RECORD OF PROCEEDINGS
             AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS


IN THE MATTER OF:      DOCKET NUMBER: BC-2003-01735

            COUNSEL:  GREG MCCORMACK

            HEARING DESIRED:  YES


_________________________________________________________________

APPLICANT REQUESTS THAT:

1.    Vacation of the nonjudicial punishment (i.e., reduction to  the  grade
of E-5 and reprimand) imposed on 12 June  2000,  under  Article  15  of  the
Uniform Code of Military Justice (UCMJ).

2.    Vacation of the findings of the Administrative Discharge Board (ADB).

4.    He be promoted to the grade  of  master  sergeant  (E-7)  effective  1
October 2000.

5.    All references to his marijuana use be removed from his records.

6.    He receive all back pay and allowances as a result of  the  correction
to his records.

_________________________________________________________________

THE APPLICANT CONTENDS THAT:

The ADB incorrectly found that he  had  wrongfully  used  marijuana  despite
uncontradicted evidence that  he  consumed  Nutiva  food  bars  without  the
knowledge that they contained hemp seed products or would cause him to  test
positive for marijuana.

He never knowing ingested marijuana, but rather had eaten Nutiva  bars  that
contained hemp seed.  There is nothing in his records to  indicate  that  he
knowing  ingested  marijuana.    Prior   to   the   nonjudicial   punishment
proceedings, he was unaware that the food he  had  consumed  contained  hemp
seed and would cause his urinalysis sample to test positive  for  marijuana.
When this evidence was presented to the ADB, they determined he  was  worthy
of further service in the Air Force.  Although the law permits  the  drawing
on an inference as to wrongful use of drugs, that inference should  only  be
drawn in the absence of evidence to the contrary.

In support of the appeal, the applicant submits extracts from  his  military
records and information regarding Nutiva Health Bars.

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

_________________________________________________________________

STATEMENT OF FACTS:

The applicant contracted his enlistment in the Regular Air Force on
21 September 1981.  He was progressively promoted to the grade of
technical sergeant.

He was selected for promotion to the grade of master sergeant  during  cycle
00E7, with a Promotion Sequence Number (PSN) that would be incremented on  1
September 2000.

On 9 May 2000, he provided a urine sample during a  random  urinalysis  test
that tested positive for marijuana.

On 12 June 2000,  the  commander  notified  him  of  his  intent  to  impose
nonjudicial punishment under Article 15 of  the  Uniform  Code  of  Military
Justice (UCMJ) for  wrongfully  using  marijuana.   After  consulting  legal
counsel, the applicant waived his right to  a  trial  by  court-martial  and
accepted  the  nonjudicial  punishment.   After  considering  his  oral  and
written submissions, on 12 June 2000, the commander determined that  he  did
commit the alleged offense and imposed punishment  consisting  of  reduction
to the grade of staff sergeant and a reprimand. He appealed the  punishment;
however, his appeal was denied.

On 11 July 2000, the commander  notified  him  of  his  intent  to  initiate
administrative discharge action against  him  for  misconduct  due  to  drug
abuse.  An Administrative Discharge Board  (ADB)  convened  on  7  September
2000 and based  on  the  finding  that  he  did  commit  drug  abuse  on  an
experimental basis and since it was not likely to  occur  again,  recommened
he be retained in the Air Force.

On 18 January 2001, the Secretary of the Air Force Personnel  Council  found
that he did not serve satisfactorily in any higher grade and that  he  would
not be advanced on the retired list.

He retired on 1 October 2001, in the grade of staff sergeant for  length  of
service.

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AIR FORCE EVALUATIONS:

AFLSA/JAJM recommends the application be denied and states,  in  part,  that
counsel’s contentions are without merit.  During the nonjudicial  punishment
proceedings the applicant  contended  that  his  positive  test  result  for
marijuana was the result of his exposure to marijuana  smoke  while  in  the
company of his brothers.  However, during the  ADB  he  contended  that  his
positive test result was the result  of  ingesting  Nutiva  food  bars  that
contained hemp seed, the consumption of which could  result  in  a  positive
test result for marijuana.  Neither his commander nor the ADB were  required
to believe either defense.  The  positive  urinalysis  result  and  forensic
toxicologist testimony are ample proof he committed the offense of  wrongful
use of marijuana.  He has not shown that passive  inhalation  of  marijuana,
or eating Nutiva bars, or both, would result in a urinalysis result of  over
twice the Department of Defense cut-off level for marijuana.

The AFLSA/JAJM evaluation is at Exhibit C.

AFPC/DPPPWB  defers  to  the  recommendation  of  AFLSA/JAJM.    AFPC/DPPPWB
states, in part, that at the time of the Article 15,  the  applicant  had  a
line number for promotion to the grade of master sergeant which  would  have
been incremented on 1 September 2000.  However, as a result of  the  Article
15 reducing him to  the  grade  of  staff  sergeant,  he  was  automatically
ineligible for promotion to the grade of master  sergeant.   If  the  AFBCMR
sets aside the Article 15, he would be entitled to promotion  to  the  grade
of master sergeant, effective 1 September 2000.

The AFPC/DPPPWB evaluation is at Exhibit D.

_________________________________________________________________

APPLICANT’S REVIEW OF AIR FORCE EVALUATIONS:

Complete  copies  of  the  Air  Force  evaluations  were  forwarded  to  the
applicant’s counsel on 15 August 2003 for  review  and  response  within  30
days.  However, 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.  We find no evidence of error in this  case
and after thoroughly reviewing  the  documentation  applicant  submitted  in
support of his appeal, we do not believe he has suffered from an  injustice.
 The applicant request the Article  15  and  resultant  punishment,  be  set
aside and promotion to the grade of master  sergeant,  effective  1  October
2000.  Evidence has not been presented which would lead us to  believe  that
the nonjudicial punishment, initiated  and  imposed  on  12  June  2000  was
improper.   Furthermore,  when  he  received  the   Article   15,   he   was
automatically ineligible for promotion to the grade of master sergeant.   In
cases of this nature, we are  not  inclined  to  disturb  the  judgments  of
commanding officers absent  a  strong  showing  of  abuse  of  discretionary
authority.  We have no such showing  here.   The  evidence  indicates  that,
during the processing of this Article 15 action, the applicant  was  offered
every right to which he  was  entitled.   He  was  represented  by  counsel,
waived his right to demand trial by court-martial, and  submitted  oral  and
written matters for review by the  imposing  commander.   After  considering
the matters raised by the applicant, the commander determined  that  he  had
committed the offense alleged and  imposed  punishment.   An  Administrative
Discharge  Board  (ADB)  found  that  he  did  commit  drug  abuse   on   an
experimental basis and since it was not likely to reoccur, recommended  that
he be retained in the Air Force.  He has not provided any  evidence  showing
that  the  imposing  commander  or  the  reviewing  authority  abused  their
discretionary authority, that his substantial rights  were  violated  during
the processing of the Article 15 punishment and ADB, or that the  punishment
exceeded the maximum authorized  by  the  UCMJ.   Therefore,  based  on  the
available evidence of record, we find  no  basis  upon  which  to  favorably
consider 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-2003-01735
in Executive Session on 8 October 2003, under  the  provisions  of  AFI  36-
2603:

                       Mr. Thomas S. Markiewicz, Chair
                       Ms. Martha Maust, Member
                       Mr. Michael V. Barbino, Member







The following documentary evidence was considered:

    Exhibit A.  DD Form 149, dated 25 Apr 03, w/atchs.
    Exhibit B.  Applicant's Master Personnel Records.
    Exhibit C.  Letter, AFLSA/JAJM, dated 7 Jul 03.
    Exhibit D.  Letter, AFPC/DPPPWB, dated 28 Jul 03.
    Exhibit E.  Letter, SAF/MRBR, dated 15 Aug 03.




                                   THOMAS S. MARKIEWICZ
                                   Chair