RECORD OF PROCEEDINGS
             AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS


IN THE MATTER OF:      DOCKET NUMBERS:  02-01660
            INDEX CODE 129.04
            COUNSEL:  None

            HEARING DESIRED:  Yes

_________________________________________________________________

APPLICANT REQUESTS THAT:

He be allowed to retire in the highest  grade  held,  i.e.,  technical
sergeant (TSgt).

_________________________________________________________________

APPLICANT CONTENDS THAT:

He used marijuana because of his increasing back  pain.  The  hospital
failed him, never  x-rayed  him  or  performed  a  magnetic  resonance
imaging (MRI) scan.  All they did was  give  him  Motrin.  Afterwards,
they found six blown discs, degenerative joint disease, and  spurs  in
both shoulders along with nerve impingement. According to AFI 36-3203,
he could  have  submitted  documentation  substantiating  satisfactory
service as a TSgt. He was never given that opportunity.  He  questions
what  the  decision  was  based  on,  given  his  only  two   Enlisted
Performance  Reports  (EPRs)   as   a   TSgt   reflected   exceptional
performance. He asks if the Secretary of the Air Force  (SAF)  or  his
designees even looked at his EPRs.

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

_________________________________________________________________

STATEMENT OF FACTS:

The applicant enlisted in the Regular Air Force on 8 Jul  82  and  was
ultimately promoted to the grade of TSgt with a date of rank (DOR)  of
1 Sep 98.

His performance reports reflect the highest overall ratings (9s  under
the “old” system and 5s under the “new” system) with the exception  of
an EPR closing 7 Feb 88, which had an  overall  rating  of  8,  and  a
referral EPR closing 4 Oct 01, which had an overall rating of 2. The 7
Feb 88 EPR made vague references to actions which apparently  resulted
in an Article 15 being imposed on the  applicant  on  11  Sep  87  for
wrongfully using hashish  around  30 Jun  87.   The  applicant  was  a
sergeant  at  the  time  and  stationed  in  England.  Punishment  was
forfeiture of $490.00 pay per month for two months  and  a  reprimand.
The applicant did not  make  a  written  presentation  or  appeal  the
punishment. The 4 Oct 01 referral EPR is discussed below.

During the period in question, the applicant was assigned to the  16th
Services Squadron at Hurlburt Field, FL, as a readiness specialist.

Medical records indicate in 1997 the applicant fell four feet  from  a
loading dock onto his lower back. He was  in  full  field  armor  with
heavy gear at the time. Low back pain worsened and oral medication and
physical therapy were not beneficial. Three months after  the  initial
injury, he suffered worsening discomfort while moving tents and felt a
pop in his left shoulder coming up from his lower back.  He  also  had
secondary pain in the left side  of  his  neck  as  well  as  shoulder
discomfort which had been going on intermittently since 1981. An April
1999 exam indicated low back pain achieved good results with  therapy.
In Dec 00 the applicant complained of several months of worsening  low
back pain. X-ray results showed only mild degenerative change  of  the
intervertebral  disc  space  between  the  first  and  second   lumbar
vertebrae (L1-2). Less than a month later, he underwent an MRI scan of
his lumbar spine which revealed moderate degenerative disc disease and
herniations of the intervertebral disc at the L2-3 level. The MRI also
noted early degenerative changes of the  facet  joints  at  the  L5-S1
level. In Jan 01, he complained of continued  pain  radiating  to  the
left  buttock  and  posterior  thigh.  The  applicant  received   some
transient relief with epidural steroid injections. In Apr 01,  he  was
evaluated by a civilian specialist who noted the MRI results  revealed
prominent disc bulge or broad-based protrusion on the  right  at  L2-3
without nerve root impingement and a small  shallow  para-median  disc
protrusion at L1-2. The specialist diagnosed back  pain  as  traumatic
lumbar facet syndrome and mild lumbar degenerative  disk  disease  and
recommended diagnostic facet joint injections. The record is not clear
whether these injections were performed. Further medical  details  are
provided in the AFBCMR Medical Consultant’s evaluation at Exhibit C.

On 17 Jan 01, the Hurlburt Air Force Office of Special  Investigations
(AFOSI) interviewed the applicant about allegations that he  had  used
marijuana. He consented to provide a urine sample for testing and,  on
22 Jan 01, his urine tested positive for marijuana usage. On 3 Mar 01,
the applicant pled guilty and was convicted by  special  court-martial
(SCM) for wrongful use of marijuana between 17 Dec 00 and 17  Jan  01.
Sentence was 30  days  confinement,  reduction  from  TSgt  to  senior
airman, 60 days hard labor  without  confinement  and  reprimand.  The
sentence was adjudged on 3  May  01;  however,  that  portion  of  the
punishment pertaining to hard labor was not ordered executed.

On 11 Jun 01, the  commander  notified  the  applicant  he  was  being
recommended for a general discharge based on the SCM conviction. After
consulting counsel,  the  applicant  requested  a  hearing  before  an
administrative  discharge  board   (ADB)   and   a   lengthy   service
consideration by the SAF.

On 28-29 Aug 01,  the  ADB  convened  and  found  the  following:  The
applicant did use the marijuana for which he was convicted; the  abuse
was a departure of his  usual  and  customary  behavior  and  did  not
involve recurring incidents other than experimentation; the abuse  did
not involve drug distribution; he did not desire or intend  to  engage
in drug abuse in the future; and his drug  abuse  was  not  likely  to
recur. The ADB recommended the applicant be retained. Legal review  on
18 Sep 01 found the board’s findings and recommendations supportable.

On 2 Nov 01, the applicant requested retirement effectively 31 Jul 02.

On 26 Nov 01, the EPR closing 4 Oct 01 was referred to the  applicant.
His on/off duty conduct was marked unacceptable  and  he  received  an
overall rating of 2 (not recommended for promotion at this time).  The
applicant did not provide comments.

On 20 Dec 01, the SAF Personnel Council (SAFPC)  determined  that  the
applicant held the grade of TSgt for  33  months  but  did  not  serve
satisfactorily in that grade. They did find he  served  satisfactorily
in the grade of staff sergeant and directed his  advancement  to  that
grade on the retired list effective the  date  of  completion  of  all
required service (active and retired time total 30 years).

On 31 Jul 02, the applicant was retired in the grade of senior  airman
with 20 years and 2 days of active service.   The  applicant  will  be
advanced to the grade of staff sergeant in 2012.

_________________________________________________________________

AIR FORCE EVALUATION:

The AFBCMR Medical Consultant notes the medical  records  reflect  the
applicant sought care for recurrent shoulder pain in Dec 99 but  there
are no medical record entries evident in the months leading up to  the
Dec  01  timeframe  (time  of  marijuana  use).  The  medical  records
corroborate the fact that he was suffering  from  increased  low  back
pain during the time he used marijuana and he was  being  treated  and
evaluated for his pain.  Contrary to his allegations, the records show
he did have x-rays and an MRI of his back was performed  in  a  timely
fashion. The MRI  revealed  degenerative  disc  disease  but  did  not
correlate with his symptoms. The 26 Jan 01 medical record  entry  does
not give any indication that inadequate pain control by Motrin  was  a
concern of the applicant or that he requested and was denied  anything
stronger. There is no medical evidence that his shoulder condition was
bothersome to him during the time frame of  illegal  marijuana  abuse.
The Consultant finds no  evidence  in  the  medical  record  that  the
applicant’s back pain was ignored  or  that  he  was  denied  stronger
analgesic medication to the extent that he had no recourse other  than
to resort to illegal use of marijuana. Denial is recommended.

A complete copy of the evaluation is at Exhibit C.

HQ AFPC/DPPD notes a retirement physical exam on 23  Apr  02  and  the
applicant’s last EPR clearly show he was  capable  of  overcoming  the
presumption of fitness during his last year  of  active  service.  His
military  career  was  not  curtailed  as  a  result  of  any  medical
condition. They find no reason why the applicant’s records  should  be
changed to reflect a retired grade  of  TSgt.   The  punitive  actions
leading to his demotion were well within the jurisdiction of the court-
martial’s authority. Denial is recommended.

A complete copy of the evaluation is at Exhibit D.

_________________________________________________________________

APPLICANT'S REVIEW OF AIR FORCE EVALUATION:

Complete copies of the Air Force evaluations  were  forwarded  to  the
applicant on 1 Nov 02 for review and comment within 30  days.   As  of
this date, this office has received no response.

_________________________________________________________________

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 to warrant retiring the  applicant
in the grade of TSgt. The applicant asserts he used marijuana in  1991
to assuage the pain from his alleged  insufficiently  treated  medical
condition. However, we  note  the  applicant  apparently  received  an
Article 15 for wrongful use of hashish in  1987,  at  least  10  years
before he complained of back pain. Contrary to the applicant’s claims,
his medical records reveal that x-rays and an MRI  were  performed  on
his back in a timely fashion. He has not demonstrated  that  his  pain
was inadequately controlled or that he requested  or  was  denied  any
stronger medications for pain. Further, at the time of the applicant’s
second  drug  use,  the  available  evidence  does  not  support   his
contention that his condition was so unmanaged he had no recourse  but
to resort to the illegal use of marijuana for pain  control.  We  also
note that instead of being discharged for his  misconduct,  the  ADB’s
retention recommendation allowed the applicant to serve until eligible
for retirement. The SAFPC considered his entire service performance as
well as his time in grade as a TSgt  before  determining  the  highest
grade in which he served  satisfactorily  was  staff  sergeant.  As  a
result, he will be advanced to that grade in 2012. The  applicant  has
not provided evidence of an error or injustice entitling  him  to  any
added relief than that already afforded him. We  therefore  find  that
his appeal should be denied.

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  issue(s)   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 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 10 December 2002, under the provisions of AFI 36-
2603:

                  Ms. Olga M. Crerar, Panel Chair
                  Ms. Brenda L. Romine, Member
                  Mr. James W. Russell III, Member

The following documentary evidence relating to AFBCMR Docket  No.  02-
01660 was considered:


   Exhibit A. DD Form 149, dated 9 May 02, w/atchs.
   Exhibit B. Applicant's Master Personnel Records.
   Exhibit C. Letter, AFBCMR Medical Consultant, dated 15 Sep 02.
   Exhibit D. Letter, HQ AFPC/DPPD, dated 22 Oct 02.
   Exhibit E. Letter, SAF/MRBR, dated 1 Nov 02.




                                   BRENDA L. ROMINE
                                   Acting Panel Chair