RECORD OF PROCEEDINGS
             AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS


IN THE MATTER OF:      DOCKET NUMBER: BC-2002-02889

            COUNSEL:  JAMES R. SMITH, JR.

            HEARING DESIRED:  NO


_________________________________________________________________

APPLICANT REQUESTS THAT:

1.    His discharge be upgraded to honorable.

2.    The narrative reason for his discharge  be  changed  to  miscellaneous
reason, AFI-36-3208, paragraph 3.15.

_________________________________________________________________

THE APPLICANT CONTENDS THAT:

There was insufficient evidence to warrant the applicant’s  discharge  under
AFI 36-3208, paragraph 5.32, for  failure  in  an  alcohol  abuse  treatment
program.

The applicant’s counsel states the only evidence of the applicant’s  failure
was his arrest on 4 September 1997 on the charge  of  pedestrian  under  the
influence.  The charge was nolle prossed because on the  day  of  trial  the
arresting officer did not show and the prosecution  had  no  evidence.   His
arrest for an alcohol related charge was not properly used as  a  basis  for
his discharge.  Neither his arrest nor the underlying  conduct  should  have
been considered on  service  characterization  when  the  charge  was  nolle
prossed (formal entry by prosecutor that he/she will not  further  prosecute
the case) in accordance with paragraphs 1.21  and  1.21.1  of  AFI  36-3208.
Furthermore,  the  Air  Force  Discharge  Review  Board  (AFDRB)  erred   in
concluding the applicant had failed to show harmful procedural error in  the
processing of his discharge.  The AFDRB evaded  the  plain  meaning  of  the
discharge notification memorandum  and  sought  some  independent  basis  to
conclude that the applicant should have been discharged.

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

_________________________________________________________________





STATEMENT OF FACTS:

The applicant enlisted in the Regular Air  Force  on  6  March  1996  for  a
period of four years.   He  was  promoted  to  the  grade  of  airman  on  6
September 1996.

An Incident Report, prepared on 8 April 1997, indicates that  on  that  date
at  0420  hours,  the  applicant  was  apprehended  by  the  Lowndes  County
Sheriff’s office and charged with being a pedestrian  under  the  influence.
He was placed in Track 5 (Program Failure - Member is  being  processed  for
discharge) of the Substance Abuse  Rehabilitation  Training  (SART)  program
based on his failure to maintain Air  Force  standards  while  in  the  SART
program.

After reporting to duty late due to intoxication on 22 April  1997,  with  a
blood alcohol count (BAC) of .147%, he was referred  to  the  347th  Medical
Group at Moody AFB, Georgia, on 25 April 1997,  and  entered  into  Track  4
(Treatment) under the Substance Abuse  Reorientation  and  Treatment  (SART)
program.   He  underwent  a  diagnostic  interview  and  his  condition  was
diagnosed as  alcohol  dependence.   He  received  in-patient  treatment  at
Eisenhower Army Medical Center from 3 May through 3 June 1997.

On 25 April 1997, the commander notified the  applicant  of  his  intent  to
impose nonjudicial punishment under  Article  15  of  the  Uniform  Code  of
Military Justice (UCMJ) for violating Article 134.  Specifically, for  being
incapacitated for the proper performance of  his  duties,  on  or  about  22
April 1997.  After consulting legal counsel, the applicant waived his  right
to a trial by court-martial and accepted the nonjudicial punishment.   After
considering the applicant’s oral and written submissions,  on  5  May  1997,
the commander determined that he did commit the alleged offense and  imposed
nonjudicial punishment consisting of a suspended reduction to the  grade  of
airman basic and forfeiture of $150.00 pay per month for  two  months.   The
applicant did not appeal the punishment.

On 1 October 1997, the applicant informed the Mental Health Office  that  he
did not want to continue their aftercare.

In a letter, dated 7 October 1997, the commander notified the  applicant  of
his intent to initiate  administrative  discharge  action  against  him  for
failure in the SART program.  The commander indicated his  reasons  for  the
action were as follows:

           On or about 25 April 1997, he was diagnosed  as  having  alcohol
      dependence.  He was provided in-patient treatment from 6 May 1997 to 3
      June 1997 with follow-on care at Moody’s Mental Health Clinic.   On  4
      September 1997,  he  was  charged  with  public  intoxication  by  the
      Sheriff’s Office.  This incident led to a  meeting  of  the  Treatment
      Committee on 11 September 1997 to review  his  progress  in  the  SART
      program.  The Mental Health Clinic recommended that he be placed  into
      SART Track 5, program failure, which occurred on 15 September 1997.

The applicant acknowledged receipt of  the  discharge  notification  letter.
After reviewing the applicant’s written submission and character  references
submitted in  his  behalf,  on  20 October  1997,  the  discharge  authority
approved the recommended discharge  without  probation  and  rehabilitation.
The execution of the  discharge  was  held  in  abeyance  until  a  physical
examination could be completed  on  the  applicant,  showing  him  medically
qualified for worldwide duty.

He was discharged on 21 October 1997, under the provisions  of  AFI  36-3208
(Alcohol  Rehabilitation  Failure),  with  service  characterized  as  under
honorable conditions (general).  He completed 1 year, 7 months, and 16  days
of active service.

On  13  February  2001,  the  Air  Force  Discharge  Review  Board   (AFDRB)
considered and denied applicant’s request that his discharge be upgraded.

_________________________________________________________________

AIR FORCE EVALUATIONS:

AFPC/DPPRS recommends the application be denied and states,  in  part,  that
the discharge was consistent with procedural  and  substantive  requirements
of the discharge regulation.  In addition,  the  discharge  was  within  the
discretion of the discharge authority.  The applicant has not submitted  any
new evidence or identified any errors or injustices  that  occurred  in  the
discharge processing.

The AFPC/DPPRS evaluation is at Exhibit C.

AFPC/JA states, in part, that the applicant has failed to  present  relevant
evidence of any error  or  injustice  warranting  relief.   The  applicant’s
arrest on 4 September 1997, by civilian authorities  on  an  alcohol-related
charge, was an appropriate basis for the determination that  he  had  failed
the SART program and was therefore  subject  to  discharge.   As  such,  the
contention that there was insufficient evidence to support the discharge  is
rejected.  The applicant’s counsel argues  that  the  nolle  prossed  charge
should be considered an action having the effect of an  acquittal;  however,
it does not indicate an absence of the  commission  of  a  criminal  act  or
forever clear one of the charges brought against him.  The state  prosecutor
elected not to prosecute the charge against him,  but  it  may  spring  into
life again and be continued again with all of the fervor and energy  at  the
command of the prosecutor.  Contrary to counsel’s argument,  it  should  not
be considered an action having the effect of an acquittal.

Counsel also argues the AFDRB’s conclusion that the applicant’s  failure  to
comply  with  the  treatment  schedule  following  return  from   in-patient
rehabilitation for his diagnosed alcohol dependence, in and of  itself,  was
sufficient reason to conclude failure, went far beyond the  matters  in  the
commander’s  notification  memorandum.    However,   after   reviewing   the
commander’s notification memorandum and the memorandum of the Chief,  Mental
Health Office, AFPC/JA finds no basis for this argument since references  to
his failure to comply with his  treatment  regimen  are  contained  in  both
memorandums.  In addition, AFPC/JA disagrees with counsel’s claim  that  the
AFDRB impermissibly based its decision in part on the  applicant’s  exercise
of his 5th Amendment  and  Article  31  rights  against  self-incrimination.
Although AFPC/JA is not convinced that 5th Amendment and Article  31  rights
applied to the applicant at the AFDRB hearing, they acknowledge that,  under
Board procedures, he did not have to answer Board  member  questions  if  he
did not want to.  AFDRB procedures make clear the non-adversarial nature  of
the hearing.  AFPC/JA disagrees with the applicant’s claim  that  the  AFDRB
based its decision upon his refusal to answer questions.  The applicant  has
consistently argued that his 4 September 1997 civilian arrest on an alcohol-
related charge was improperly used as a basis for his discharge because  the
charge was subsequently nolle prossed.  It was appropriate for the AFDRB  to
inquire into the underlying misconduct that was the basis for  the  civilian
arrest.  The AFDRB noted that the applicant declined to answer questions  in
testimony regarding his activities on 4 September 1997.   The  AFDRB  turned
to his records for this information and noted, correctly, that at  the  time
the discharge action was pending, he did not deny that he had committed  the
act.  In AFPC/JA’s opinion, the AFDRB acted appropriately in so finding.

The AFPC/JA evaluation is at Exhibit G.

_________________________________________________________________

APPLICANT’S REVIEW OF AIR FORCE EVALUATIONS:

The applicant’s counsel reviewed the evaluations and states, in  part,  that
while the applicant had done some  things  to  get  himself  into  the  SART
program, on the basis of the matters set forth in the  notification  letter,
there is insufficient evidence to show that he was a program  failure.   The
mere fact the  applicant  was  arrested  does  not  constitute  evidence  of
misconduct, particularly where the charge was nolle prossed or dismissed  on
the day of trial because the prosecution had no evidence.  As noted  in  the
legal review, under AFI 36-2701, paragraph 5.26.1, drinking, by  itself,  is
not grounds for SART program failure.  Nor  does  the  mere  arrest  show  a
basis  for  failure  as  such  arrest  does  not  show  unlawful   behavior.
Furthermore, the State of Georgia made no effort to revive the  charge  that
is  now  clearly  barred  by  the  statute  of  limitations.   Although  the
arresting officer did not show for trial, the defense was ready to  proceed.
 Even if the officer had appeared, it would have  been  impossible  for  the
state to prove the charge of public drunk since he was found asleep  in  his
car and apparently no tests were performed to determine if he  was  impaired
in any way.  Moreover, the charge of pedestrian under  the  influence  would
obviously have to fall since he was not a pedestrian.  While  the  commander
may possibly have made an administrative determination  that  the  applicant
was intoxicated, in this case the commander appears not to have done  so  as
there was nothing in the record or discharge package  from  which  he  could
have drawn such a conclusion.  Nor is there any record  that  the  commander
actually made such an administrative determination.

Counsel’s complete responses are at Exhibits I and K.

_________________________________________________________________

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 a thorough review  of  the  evidence
of record and applicant’s submission,  we  are  not  persuaded  that  relief
should be granted.  The contentions of  the  applicant’s  counsel  are  duly
noted; however, we do not find  these  assertions,  in  and  by  themselves,
sufficiently persuasive to  override  the  rationale  provided  by  the  Air
Force.  The comments of the Staff Judge Advocate have  adequately  addressed
the contentions of the applicant’s counsel and we agree with  their  opinion
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.  Hence, we find  no  compelling  basis  to  recommend
granting the relief sought.

_________________________________________________________________

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  Docket  Number  BC-2002-02889
in Executive Session on 21 August 2003, under  the  provisions  of  AFI  36-
2603:

                       Ms. Patricia D. Vestal, Panel Chair
                       Ms. Martha J. Evans, Member
                       Mr. E. David Hoard, Member

The following documentary evidence was considered:

    Exhibit A.  DD Form 149, dated 31 Jul 02, w/atchs.
    Exhibit B.  Applicant's Master Personnel Records.
    Exhibit C.  Letter, AFPC/DPPRS, dated 27 Sep 02.
    Exhibit D.  Letter, SAF/MRBR, dated 4 Oct 02.
    Exhibit E.  Letter, AFBCMR, dated 17 Oct 02.
    Exhibit F.  Letter, Counsel, dated 17 Oct 02.
    Exhibit G.  Letter, AFPC/JA, dated 18 Nov 02.
    Exhibit H.  Letter, SAF/MRBR, dated 22 Nov 02.
    Exhibit I.  Letter, Counsel, dated 17 Dec 02.
    Exhibit J.  Letter, Applicant, dated 6 Jan 03.
    Exhibit K.  Letter, Counsel, dated 6 Jun 03.
    Exhibit L.  Letter, AFBCMR, dated 11 Jun 03.




                                   PATRICIA D. VESTAL
                                   Panel Chair