RECORD OF PROCEEDINGS
             AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS

IN THE MATTER OF:                       DOCKET NUMBER:  BC-2003-00576
                                        INDEX CODE:  126.04
  XXXXXXXXXXXXXXXXXX              COUNSEL:  None

  XXXXXXXXXXXXXX                  HEARING DESIRED:  NO

_________________________________________________________________

APPLICANT REQUESTS THAT:

The nonjudicial punishment imposed on him on 2 July 2002 under  Article  15,
Uniform Code of Military Justice (UCMJ), be set aside;  and,  his  grade  of
technical sergeant and his line number and subsequent  promotion  to  master
sergeant be restored.
_________________________________________________________________

APPLICANT CONTENDS THAT:

He was found innocent of the charges brought against  him.   He  never  used
cocaine, he knows no one who does use drugs, and he has  never  been  around
anyone using drugs.  The discharge board heard all  the  evidence  and  they
were convinced that he did  not  use  cocaine;  therefore,  all  punishments
brought against him should be removed.

In support of his request, the applicant submits a  personal  statement  and
copies of his Article 15; a legal review  of  the  Administrative  Discharge
Board Findings and Recommendations; his commander’s letter for retention  in
the Air Force; a supporting letter from his  Area  Defense  Counsel  to  set
aside the applicant’s Article 15, his request to set aside  the  Article  15
and his commander’s denial  of  his  request;  his  Area  Defense  Counsel’s
letter  supporting  his  reenlistment,  with  attachment;   and   his   wing
commander’s approval for reinstatement  of  his  reenlistment  status.   The
applicant’s complete submission, with attachments, is at Exhibit A.

_________________________________________________________________

STATEMENT OF FACTS:

The Military Personnel Database  (MilPDS)  indicates  the  applicant  has  a
Total Active Federal Military Service Date  of  16  January  1985.   He  has
continually served on active duty and, prior to  the  events  under  review,
was progressively promoted to the grade of technical  sergeant  (E-6).   The
applicant was selected for promotion to master sergeant (MSgt) during  cycle
02E7  (promotions  effective  August  2002  -  July  2003).   His  promotion
sequence number would have incremented on 1 October 2002.  The applicant  is
currently serving in the grade of staff sergeant.  His  date  of  separation
is 20 February 2005 and he has a High Year of  Tenure  date  of  16  January
2005.  The following  is  a  resume  of  his  Enlisted  Performance  Reports
(EPRs), commencing with the report closing 30 August 1993.

      PERIOD ENDING                     PROMOTION RECOMMENDATION

       30 Aug 1993                                   5
       30 Aug 1994                                   5
       30 Aug 1995                                   5
       30 Aug 1996                                   5
       30 Aug 1997                                   5
       30 Aug 1998                                   5
       30 Aug 1999                                   5
       30 Aug 2000                                   5
       30 Aug 2001                                   5
       30 Aug 2002                                   2

On 20 May 2002, the applicant submitted a urine specimen for  testing.   His
commander was subsequently notified that the specimen  tested  positive  for
cocaine at 126 nanograms (ng) per milliliter (ml) (the DoD cutoff  level  is
100 ng/ml).  Based on this information,  on  20  June  2002,  the  commander
notified the applicant he was  considering  the  imposition  of  nonjudicial
punishment on the applicant under  Article  15,  UCMJ.   The  applicant  was
advised of his rights.  On 27 June 2002, after consulting  military  defense
counsel, the applicant waived his right to demand a trial  by  court-martial
and  accepted  the  nonjudicial  proceedings.   He   submitted   a   written
presentation to, and elected not to make a personal appearance  before,  his
commander.  On 2 July 2002, after considering the matters presented  by  the
applicant, the commander determined he had committed  one  or  more  of  the
offenses alleged and imposed nonjudicial punishment on the  applicant.   His
punishment consisted of reduction in grade to  staff  sergeant  with  a  new
date of rank (DOR) of 2 July 2002 and a reprimand.   On  8  July  2002,  the
applicant chose not to appeal the punishment.

On 30 August 2002, the applicant’s commander notified the applicant that  he
was recommending the applicant be discharged for drug abuse.  On  1  October
2002, a discharge board considered the applicant’s case  and  determined  he
had not used cocaine and found no basis  for  his  discharge.   The  board’s
actions were found to  be  legally  sufficient.   On  3  October  2002,  the
applicant asked his commander to set aside his Article  15.   The  commander
denied the request.  On 3 December  2002,  the  applicant’s  commander  non-
selected the applicant for reenlistment.   He  appealed  this  determination
and, on 27 January 2003,  his  appeal  was  approved  and  his  reenlistment
status was reinstated.

_________________________________________________________________

AIR FORCE EVALUATION:

AFLSA/JAJM recommends denial.  It is JAJM’s opinion that when the  applicant
elected to resolve the allegation in the nonjudicial forum,  he  placed  the
responsibility to decide whether he  had  committed  the  offense  with  his
commander.   Likewise,  the  commander  was  given  the  responsibility   to
determine an appropriate punishment if the  commander  found  the  applicant
had committed  the  offense.   After  the  commander  had  weighed  all  the
evidence, he resolved the  issue  of  the  alleged  misconduct  against  the
applicant.  The applicant did not appeal the nonjudicial punishment  action.


JAJM states a discharge board is not a court.  There is  no  military  judge
and military rules of evidence do not apply.   The  discharge  board’s  sole
purpose is purely administrative.  JAJM states  they  find  nothing  in  the
applicant’s submission which would cause them to doubt the validity  of  the
positive cocaine result.  The fact  that  the  discharge  board  came  to  a
different conclusion does not make the commander’s determination wrong,  nor
does it constitute an error or injustice.

The AFLSA/JAJM evaluation is at Exhibit C.

AFPC/DPPPWB defers to JAJM’s recommendation regarding  the  removal  of  the
Article 15.  DPPPWB indicated that, according to  AFI  36-2502,  Table  1.1,
Rule 19, the applicant’s  reduction  in  grade  automatically  rendered  him
ineligible for promotion to master sergeant.  If the  Board  believes  there
was an injustice and sets aside the Article 15 requested by  the  applicant,
he would be  entitled  to  promotion  to  MSgt  effective  1  October  2002,
provided he is otherwise qualified and recommended by  his  commander.   The
AFPC/DPPPWB evaluation is at Exhibit D.

_________________________________________________________________

APPLICANT'S REVIEW OF AIR FORCE EVALUATION:

The applicant states that he not only accepted the Article  15  because  his
lawyer advised him to do so, but because he lacked  evidence  to  prove  his
innocence.  He also accepted the Article 15 because of the time  constraints
placed on him by the system.  There was not enough time to  gather  evidence
in his defense prior to making this decision.  He felt his decision  was  in
the best interest of his family and himself.  Risking  a  felony  conviction
by court-martial, a dishonorable discharge, and possible jail time  did  not
make sense when the Article 15 forum was offered.  He was  also  advised  by
his lawyer not to make any statements or make a personal  appearance  before
his commander.

He has served honorably for over 18  years.   His  performance  reports  and
medals attest to his service.  He believes he is a victim of a  system  that
has not only cost him over $20,000 in pay and benefits, but  his  reputation
and dignity also.  The applicant’s rebuttal is at Exhibit F.

_________________________________________________________________

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 injustice warranting  corrective  action.   After  reviewing
the evidence presented, the Board majority is of the opinion  that  approval
of the requested relief  is  appropriate.   The  Board  majority  notes  the
decision of the administrative discharge board that the  applicant  had  not
used cocaine and that there was no  basis  for  his  discharge.   The  Board
majority also notes  the  decision  of  the  wing  commander  to  allow  the
applicant to reenlist, reversing the decision of the applicant’s  commander.
 In light of the above and the evidence presented by the  applicant  in  the
form  of  the  concessions  contained  in  the  testimony  of  Drug  Testing
Laboratory personnel, the Board majority believes substantial  doubt  exists
as to the propriety of the imposition of Article 15 punishment in this  case
and that this doubt should be resolved in the applicant’s favor.  It is  the
majority’s opinion that the punishment should be removed  from  his  records
and his  rank  of  technical  sergeant  and  subsequent  selection  for  and
promotion to master sergeant be restored.  Therefore, his records should  be
corrected as indicated below.

_________________________________________________________________

THE BOARD DETERMINES THAT:

The pertinent military records of the Department of the Air  Force  relating
to APPLICANT be corrected to show that;

      a.  The nonjudicial punishment under  the  provision  of  Article  15,
Uniform Code of Military Justice, initiated on 20 June 2002 and  imposed  on
2 July 2002, be declared  void  and  expunged  from  his  records,  and  all
rights, privileges and property of  which  he  may  have  been  deprived  be
restored.

      b.  He was promoted to the grade of  master  sergeant,  effective  and
with a date of rank of 1 October 2002.

_________________________________________________________________

The following members of the Board considered this application in  Executive
Session on 25 June 2003, under the provisions of AFI 36-2603:

            Mr. Philip Sheuerman, Panel Chair
            Mr. Laurence M. Groner, Member
            Mr. James E. Short, Member

Mr. Groner and Mr. Short voted to correct the records, as recommended.   Mr.
Sheuerman voted to deny the applicant’s request and elected not to submit  a
minority report.  The  following  documentary  evidence  was  considered  in
connection with AFBCMR Docket No. BC-2003-00576:

      Exhibit A.  DD Form 149, dated 11 Feb 03, with attachments.
      Exhibit B.  Applicant's Master Personnel Records.
      Exhibit C.  Letter, AFLSA/JAJM, dated 28 Mar 03.
      Exhibit D.  Letter, AFPC/DPPPWB, dated 17 Apr 03.
      Exhibit E.  Letter, SAF/MRBR, dated 2 May 03.
      Exhibit F.  Applicant’s rebuttal, dated 22 May 03.




                                                   PHILIP SHEUERMAN
                                                   Panel Chair


AFBCMR BC-2003-00576




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 XXXXXXXXXXXXXXXXXXXXXXX, be corrected to show that:

            a.  The nonjudicial punishment under the provision of Article
15, Uniform Code of Military Justice, initiated on 20 June 2002 and
imposed on 2 July 2002, be, and hereby is, declared void and expunged
from his records, and all rights, privileges and property of which he may
have been deprived be restored.

            b.  He was promoted to the grade of master sergeant (E-7),
effective and with a date of rank of 1 October 2002.





  JOE G. LINEBERGER

  Director

  Air Force Review Boards Agency