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.
_________________________________________________________________
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
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