RECORD OF PROCEEDINGS
         AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS

IN THE MATTER OF:      DOCKET NUMBER:  02-01294
            INDEX CODE 126.04
            COUNSEL:  NONE

            HEARING DESIRED:  NO


_________________________________________________________________

APPLICANT REQUESTS THAT:

The Article 15 action and the punishment imposed on 7 Jun 01,  be  set
aside.
_________________________________________________________________

APPLICANT CONTENDS THAT:

The  Article  15  was  not  appropriate  because  the   Administrative
Discharge  Board   determined   that   no   drug   offense   occurred.
Specifically,  the  board  determined  that  there  was  no   wrongful
possession of any Schedule  III  controlled  substances  and  that  he
should be retained in the Air Force.  In view of the board’s findings,
the Article 15 action should be repealed.

In support of his request, applicant submits a personal  statement,  a
copy of a memorandum his defense counsel sent to his commander  and  a
copy of the Administrative Discharge Board’s  record  of  proceedings.
The applicant’s complete submission, with attachments, is  at  Exhibit
A.
_________________________________________________________________

STATEMENT OF FACTS:

The applicant’s Total Active Federal Military Service Date (TAFMSD) is
27 Oct 94.  He was  progressively  promoted  to  the  grade  of  staff
sergeant (E-5), with an effective date and date of rank of 1  Jun  00.
He was reduced to the grade of senior airman (E-4),  with  a  date  of
rank (DOR) of 7 Jun 01, pursuant to an Article 15.

On 30 May 01, applicant was notified  of  his  commander's  intent  to
impose nonjudicial punishment on him  under  Article  15,  UCMJ.   The
misconduct  applicant  had  allegedly  committed  was  for  wrongfully
possessing   Testosterone,   Deca-Durabolin   and   Human    Chorionic
Gonadotropin (HCG), schedule III controlled substances, between on  or
about 1 Oct 00 and on or about 25 Mar  01,  in  violation  of  Article
112a, UCMJ.  The applicant consulted a lawyer,  waived  his  right  to
demand trial by court-martial  and  accepted  nonjudicial  punishment.
After considering all matters presented to him,  the  commander  found
that the applicant did commit one or more  of  the  offenses  alleged.
The commander imposed punishment of reduction to the grade  of  senior
airman, with a new date of rank of 7 Jun 01.  Applicant did not appeal
the punishment.

On 2 Jul 01, the applicant received notification  that  he  was  being
recommended for  discharge  for  misconduct;  specifically,  for  drug
abuse.   On  9  Jul  01,  he  elected  to  present  his  case  to   an
administrative discharge board.  On 24 Jan 02, the applicant  appeared
before an administrative discharge board at Hurlburt Field,  FL.   The
board found the applicant did not, between on or about 1 Oct 00 and on
or about 26 Mar 01, wrongfully possess Testosterone and Deca-Durabolin
schedule III controlled substances.  The board recommended that, since
it has not been shown by a preponderance of the evidence that  a  drug
offense has been committed by the applicant, he should be retained  in
the Air Force.

Applicant's profile for the last 6 reporting periods follows:

            Period Ending    Evaluation

             26 Jun 96 5 - Immediate Promotion
             26 Jun 97 5
             28 Jun 98 5
             28 Jun 99 5
             28 Jun 00 5

             28 Jun 01 (Referral) 2 - Not Recommended at This Time

_________________________________________________________________

AIR FORCE EVALUATION:

AFLSA/JAJM recommends the application be denied.  JAJM stated that  by
mischaracterizing Human Choronic Gonadotrophin (HCG), two issues  must
be resolved by the AFBCMR with regard to  the  Article  15.   Was  the
Article 15 unjust because HCG was  characterized  as  a  schedule  III
controlled substance and, if not, does the finding  of  the  discharge
board make the Article 15 invalid.  In JAJM’s opinion, both  questions
should be answered no and resolved against the applicant.

JAJM stated that the Article 15 mischaracterized HCG as a schedule III
controlled substance in both the Article 15 action and  later  in  the
discharge action.  However, the  applicant  was  on  notice  that  his
conduct in possession of HCG  was  unlawful.   The  applicant  was  on
notice  and  in  fact  admitted  wrongful  possession  of   HCG.    He
acknowledged in his written statement that his action was wrong and he
did in fact possess, and transfer, HCG.  The evidence in front of  the
commander included the statements of the witnesses and  the  admission
by applicant.  There was sufficient  evidence  for  the  commander  to
determine that the applicant had  possessed  Schedule  III  controlled
substances of Testosterone and  Deca-Durabolin  and  the  prescription
drug HCG.  Mischaracterizing HCG did not produce an unjust result.

Does the finding of the discharge board make the Article  15  invalid,
JAJM indicated that it is  difficult  to  tell  from  the  abbreviated
record of the board proceeding exactly what evidence was in  front  of
the board as to the steroids.  While the commander and board  came  to
differing conclusions about possession of testosterone and DECA,  JAJM
stated that there are no conflicting conclusions about the  HCG.   The
fact that  two  separate  fact  finders  reached  partially  different
conclusions is  not  dispositive,  particularly  on  this  record  and
particularly where the  one  issue  the  applicant  admitted  was  not
presented to the board.  While the applicant would prefer  the  AFBCMR
draw the conclusion the discharge board was correct and the  commander
wrong, it is just as logical to draw the opposite conclusion that  the
commander  was  correct  and  the  board  wrong.   The  commander  was
presented the opportunity to revisit the Article 15 and did not do so.
 The commander’s findings are neither  arbitrary  nor  capricious  and
should not be disturbed.

JAJM stated that a set aside should only be granted when the  evidence
demonstrates an error or a clear injustice.  The evidence presented by
the applicant is insufficient to warrant setting aside the Article  15
action, and does not demonstrate an equitable basis for  relief.   The
applicant has provided no evidence of clear error or injustice related
to the nonjudicial punishment action.  The AFLSA/JAJM evaluation is at
Exhibit C.


HQ AFPC/DPPPWB recommends the application be denied.  DPPPWB defers to
the recommendation of AFLSA/JAJM.  However, if the  Board  decides  to
remove the Article 15 as requested, the applicant’s original  date  of
rank (DOR) for staff sergeant  (E-5)  was  1  Jun  00.   Although  his
original DOR makes him eligible for  promotion  consideration  to  the
grade of technical sergeant (E-6) for Cycle 02E6 (promotions effective
Aug 02 - Jul 03), he received a referral Enlisted  Performance  Report
(EPR) for the period 29 Jun 00 - 28 Jun 01, which is an  ineligibility
factor for promotion consideration.  The HQ AFPC/DPPPWB evaluation  is
at Exhibit D.
_________________________________________________________________

APPLICANT'S REVIEW OF AIR FORCE EVALUATION:

Copies of the Air Force evaluations were forwarded to applicant on  19
July 2002 and 2 August 2002 for review and response.  As of this date,
no response has been received by this office (Exhibit E).
_________________________________________________________________

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 error or injustice with respect  to  the  Article  15
action.  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 appropriate Air  Force  office  (AFLSA/JAJM)
and adopt the rationale expressed as the basis for our  decision  that
the applicant has failed to sustain his burden that  he  has  suffered
either an error or an injustice.  In view  of  the  above  and  absent
persuasive evidence to the contrary, we find no  compelling  basis  to
recommend granting the relief sought in this application.
_________________________________________________________________

THE BOARD DETERMINES THAT:

The  applicant  be  notified  that  the  evidence  presented  did  not
demonstrate the existence of 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 24 September 2002, under the provisions of AFI 36-
2603:

                  Ms. Peggy E. Gordon, Panel Chair
                  Mr. John B. Hennessey, Member
                  Mr. Albert J. Starnes, Member

The following documentary evidence was considered:

   Exhibit A.  DD Form 149, dated 11 Apr 02, w/atchs.
   Exhibit B.  Applicant's Master Personnel Records.
   Exhibit C.  Letter, HQ AFLSA/JAJM, dated 21 Jun 02.
   Exhibit D.  Letter, HQ AFPC/DPPPWB, dated 11 Jul 02, w/atch.
   Exhibit E.  Letters, SAF/MRBR, dated 19 Jul 02 and 2 Aug 02.




                                   PEGGY E. GORDON
                                   Panel Chair