RECORD OF PROCEEDINGS
         AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS

IN THE MATTER OF:      DOCKET NUMBER:  BC-2003-00692
            INDEX NUMBER:  126.00
      XXXXXXXXXXXXXX   COUNSEL:  None

      XXX-XX-XXXX      HEARING DESIRED:  Yes

_______________________________________________________________

APPLICANT REQUESTS THAT:

The Article 15 imposed on him on 31 Oct 02 be set aside and all  rights
and properties of which he was deprived be restored.

_______________________________________________________________

APPLICANT CONTENDS THAT:

He was given an Article 15 for wrongfully using marijuana.  However, he
later obtained evidence in the form of a sworn  statement  that  proved
that he did not know that marijuana was present  in  a  cigar  that  he
inhaled from.  When his commander attempted to discharge  him  for  the
Article 15 for marijuana use, he elected to make  his  case  before  an
Administrative Discharge Board.   The  Administrative  Discharge  Board
determined that he had not wrongfully used marijuana and  retained  him
in service.  Despite his evidence  that  he  had  not  wrongfully  used
marijuana, his commander refused to set aside the Article 15.

In support of his appeal, the applicant provides a statement  from  his
military  counsel,  copies  of  his  military  records,  and  character
references.

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

_______________________________________________________________

STATEMENT OF FACTS:

The applicant enlisted in the Air Force on 23 Sep 98.  He was  promoted
up to the grade of senior airman (SrA)  (E-4).   He  was  selected  for
promotion to staff sergeant (SSgt) (E-5)  during  cycle  02E5  and  was
scheduled to pin on his promotion on 1 Feb 03.  However, on 21 Oct  02,
the applicant was offered proceedings under Article 15 by his commander
for an alleged violation  of  Article  112a  of  the  Uniform  Code  of
Military Justice (UCMJ) for the wrongful use of marijuana.  On  28  Oct
02, the applicant accepted proceedings under Article 15 and attached  a
written  presentation.   On  31  Oct  02,  the  applicant’s   commander
determined that he had  committed  the  alleged  offense.   He  imposed
punishment consisting of reduction to the grade of airman (E-2).  On  4
Nov 02, the applicant appealed the punishment.  The appellate authority
denied the applicant’s appeal.

A resume of the applicant’s enlisted performance reports follow:

      Closeout Date               Overall Rating

        15 Apr 00                       5
        15 Apr 01                       5
        15 Apr 02                       5
       *15 Apr 03                       3

*  Report rendered after Article 15

On 15 Nov 02, the  applicant’s  commander  notified  him  that  he  was
recommending his discharge from service for drug abuse.  The  applicant
elected to have his case  considered  by  an  Administrative  Discharge
Board.  On 16 Nov 02, a board of officers  were  convened.   The  board
determined that the applicant had not  wrongfully  used  marijuana  and
found no basis for his discharge.

_______________________________________________________________

AIR FORCE EVALUATION:

AFLSA/JAJM recommends denial of the applicant’s request  to  set  aside
his Article 15.  The fact that the discharge board came to a  different
conclusion does not make the  commander’s  determination  wrong.   Fact
finders  might  have  access  to  different  information,  or  come  to
different conclusions after reviewing the same information.  They  find
nothing in the applicant’s submissions, which would cause them to doubt
the validity of the positive marijuana result.  Moreover,  a  discharge
board is not a court.  There is no military judge and military rules of
evidence do not apply.  Its purpose is purely administrative.  The fact
that the discharge  board  reached  a  different  conclusion  than  the
commander does not constitute an error or injustice.

The complete evaluation is at Exhibit C.

AFPC/DPPPWB defers to the recommendation of AFLSA/JAJM.   They  provide
information regarding the applicant’s previous selection for  promotion
to SSgt.  The applicant had been selected for  promotion  to  SSgt  and
scheduled to pin on his promotion on 1  Feb  03.   When  the  applicant
received the Article 15, he was rendered ineligible for promotion.   If
his Article 15 is set aside, he will be entitled for promotion to  SSgt
effective 1 Feb 03.

The complete evaluation is at Exhibit D.

_______________________________________________________________
APPLICANT'S REVIEW OF AIR FORCE EVALUATION:

The applicant responded to the Air Force evaluations by explaining  why
the Article 15 he received constitutes an injustice.  He feels that  he
is at a disadvantage because the same office that convicts is  the  one
making the recommendation not to  grant  his  request.   The  applicant
explains why he chose to accept proceedings  under  Article  15  rather
than demand trial by court-martial.  He  asserts  that  the  individual
that provided the statement that  proved  he  did  not  wrongfully  use
marijuana was interviewed by his first sergeant, military counsel,  and
a Security Forces investigator and found to be a credible witness.

The applicant’s complete response is at Exhibit F.

The applicant’s military counsel also  submitted  a  statement  in  his
behalf.  He explains the sequence of events leading to their  obtaining
a sworn statement from the individual that placed marijuana in a cigar.
 He indicates that during the applicant’s discharge hearing, the  legal
advisor commented on how credible both the applicant and the individual
providing the statement were on the stand under oath.  He  states  that
there was  also  an  expert  witness  at  the  discharge  hearing  that
demonstrated that the urinalysis results were not inconsistent with the
facts as presented by the applicant.  He opines that the  discovery  of
additional  evidence  since  the  Article  15  was  imposed   and   the
commander’s  refusal  to  set  aside   the   Article   15   after   the
Administrative Discharge Board’s decision are grounds for the AFBCMR to
grant the applicant relief.

The complete submission is at Exhibit G.

_______________________________________________________________

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.  We took notice of the applicant's
complete submission in judging the merits  of  the  case;  however,  we
agree with the opinions and recommendations of the Air Force offices of
primary responsibility and adopt their rationale as the  primary  basis
for our conclusion that the applicant has not been  the  victim  of  an
error or injustice.  The crux of the applicant’s argument appears to be
that since the  Administrative  Discharge  Board  reached  a  different
conclusion regarding his alleged marijuana use than his commander,  his
commander’s refusal to set aside the Article 15 constitutes an error or
injustice.  We disagree.  The Administrative Discharge  Board  was  not
conducted as a further part or appeal of the Article 15 proceedings the
applicant had willingly  agreed  to.   Rather,  it  was  based  on  his
entitlement to  a  board  action  due  to  his  commander’s  desire  to
discharge him for what he considered illegal use of marijuana.   We  do
not believe that it logically follows that the commander  is  bound  to
bring his actions in line with the Administrative Discharge Board.   In
fact, one might ask, what argument might the applicant  make  regarding
the Article 15 had the commander not pursued discharge  action  against
him?  We believe the applicant has benefited from the protections built
into the discharge process and has been  afforded  the  opportunity  to
salvage his Air Force career.  Therefore, in the absence of evidence to
the contrary, we find no compelling basis  to  recommend  granting  the
relief sought in this application.

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 issues 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  Docket  Number  BC-2003-
00692 in Executive Session on 6 October 2003, under the  provisions  of
AFI 36-2603:

      Ms. Marilyn Thomas, Panel Chair
      Ms. Barbara R. Murray, Member
      Ms. Ann-Cecile McDermott, Member

The following documentary evidence was considered:

    Exhibit A.  DD Form 149, dated 4 Feb 03, w/atchs.
    Exhibit B.  Applicant's Master Personnel Records.
    Exhibit C.  Memorandum, AFLSA/JAJM, dated 2 Apr 03.
    Exhibit D.  Memorandum, AFPC/DPPPWB, dated 22 Apr 03.
    Exhibit E.  Letter, SAF/MRBR, dated 9 May 03.
    Exhibit F.  Memorandum, Applicant, dated 2 Jun 03.
    Exhibit G.  Memorandum, USAF Trial Judiciary/ADC,
                dated 2 Jun 03.




                                   MARILYN THOMAS
                                   Panel Chair