RECORD OF PROCEEDINGS
             AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS


IN THE MATTER OF:      DOCKET NUMBER:  02-02536
            INDEX CODE:  126.00

            COUNSEL:  AMERICAN LEGION

            HEARING DESIRED:  NO


_________________________________________________________________

APPLICANT REQUESTS THAT:

He be returned to active duty in the Air Force, that  he  be  reinstated  to
the grade of staff sergeant (E-5), and  that  he  be  compensated  for  lost
wages and benefits.

_________________________________________________________________

APPLICANT CONTENDS THAT:

On 18 April 2002, he was involuntarily separated  from  the  Air  Force  for
allegations of illegal drug use.  Statements were  made  to  the  Office  of
Special Investigations (OSI) in regard to his participating in  the  use  of
illegal drugs.  Both of the statements given by the individuals  were  false
and have since been recanted.  He has both  statements  in  writing.   There
was never any physical evidence to support these  allegations,  and  he  has
taken several urinalysis tests all of which resulted in  negative  outcomes.
He has submitted several  rebuttals  in  his  defense,  all  of  which  were
ignored by his commanders.  He states that his separation was  based  solely
on hearsay and fabricated stories.

In support of his appeal, the applicant provided  a  personal  statement,  7
character references and other documentation.

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

_________________________________________________________________











STATEMENT OF FACTS:

Applicant enlisted in the Regular Air Force  on  13  November  1996  in  the
grade of airman basic for a period of 4 years.

The applicant was notified of his commander's intent to  initiate  discharge
action against him for misconduct.  Specifically,  between  on  or  about  1
April 2000 and on about 1  December  2000,  the  applicant  wrongfully  used
marijuana for which he was given a  Letter  of  Reprimand  (LOR),  dated  13
March 2002.

The commander advised applicant of his right to consult  legal  counsel  and
submit statements in his  own  behalf;  or  waive  the  above  rights  after
consulting with counsel.

After consulting with counsel, applicant submitted  statements  in  his  own
behalf.

On 15 April 2002, the Staff  Judge  Advocate  recommended  approval  of  the
separation with a general (under honorable  conditions)  discharge,  without
probation and rehabilitation.

On 15 April 2002, the discharge authority approved applicant’s discharge.

Applicant was discharged on 18 April 2002 in the  grade  of  senior  airman,
with a general (under honorable conditions) discharge,  in  accordance  with
AFI 36-3208 (Misconduct).  He completed 5 years,  5  months  and  5 days  of
total active duty service.

EPR profile reflects the following:

      PERIOD ENDING    EVALUATION OF POTENTIAL

            12 Jul 98        5
            12 Jul 99        5
         12 Jul 00           5
            12 Jul 01        5

The OSI Investigation concluded that there was no information found  in  the
applicant’s military records, medical records, law enforcement  records,  or
through a sample of applicant’s urine that indicated drug use.  Each  review
disclosed no information relevant to this investigation (Exhibit J).

_________________________________________________________________







AIR FORCE EVALUATION:

AFPC/DPPRS  recommended  denial.   They  indicated  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  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.  He provided no  other
facts warranting an upgrade of the discharge.

The evaluation is at Exhibit C.

AFPC/JA recommended denial.  They indicated that the applicant  attacks  the
decisions of his commander and the separation authority, arguing  that  they
are based upon faulty evidence.  But to successfully  contest  the  validity
of actions taken against him, the applicant bears a  difficult  burden.   He
must overcome a strong presumption that these military administrators,  like
other public officials, discharge their duties correctly, lawfully,  and  in
good faith.  Hary v. Unites  States,  223  Ct.Cl.  10,  17,  618  F.2d  704,
707(1980).

Throughout the entire process, the applicant has maintained essentially  the
same defense.  That is, he did not use marijuana and the  witnesses  against
him were lying.  In response to the LOR, the applicant gave his commander  a
letter written by a witness, which supposedly recanted an earlier  statement
she had made to the AFOSI.  The applicant’s area defense counsel (ADC)  also
submitted a letter to the commander, stating that AB I--- had  told  him  on
the telephone that he had lied to the AFOSI about the applicant’s drug  use.
 Now the applicant has submitted one piece of new evidence - a  hand-written
statement purportedly signed by AB I--- that essentially  repeats  the  same
claim made to the applicant’s ADC.  Since the evidence  found  in  this  new
statement was already  presented  by  the  ADC  to  the  commander  and  the
separation authority, it is of limited value with regard to  supporting  the
applicant’s current claims of error or injustice.

After receiving the evidence of the applicant’s defense, they  presume  that
the commander and the separation authority discharged their duties  in  good
faith and carefully considered all the evidence in the case.  Keep  in  mind
that these officers had access to the investigative files  prepared  by  the
AFOSI, not just the exculpatory evidence the applicant  presented  to  them.
The commander and the  separation  authority  likely  weighed  all  of  this
evidence; pro and con,  but  ultimately  did  not  believe  the  applicant’s
defense.




The applicant has not met his burden of proving an  error  or  injustice  in
his  case.   The  commander  and   separation   authority   considered   the
applicant’s defense, but apparently, in light of all the evidence,  did  not
believe it.  Just because the applicant’s  defense  was  not  convincing  to
these officers, does not mean an error or injustice occurred.

The evaluation is at Exhibit D.

AFPC/DPPPWB recommended denial.   They  indicated  that  the  applicant  was
supplementally considered and selected for  promotion  to  SSgt  during  the
01E5 in-system supplemental process.   His  promotion  sequence  number  was
9879.9, which would have given him a 1 January  2002  date  of  rank  (DOR).
However, on 10 January 2002, he received  notification  from  his  commander
that  his  promotion  was  being  withheld  pending  the   outcome   of   an
investigation for possible drug use.  The  applicant  was  discharged  under
honorable conditions (general) for misconduct on 18 April 2002 in the  grade
of E-4 (senior airman).

They state that HQ AFPC/JA has reviewed this case and determined  there  are
no legal errors requiring corrective action, and have recommended denial  of
the  applicant’s  request.   AFPC/DPPPWB  defers  to  their  recommendation.
Should the AFBCMR find in the applicant’s favor and reinstate him to  active
in the grade of staff sergeant, his date of rank would be 1 January 2002.

The evaluation is at Exhibit E.

_________________________________________________________________

APPLICANT'S REVIEW OF AIR FORCE EVALUATION:

The  applicant  reviewed  the  evaluation  and   indicated   that   he   was
involuntarily discharged without sufficient evidence.  There  is  no  proof,
no physical (urinalysis) or otherwise that any crime was committed.  He  was
never charged  with  any  wrongdoing.   He  was  never  questioned  by  OSI;
therefore, he does not understand why OSI believes that  he  allegedly  used
marijuana.  They were basing their case on  vague  statements.   Later  both
statements were recanted.

The fact that he was discharged without a shred of physical  evidence  means
that an error and an injustice have  indeed  occurred.   He  believes  in  a
justice system that states, “An individual is innocent until  proven  guilty
beyond a reasonable doubt.”  It  is  quite  clear  that  there  are  several
inconsistencies in this case and there is no  physical  evidence  proven  by
the prosecution.




He states that he has sat by patiently while his life and the lives  of  his
family have been ripped apart by these false statements, in hope  that  true
justice will prevail.  His reputation as a husband, son,  father,  and  also
importantly, his status as an airman in the  United  States  Air  Force  has
been ruined.  He earned the rank of SSgt through hard work and a  commitment
to excellence.  It is obvious that through his EPRs and  character  letters,
he is an outstanding airman and his conduct has always  been  nothing  short
of professional.

Applicant’s complete response, with attachment, is at Exhibit G.

On 22 November 2002, the Board staff provided the applicant’s legal  counsel
(The  American  Legion)  copies  of  the  evaluations.   They  reviewed  the
evaluation and indicated that the applicant  has  received  a  multitude  of
character references from his superiors and co-workers.   These  individuals
have worked with him directly on a daily basis, in  some  cases  for  years.
All of these references do not differ in  their  praise  of  the  applicant.
The entire case seems to be predicated on the testimony of two  questionable
individuals.  During the entire time of the  discharge  proceedings  or  any
time prior this individual has  never  tested  positive  on  any  urinalysis
test.

The applicant, prior to these  accusations,  had  been  selected  for  SSgt,
further attesting to his character and dedication to  the  Air  Force.   The
applicant up to  the  time  of  his  discharge  completed  all  assignments,
requirements, and even additional duties  with  a  positive  attitude,  even
while undergoing this traumatic proceeding.  The evidence against  applicant
was circumstantial and would not have held up in a court of  law  especially
after both individuals recanted their  damaging  testimony.   An  individual
provided testimony alledging applicant’s drug use and subsequently  recanted
her  accusations  stating  she  was  trying  to  create  problems  for   the
applicant’s family.  The other witness involved also  stated  any  testimony
that he provided was under duress and was false.  How  could  the  testimony
of these two individuals, of questionable  character,  be  believed  in  the
first place, when viewed with all of the  positive  testimony  presented  on
behalf of the applicant?  We trust this Board to ensure  that  justice  does
prevail, allowing the applicant to return to the Air Force.   This  man  has
the potential to be an outstanding leader in today’s modern Air Force.










They  support  the  applicant’s  request  for   complete   exoneration   and
reinstatement to the Air Force, and  compensation  for  loss  of  wages  and
benefits.  This is one of those instances where the best intentions and  the
application  of  the  appropriate  rules  and   regulations   has,   however
unintentional, created a miscarriage of justice.

Counsel’s response is at Exhibit I.

_________________________________________________________________

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 an error or an injustice.  The applicant contends that  he  was
involuntarily separated from the Air Force for allegations of  illegal  drug
use.   He  claims  that  the  statements  to  the  OSI  in  regard  to   his
participating in the use of illegal drugs were false  and  have  since  been
recanted.  He opposes the decisions of  his  commander  and  the  separation
authority, arguing that they are based upon faulty  evidence.   Further,  he
submits a new statement from  one  of  the  witnesses  again  recanting  his
statement.  The applicant’s contentions are duly noted; however,  the  Board
is of the opinion that the comments provided by  the  Staff  Judge  Advocate
are supported by the evidence of record.  In cases such of this  nature,  we
are not inclined to disturb the judgment of  commanding  officers  absent  a
strong  showing  of  abuse  of  discretionary  authority.   We  believe  the
commander was in the best position to weigh the evidence  in  the  case  and
judge the applicant’s credibility, as well as that of  the  statements  made
in this case, prior to recommending the  discharge  action.   The  applicant
has not provided any evidence that the  commanders  abused  their  authority
when they recommended and subsequently approved the  applicant’s  discharge.
The new statement has been reviewed, however, as noted by  the  Staff  Judge
Advocate, this individual repeats the same claim he made to the  applicant’s
area defense  counsel  during  the  contested  time  period  and  which  was
presented to the commander and  separation  authority.   Therefore,  in  our
opinion, the new statement provides insufficient  evidence  to  support  the
applicant’s  contentions.   It  appears  that  this  individual  made  these
statements after being given immunity to prosecution.  Lastly, we note  that
the applicant asserts that he was never questioned by the  OSI;  however,  a
review of the OSI Report indicates that he was questioned by two OSI  agents
on 6 August 2001 at the AFOSI Detachment 611.   It  was  at  that  time  the
applicant consented to a search of  his  bodily  fluids.   In  view  of  the
totality of  the  circumstances,  the  Board  believes  that  the  discharge
appears to be in compliance with the governing AFI and finds no evidence  to
indicate  that  his  separation  from  the  Air  Force  was   inappropriate.
Therefore, based on the 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 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 AFBCMR Docket Number  02-02536
in Executive Session on 28 January 2003, under the  provisions  of  AFI  36-
2603:

                  Mr. Richard A. Peterson, Panel Chair
                  Ms. Diane Arnold, Member
                  Mr. Michael Barbino, Member

The following documentary evidence was considered:

   Exhibit A.  DD Form 149, dated 25 May 2002, w/atchs.
   Exhibit B.  Applicant's Master Personnel Records.
   Exhibit C.  Letter, AFPC/DPPRS, dated 13 September 2002.
   Exhibit D.  Letter, AFPC/JA, dated 10 October 2002.
   Exhibit E.  Letter, AFPC/DPPPWB, dated 11 October 2002.
   Exhibit F.  Letter, SAF/MRBR, dated 25 October 2002.
   Exhibit G.  Letter, Applicant, 4 November 2002, w/atch.
   Exhibit H.  Letter, AFBCMR, dated 22 November 2002.
   Exhibit I.  Letter, Counsel, dated 13 December 2002.
   Exhibit J.  OSI Report - Withdrawn.





                                RICHARD A. PETERSON
                                Panel Chair