RECORD OF PROCEEDINGS
             AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS

IN THE MATTER OF:                       DOCKET NUMBER:  BC-2003-01430
                                        INDEX CODE:  126.04
  XXXXXXXXXXXXXXXXX                     COUNSEL:  GREG D. MCCORMACK

  XXXXXXXXXX                            HEARING DESIRED:  YES

_________________________________________________________________

APPLICANT REQUESTS THAT:

His records be corrected to show that (1) he  was  honorably  discharged  at
the end of his enlistment contract based on satisfactory completion of  that
contract and with a reenlistment code  of  RE-1;  (2)  all  records  of  any
nature related to allegations that he used cocaine be  removed;  (3)  he  be
given credit for time in service from the date of his discharge through  the
end of his enlistment contract on 26 September 2000; (4) he be awarded  back
pay, allowances and any other benefits which were denied as a result of  his
discharge; (5) he be retired from  the  Air  Force  based  on  20  years  of
service; and (6) he be reimbursed for all lost retirement pay  and  benefits
from the date of retirement until the date of the Board’s decision.

_________________________________________________________________

APPLICANT CONTENDS THAT:

His discharge was illegal.  The evidence presented at  his  discharge  board
hearing was insufficient to establish that he  knowingly  used  cocaine  and
because his counsel at the board “failed  to  emphasize  to  the  panel  the
possibility that  he  may  have  innocently  ingested  cocaine  without  his
knowledge.”  AFMPC/DPMARS2 committed error by failing to give him notice  of
the decision to refuse his request for lengthy service probation.   In  view
of his length of service, military record, and the board  findings  that  he
met six of the seven criteria established by the  discharge  regulation  for
retention of a member found to have abused drugs, his discharge is unjust

In support of his request, the applicant  submits  copies  of  five  letters
from his attorney in his behalf to the Air Force  Board  for  Correction  of
Military Records (AFBCMR); a  copy  of  his  DD  Form  214,  Certificate  of
Release or  Discharge  from  Active  Duty;  a  copy  of  his  administrative
discharge board proceedings; a copy of the applicant’s request  for  lengthy
service consideration; three articles  concerning  cocaine  usage;  and  six
character reference letters.   The  applicant’s  complete  submission,  with
attachments, is at Exhibit A.

_________________________________________________________________

STATEMENT OF FACTS:

On 29 August 1980, the applicant enlisted in the Regular Air  Force  at  the
age of 19 in the  grade  of  airman  basic  for  a  period  of  four  years.
Following  his  successful  completion  of  basic  military   training   and
technical training the applicant served as  a  Radio  Communications  System
Craftsman.   The  applicant  was  progressively  promoted  to  the  rank  of
technical sergeant effective and with a date of rank  of  1  November  1996.
He  received  nineteen  performance  reports  between  24  March  1981   and
28 February 1999, with overall ratings of 9, 9, 9, 9, 9, 9, 7, 9, 9,  4,  5,
3, 5, 5, 5, 5, 5, 5, and 5.

On 14 June 1999, the applicant was absent without leave.   Upon  his  return
to duty on 16 July 1999, his commander ordered the applicant to submit to  a
urinalysis test.  The result of the test  was  positive  for  cocaine  in  a
concentration of 2,388 nanograms per milliliter  (ng/ml),  with  the  cutoff
level for DoD at 100 ng/ml.

On  9  August  1999,  the  commander   notified   the   applicant   of   his
recommendation to discharge the applicant for misconduct, specifically  drug
abuse.  The applicant acknowledged receipt  the  same  day.   On  17  August
1999, the applicant notified the commander of his intent to consult  counsel
and submit statements in his own behalf.  The applicant  also  requested  an
administrative discharge board be  convened  with  enlisted  representation.
On 19 August 1999, the commander recommended the  applicant’s  discharge  to
the discharge authority.   The  administrative  discharge  board,  held  5-7
October  1999,  found  the  applicant  subject  to  discharge   because   of
misconduct (drug abuse)  and  recommended  an  honorable  discharge.   On  2
December   1999,   the   applicant   requested   he   be   considered    for
retention/probation and for lengthy service consideration.   On  2  December
1999, the staff  judge  advocate  found  the  applicant’s  discharge  to  be
legally sufficient.  On 3 December 1999, the  discharge  authority  approved
the applicant’s discharge.  On 3 April 2000, the Secretary of the Air  Force
disapproved the  applicant’s  request  for  lengthy  service  probation  and
ordered the administrative discharge be executed.   On  21 April  2000,  the
applicant was honorably discharged with a narrative  reason  for  separation
as misconduct.  He had served 19 years, 7 months,  and  23  days  on  active
duty.

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AIR FORCE EVALUATION:

AFPC/DPPRS recommends denial.  DPPRS states  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.  It is DPPRS’s  opinion  that  the  applicant  did  not
submit any new evidence or identify any errors or injustices  that  occurred
in the discharge process;  therefore,  the  applicant’s  request  should  be
denied.  The DPPRS evaluation is at Exhibit C.

AFPC/JA recommends denial.  It  is  JA’s  opinion  that  the  applicant  has
failed to provide evidence of an error or injustice.   JA  states  that  the
evidence presented at the applicant’s discharge board  would  be  sufficient
enough to support a finding of guilt  at  a  military  court-martial,  which
requires proof beyond a reasonable doubt.   The  finding  of  the  discharge
board that the applicant used cocaine is amply support by  the  evidence  of
record.

Concerning the applicant’s claim of ineffective representation, JA  comments
that the  attorneys  representing  the  applicant  at  his  discharge  board
vigorously contested the urinalysis result.  The  fact  that  they  chose  a
different defense strategy than is now proposed by the  applicant’s  present
counsel does  not  demonstrate  that  they  committed  an  error  justifying
correction of the applicant’s record.  JA states  that  there  may  be  many
reasons that counsel would properly choose not to  pursue  such  a  defense.
An innocent ingestion defense would be extremely unlikely to succeed  absent
testimony - either sworn or unsworn - from the member that he  did  not  use
cocaine.  The applicant  did  not  present  such  testimony  at  the  board,
possibly because he was unable to do so.  In his request  for  retention  or
probation submitted after the  board,  the  applicant  does  not  explicitly
admit to using cocaine use.  Neither does he deny it.  However, his  request
appears to signify acceptance of responsibility for the alleged  misconduct.


The applicant argues that his discharge after “19 years,  7  months  and  23
days of faithful service was  a  manifest  injustice”  and  that  the  board
findings of six of the  seven  retention  criteria  justifies  granting  his
petition.  JA states that the United States  Claims  Court  has  defined  an
injustice,  for  purposes  of  10  United  States  Code,  Section  1552,  as
“treatment by the military authorities that shocks the  sense  of  justice.”
It is  JA’s  opinion  that  the  applicant’s  discharge,  after  a  military
discharge board  determined  that  he  used  cocaine,  does  not  meet  this
standard.  The AFPC/JA evaluation is at Exhibit D.

_________________________________________________________________

APPLICANT'S REVIEW OF AIR FORCE EVALUATION:

Copies of the Air Force evaluations were forwarded to the applicant on  11
June 2003 for review and comment (Exhibits E).   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.  Insufficient relevant evidence has been  presented  to  demonstrate  the
existence  of  error  or  injustice.   The  applicant  requests   that   his
involuntary discharge be changed to a retirement for length of service;  all
records pertaining to his use of cocaine be expunged from  his  records;  he
be awarded all back pay, allowances, and benefits which  were  denied  as  a
result of his discharge; and he be reimbursed for all  lost  retirement  pay
and benefits from the  date  of  retirement  to  the  date  of  the  Board’s
decision.  After thoroughly reviewing the evidence of  record,  we  find  no
evidence to show that the applicant’s discharge based  on  the  findings  he
had used a  controlled  substance  was  erroneous  or  unjust.   Applicant’s
contentions are duly noted; however, we do  not  find  these  uncorroborated
assertions, in and by themselves, sufficiently persuasive  to  override  the
evidence of record or the rationale provided by the Air Force.   It  appears
that the responsible officials applied appropriate  standards  in  effecting
the discharge, and  the  applicant  has  not  provided  persuasive  evidence
demonstrating that his substantial rights were violated, that  the  evidence
which served as a basis for  his  separation  was  erroneous,  or  that  his
superiors abused their discretionary authority when it was  determined  that
the recommended discharge should be approved  without  the  offer  probation
and rehabilitation or lengthy service probation.  In his submission to  this
Board, he puts forward a new theory in the  form  of  an  assertion  of  the
“possibility” of unknowing ingestion.  However,  no  corroborative  evidence
in  extenuation  or  explanation  accompanies  this   theory.    While   the
applicant’s discharge may appear harsh to some, based  on  the  evidence  of
record,  the  seriousness  of  the  offense  for  which  the  applicant  was
discharged, and the well-publicized consequences of  drug  use  by  military
members, we do not find the decision to discharge the applicant was  unjust.
 Therefore, we agree with the recommendations of the  Air  Force  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.  In view of the foregoing, we conclude that no  basis  exists  to
recommend granting the relief sought in 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 this application in  Executive
Session on 23 July 2003, under the provisions of AFI 36-2603:

            Mr. Robert S. Boyd, Panel Chair
            Mr. Laurence M. Groner, Member
            Mr. Mike Novel, Member


The following documentary evidence for AFBCMR  Docket  Number  BC-2003-01430
was considered:

      Exhibit A.  DD Form 149, dated 16 Apr 03, with attachments.
      Exhibit B.  Applicant's Master Personnel Records.
      Exhibit C.  Letter, AFPC/DPPRS, dated 23 May 03.
      Exhibit D.  Letter, AFPC/JA, dated 9 Jun 03.
      Exhibit E.  Letter, SAF/MRBR, dated 11 Jun 03.




                                  ROBERT S. BOYD
                                                   Panel Chair