RECORD OF PROCEEDINGS
             AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS

IN THE MATTER OF:      DOCKET NUMBERS:  BC-2002-03329
            INDEX CODE 126.01
            COUNSEL:  None

            HEARING DESIRED:  No

_________________________________________________________________

APPLICANT REQUESTS THAT:

The Article 15 imposed on him  on  10  Apr  02  be  removed  from  his
records.

_________________________________________________________________

APPLICANT CONTENDS THAT:

He did not witness and had no knowledge of any  drug  abuse  by  other
military members. There is no Air Force Instruction that states airmen
are obligated to report such activity. Case law  indicates  that  NCOs
are obligated to report drug use by other military members because  of
their status as NCOs. Since he was an airman first class at the  time,
he was not derelict. However, if he had witnessed the drug purchase or
use by other military members he would have reported it immediately.

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

_________________________________________________________________

STATEMENT OF FACTS:

The  following  information  was  extracted   from   the   applicant’s
submission, his military records, and the Air Force Office of  Special
Investigation (AFOSI) Report of Investigation (ROI) dated 21 May 02.

The applicant enlisted in the Regular Air Force on 16 Jun  99.  During
the period in question he was an airman first  class  assigned  as  an
assistant dedicated crew chief with the 22nd Fighter Squadron (22  FS)
and then as a support specialist with the  52nd  Aircraft  Maintenance
Squadron (52 AMS) at Spangdahlem AB, Germany.

His performance reports reflect the following:

            PERIOD ENDING               OVERALL EVALUATION
              15 Jan 01                      4
              15 Jan 02                      3
              15 Jan 03                      3 (Referral)

Three airmen were under investigation by the AFOSI for use, possession
and distribution of  controlled  substances.  In  the  course  of  the
inquiry, the applicant was alleged to have smoked marijuana  with  the
other three airmen around 5 Oct 01. On 27 Nov 01,  the  applicant  was
interviewed and, after being advised of  his  rights,  he  provided  a
sworn statement. He stated he and the three airmen had  been  partying
and he fell asleep in the car while they drove to a “coffee shop”  (an
establishment that sells controlled  substances)  in  Maastricht,  The
Netherlands. After waking up, he joined the three airmen in the  shop.
He indicated the  three  airmen  might  have  been  smoking  marijuana
because their eyes  were  bloodshot,  but  he  did  not  actually  see
controlled substances or anyone smoke marijuana. He stated that one of
the airmen did offer him a “hit” off of a “bowl,” but he declined  and
departed shortly afterwards to get something to eat.

The applicant apparently had been selected for promotion to the  grade
of senior airman (SRA); however, his promotion  was  withheld  pending
investigation.

When making a personal appearance before the commander on  14  Mar  02
pending Article 15 actions for wrongful use of a controlled substance,
one of the airmen indicated the applicant was with them on  5  Oct  01
when they went to the Maastricht “coffee shop.” The individual did not
implicate the applicant in using drugs or witnessing drug abuse.

The applicant became the subject of an AFOSI  investigation  beginning
on 23 Apr 02. He denied using controlled substances and, after further
questioning, requested legal counsel. The  interview  was  terminated.
The applicant consented to a search of his residence and vehicle  that
same day, but no items of evidence were seized.  He  also  provided  a
urine sample, which later (17 May 02) tested negative for the presence
of controlled substances.

On 27 Mar 02, applicant was notified  of  his  commander's  intent  to
impose nonjudicial punishment upon him for the following:  failing  to
report drug abuse by other military members at Maastricht between, on,
or about 20 Sep 01 and 10 Oct 01; and using his government travel card
(GTC) for unofficial purposes at Owens Cross, AL,  on  3  Nov  01,  at
Huntsville, AL, between 4 and 14 Nov 01, and at Trier, Germany,  on  9
Dec 01.  On 4 Apr 02, after consulting  with  counsel,  the  applicant
waived his right to a trial by  court-martial,  requested  a  personal
appearance, and submitted a written  presentation.  He  explained  the
circumstances surrounding his use of the GTC and indicated he had  not
seen illegal drug use by the other airmen. On 10 Apr 02, his commander
found him guilty  and  imposed  the  following  punishment:  suspended
reduction from airman first class to airman until 9 Oct 02, forfeiture
of $100.00 pay per month for two months, restricted to Spangdahlem  AB
limits for 14 days, and 14 days extra duty. The
applicant’s appeal was denied on 17 Apr 02.  The Article 15 was  found
legally  sufficient  on  23  Apr  02  and  filed  in  the  applicant’s
Unfavorable Information File (UIF).

On 3 Feb 03, the Enlisted Performance Report (EPR) for the  period  16
Jan 02 through 15 Jan 03 was referred to the  applicant.   His  On/Off
Duty Conduct was marked unacceptable and the overall rating  was  “3.”
The  rater  commented  that  the  applicant  showed   extremely   poor
judgment/professionalism and received an Article 15  for  GTC  misuse.
The applicant acknowledged receipt but did not provide comments.

_________________________________________________________________

AIR FORCE EVALUATION:

AFLSA/JAJM notes one of the applicant’s arguments has merit: since  he
was not a non-commissioned officer, he did not have a duty  to  report
drug use. For that reason, the applicant’s record should be  corrected
by setting aside that specification only. The applicant’s  contentions
leave out the important fact that three of the four violations involve
misuse of the GTC.  He does not deny he used the card  for  unofficial
purposes and he provides no evidence of an error or injustice relating
to his commander’s decision  to  impose  punishment.  The  commander’s
decision to  impose  nonjudicial  punishment  in  this  situation  was
appropriate, but the punishment was outside the commander’s authority.
Based on the commander’s grade, the maximum amount of forfeitures  she
could impose was seven days pay over one month. At the  reduced  grade
of airman, the commander could impose a forfeiture  of  no  more  than
approximately $289.00. Instead, she imposed a  forfeiture  of  $100.00
per month for two months, totaling $200.00. Although the total  dollar
amount the applicant forfeited was less than the maximum the commander
could impose, it was in error because it spanned more than one  month.
However, AFLSA/JAJM  finds  this  error  harmless  and  recommends  no
corrective action be taken in this  regard.  AFLSA/JAJM  suggests  the
Article 15 be corrected to delete the first specification but not  set
aside.

A complete copy of the evaluation is at Exhibit C.

_________________________________________________________________

APPLICANT'S REVIEW OF AIR FORCE EVALUATION:

A complete copy of the Air  Force  evaluation  was  forwarded  to  the
applicant on 7 Mar 03 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.    Sufficient relevant evidence has been presented  to  demonstrate
the existence of an error or injustice warranting partial relief.  The
applicant’s argument that he did not have a duty to  report  drug  use
has merit.  AFLSA/JAJM advised they found no law, regulation or custom
establishing a duty for an airman first class to report drug abuse  by
other military members. Further, the applicant  did  not  indicate  he
actually saw, or knew for certain, that  the  other  airmen  had  used
illegal substances. While we agree this specification of  the  Article
15 should be  removed,  the  applicant  has  not  established  he  was
innocent  of  the  charges  of  misuse  of  his   GTC.   Since   these
specifications remain valid, we do not believe the Article  15  should
be voided in its entirety as he  requests.  We  also  note  AFLSA/JAJM
contends the portion of the punishment pertaining to forfeiture, while
outside the commander’s authority, is a harmless error and should  not
be corrected. We disagree. Based on the commander’s grade, the maximum
amount of forfeitures she could impose was seven  days  pay  over  one
month. While the total amount the applicant forfeited  was  less  than
the maximum the commander could impose, it  spanned  two  months.  The
commander might have properly fined the applicant $200 for  ne  month,
but did not. The forfeiture was improper as actually applied and  must
be corrected. We recommend the Article 15 be amended  by  voiding  the
specification pertaining to  reporting  drug  use  by  other  military
members and reducing the forfeiture of $100.00 pay per month  for  two
months to $100.00 pay for one month.

4.    Although the applicant did not raise the issue, the  Article  15
apparently caused the 15 Jan 03 EPR  to  be  rendered  as  a  referral
report. Had we determined the Article 15 should be voided entirely, we
also would have recommended the  referral  report  be  voided  as  its
comments refer to and were driven by the  nonjudicial  punishment.  We
recommended that the specification pertaining to reporting drug use by
others be voided. The EPR does not refer to this allegation  but  only
to  the  applicant’s  misuse  of   his   GTC,   which   remain   valid
specifications in the Article 15. Because there is no evidence  before
us  that  the  EPR  would  have  been  different  without  the   first
specification in the Article 15, we  see  no  reason  to  recommend  a
change to the 15 Jan 03 EPR..

_________________________________________________________________

THE BOARD RECOMMENDS THAT:

The pertinent military records of the  Department  of  the  Air  Force
relating to APPLICANT be  corrected  to  show  that  the  Article  15,
imposed on him on 10 April 2002 under the provisions  of  the  Uniform
Code of Military Justice, be amended as follows:

            a.  The specification pertaining  to  his  dereliction  of
duty in negligently failing to report drug  abuse  by  other  military
members between, on, or about 20 September and on or about  10 October
2001 at or near Maastrict, The Netherlands, be declared void.

            b.  The portion of the punishment pertaining to forfeiture
be changed from $100.00 pay per month for two months  to  $100.00  pay
for one month.

_________________________________________________________________

The following members of the  Board  considered  this  application  in
Executive Session on 1 May 2003 under the provisions of AFI 36-2603:

                 Mr. Philip Sheuerman, Panel Chair
                 Mr. Christopher Carey, Member
                 Ms. Martha J. Evans, Member

The following documentary evidence relating to AFBCMR Docket Number BC-
2002-03329 was considered:

   Exhibit A.  DD Form 149, dated 27 Sep 02, w/atchs.
   Exhibit B.  Applicant's Master Personnel Records.
   Exhibit C.  Letter, AFLSA/JAJM, dated 19 Feb 03.
   Exhibit D.  Letter, SAF/MRBR, dated 7 Mar 03.




                                   PHILIP SHEUERMAN
                                   Panel Chair



AFBCMR BC-2002-03329




MEMORANDUM FOR THE CHIEF OF STAFF

      Having received and considered the recommendation of the Air
Force Board for Correction of Military Records and under the authority
of Section 1552, Title 10, United States Code (70A Stat 116), it is
directed that:

      The pertinent military records of the Department of the Air
Force relating to     , be corrected to show that the Article 15,
imposed on him on 10 April 2002 under the provisions of the Uniform
Code of Military Justice, be amended as follows:

            a.  The specification pertaining to his dereliction of
duty in negligently failing to report drug abuse by other military
members between, on, or about 20 September and on or about 10 October
2001 at or near Maastrict, The Netherlands, be, and hereby is,
declared void.

            b.  The portion of the punishment pertaining to forfeiture
be, and hereby is, changed from $100.00 pay per month for two months
to $100.00 pay for one month.




                       JOE G. LINEBERGER
                       Director
                       Air Force Review Boards Agency