To   the
contrary, the Staff Judge Advocate has examined  the  report  of  the  board
proceedings, the exhibits, and the legal  reviews  and  determined  that  no
material errors occurred during the proceedings, and that the board  members
were  properly  instructed  as  to  how   to   make   their   findings   and
recommendations.

      e.    A majority of the Board is  not  persuaded  that  there  was  an
inordinate delay in the processing of  the  applicant’s  case  or  that  the
delay was prejudicial  to  him.   Although  not  initially  advised  of  his
ability to request retirement,  he  was  later  so  advised,  and  requested
retirement.  It appears the additional  processing  time  was  necessary  to
insure his retirement request was processed  accordingly.   He  contends  he
was prejudiced by the delay because it unlawfully and unfairly kept  him  on
active duty long enough to be the subject  of  another  drug  inspection  to
which he tested positive.  However, it was his repeated drug  use,  not  the
additional three months and seven days of service that prejudiced him.

      f.    The fact that he completed 20 years of service does  not  render
the Secretary’s decision to deny  his  request  for  retirement  unfair  and
unjust.   As  indicated  by  the  Staff  Judge  Advocate,  retirement  is  a
privilege and not a right obtained by the passage  of  time.   The  decision
was well within the Secretary’s authority and there is no evidence that  the
decision was arbitrary or capricious.  To the contrary, given the fact  that
the applicant wrongfully used marijuana a second time while awaiting  action
on his retirement request and his impending discharge, it would  appear  the
decision  was  appropriate.   There  being  insufficient  evidence  to   the
contrary, a majority of the Board finds no  compelling  basis  to  recommend
granting the relief sought.

_________________________________________________________________

RECOMMENDATION OF THE BOARD:

A majority of the Board finds insufficient evidence of  error  or  injustice
and recommends the application be denied.

_________________________________________________________________

The following members of the Board  considered  Docket  Number  01-01880  in
Executive Session on 11 June 2002, under the provisions of AFI 36-2603:

                       Ms. Olga M. Crerar, Panel Chair
                       Mr. George Franklin, Member
                       Mr. Charles E. Williams, Jr., Member

A majority of the Board voted to deny the application.   Mr. Williams  voted
to grant the applicant’s request that his general  discharge  be  set  aside
and he be retired on 18 August 1997 in the grade of  staff  sergeant  (E-5),
but does not wish to submit a Minority Report.   The  following  documentary
evidence was considered:


    Exhibit A.  DD Form 149, dated 2 Jul 01, w/atchs.
    Exhibit B.  Applicant's Master Personnel Records.
    Exhibit C.  Letter, AFPC/DPPRS, dated 20 Sep 01.
      Exhibit D.  Letter, AFPC/JA, dated 17 Oct 01.
      Exhibit E.  Letter, SAF/MIBR, dated 26 Oct 01.
      Exhibit F.  Letter, Counsel, dated 14 Nov 01.
      Exhibit G.  Letter, AFBCMR, dated 26 Nov 01.
      Exhibit H.  Letter, Counsel, dated 12 Feb 02, w/atch.




                                   OLGA M. CRERAR
                                   Panel Chair