RECORD OF PROCEEDINGS
             AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS


IN THE MATTER OF:      DOCKET NUMBER:  BC-2003-03823
            INDEX CODE: 112.00, 128.05,
            131.00,110.03, 126.00

            COUNSEL:  NONE

            HEARING DESIRED:  YES


_________________________________________________________________

APPLICANT REQUESTS THAT:

1. He be reinstated to active duty in the grade of senior airman (E-4).

2. He receive immediate eligibility for promotion  to  the  grade  of  staff
sergeant.

3. His Reenlistment Eligibility (RE) code be changed from 2C to 1.

4. He receive backpay as a senior airman from 1 May 2001  to  include  leave
pay and reenlistment bonus accrued.

5. The punishment imposed  upon  him  under  Article  15,  Uniform  Code  of
Military Justice (UCMJ),  dated  13  December  2001,  be  removed  from  his
records.

6. His rank at the time of separation (airman first  class)  be  changed  to
senior airman.

_________________________________________________________________

APPLICANT CONTENDS THAT:

He was wrongfully discharged from the Air Force.  He received an Article  15
for the wrongful use of marijuana.  He  states  if  the  Office  of  Special
Investigation (OSI) and his unit commander would have reviewed the  evidence
thoroughly, listened to his testimony, and the  testimonies  and  statements
from the witnesses questioned he would still be on active  duty  pursuing  a
lasting career within the security forces career field.   The  investigation
conducted by OSI and his unit commander failed to allow him to  be  promoted
to staff sergeant by not allowing him to test  to  the  next  rank  and  pay
grade.  The acceptance of an Article 15 is not an admission of guilt nor  is
it an acceptance of punishment.  His Area  Defense  Council  (ADC)  informed
him there were three options he could take; deny the Article 15 and  proceed
with a court-martial, accept the Article 15 with the punishment,  or  accept
the Article 15 and choose to litigate his own defense.  He chose  to  accept
the Article 15 and litigate his own defense which  allowed  him  to  address
any unasked or unanswered questions.  He was also concerned  with  the  time
lapse between the time he was served the Article 15 and a  scheduled  court-
martial.  His ADC and the base Inspector General (IG) informed him  that  he
could prove his innocence by requesting to take a polygraph test,  which  he
did.  He was informed two  weeks  later  by  his  first  sergeant  that  the
results from the test wouldn’t benefit his case.  He  further  indicates  he
has had one Senator inquiry, one IG  complaint/investigation  for  abuse  of
power by his first unit commander, three separate OSI  investigations,  took
one polygraph test and had two discharge packages served to him,  the  first
one withdrawn based on the first two investigations being  incomplete.   Out
of three investigations that took 11  months  to  complete,  two  statements
from the first investigation were presented as evidence saying that he  used
a controlled  substance.   Not  a  urine  analysis  because  one  was  never
conducted even after consenting to  and  requesting  to  take  one.   On  24
October 2002, the  Air  Force  Discharge  Review  Board  (AFDRB)  found  two
statements, the only evidence used to separate him,  were  insufficient  and
could not prove he wrongfully used marijuana.  He believes his path in  life
is one with the Armed  Forces.   He  comes  from  a  family  with  a  strong
military background.  He is fighting to ensure his family tradition  doesn’t
end with him and is passed on.

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

_________________________________________________________________

STATEMENT OF FACTS:

The applicant enlisted in the Regular Air Force on 29 May 1996 in the  grade
of airman basic for a period of four years.

On 4 April 2001, the applicant was notified of  his  commander’s  intent  to
impose nonjudicial punishment upon him for the following:   He  did,  at  or
near Alamogordo, New Mexico, on divers  occasions  between  on  or  about  1
October 2000, and on or about 31 October 2000, wrongfully use marijuana.

After consulting with counsel, applicant waived his  right  to  a  trial  by
court-martial and accepted  the  nonjudicial  proceedings,  he  requested  a
personal appearance and submitted a written presentation.

On 1 May 2001, he  was  found  guilty  by  his  commander  who  imposed  the
following punishment: reduction to the grade of airman first  class  with  a
new date of rank (DOR) of 1 May 2000, a forfeiture of $50.00 pay  per  month
for two months, and 30 days extra duty.

The applicant appealed the punishment and the appeal  authority  denied  the
applicant’s  request.   The  Article  15  was  filed  in   his   Unfavorable
Information File (UIF).

On 13 November 2001, the applicant was notified of  his  commander's  intent
to initiate discharge action against him for drug abuse.  Specifically,  the
commander cited the Article 15 action.

The commander indicated in his recommendation  for  discharge  action  after
reviewing the applicant’s letter of rebuttal, and reviewing  his  supporting
documentation, there was nothing the applicant provided which dissuaded  him
from  believing  the  recommendation  for   discharge   was   inappropriate.
Additionally, in his letter the applicant alleged another airman had  a  UIF
and letter of reprimand (LOR) for making  false  official  statements.   The
unit had  no  such  documentation  on  hand;  however,  the  other  airman’s
training report from the Security Forces Academy indicated such  action  was
taken while the airman was in technical school.

The commander advised the applicant of his right to consult  legal  counsel,
to submit statements in his own behalf; or  waive  the  above  rights  after
consulting with counsel.

After consulting with counsel, the applicant  submitted  statements  in  his
own behalf.

A legal review was conducted by the Chief of Military Justice and the  Staff
Judge Advocate which recommended the applicant be separated with  a  general
(under   honorable   conditions)   discharge,    without    probation    and
rehabilitation,  for  drug  abuse  pursuant  to  AFI  36-3208,  section   H,
paragraph 5.54.  They further  recommended  the  applicant  be  barred  from
Holloman Air Force Base upon separation from the Air Force.

The discharge authority approved the applicant’s  general  (under  honorable
conditions) discharge.

EPR profile since 1998 reflects the following:

      PERIOD ENDING    EVALUATION OF POTENTIAL

          28 Jan 98          2
          30 Sep 98          3
          30 Sep 99          5
          18 Apr 00          5
          14 Dec 00          5

The applicant was discharged on 12 December 2001, in  the  grade  of  airman
first class with a general (under  honorable  conditions)  discharge,  under
the provisions of AFI 36-3208 (Misconduct).  He served 5  years,  6  months,
and 14 days of total active military service.  He  received  a  Reenlistment
Eligibility (RE) code of 2B - Separated with a general or under  other  than
honorable conditions (UOTHC) discharge.

On  17  December  2002,  the  Air  Force  Discharge  Review  Board   (AFDRB)
considered and by a  majority  vote,  granted  the  applicant’s  request  to
upgrade his discharge to honorable and to change his  narrative  reason  for
separation.  They indicated the sole  allegation  supporting  the  discharge
action  was  not  supported  by  a  preponderance  of  the  evidence.   They
concluded the applicant’s discharge  should  be  upgraded  as  a  matter  of
propriety.  Furthermore, the reason for the discharge  was  more  accurately
described as Secretarial Authority.  The  applicant’s  characterization  and
reason for discharge were changed to  Honorable  and  Secretarial  Authority
under the provisions of Title 10, USC 1553.  A majority of the  AFDRB  voted
to deny changing the applicant’s RE code.

_________________________________________________________________

AIR FORCE EVALUATION:

AFLSA/JAJM  recommended  denial.   They  indicated   this   case   presented
conflicting evidence to  the  commander  at  the  time  of  the  nonjudicial
punishment  and  to  the  next  superior  commander  at  the  time  of   the
applicant’s appeal of the punishment.  When considering  the  imposition  of
nonjudicial punishment, or when considering an appeal from such  punishment,
the commander must weigh the  evidence,  and  when  faced  with  conflicting
evidence must determine which evidence to believe and which to reject.   The
commanders’ determinations here were not manifestly unreasonable or  clearly
unfair, and set aside is not in the best interests of the  Air  Force.  They
find no error or injustice in connection with the  military  justice  action
or the resulting administrative discharge.  The applicant has not  presented
evidence compelling either a set aside  of  the  nonjudicial  punishment,  a
reinstatement to active duty, or a change to  the  applicant’s  reenlistment
eligibility code.

The evaluation is at Exhibit C.

AFPC/DPPRS recommended denial.  They indicated the discharge was  consistent
with  the  procedural  and  substantive  requirements   of   the   discharge
regulation.  The discharge  was  within  the  discretion  of  the  discharge
authority.  In accordance with governing directives, illegal  use  of  drugs
is descried as “the illegal, wrongful, or improper  use,  possession,  sale,
transfer, or introduction onto a military installation of any  drug.”   They
find no error or injustice in connection with the  military  justice  action
or the resulting administrative discharge.  The applicant has not  presented
evidence compelling a change to his RE code.

The evaluation is at Exhibit D.

AFPC/DPPPWB recommended denial.  They indicated the demotion  and  discharge
action taken against the applicant was procedurally correct and there is  no
evidence there were any irregularities or that the case was mishandled.

Should the Board grant the applicant’s request to set aside the  Article  15
and reinstate him to active duty in the grade  of  senior  airman,  his  DOR
would be 29 May 1999 (original DOR to senior airman).  Since he had  already
been considered and nonselected  for  SSgt  during  cycle  00E5  before  his
reduction and subsequent discharge, the first time he would be eligible  for
supplemental promotion consideration to SSgt would be cycle 01E5.

The evaluation is at Exhibit E.

_________________________________________________________________

APPLICANT'S REVIEW OF AIR FORCE EVALUATION:

The applicant  reviewed  the  evaluation  and  indicated  the  charges  made
against him were unfair, unjust and in error.   The  results  destroyed  his
reputation, name, career and life.  He hopes  the  Board  investigates  into
these matters and accusations thoroughly and sees them for  what  they  are,
false and untrue.

The response, with attachment, 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.    Sufficient relevant evidence has been  presented  to  demonstrate  the
existence  of  an  error  or  an  injustice  warranting  a  change  in   the
applicant’s RE code.  In this respect, the Board notes the findings  of  the
Air  Force  Discharge  Review  Board  (AFDRB)  upgrading   the   applicant’s
discharge  to  honorable  and  changing  the  narrative   reason   for   the
applicant’s discharge to Secretarial Authority and  the  applicant’s  desire
to serve his country.  In view of the  foregoing,  the  Board  believes  the
applicant should be given the opportunity to enlist  in  the  armed  forces.
Whether or not he is successful will depend upon the needs  of  the  service
and the Board’s recommendation in no way guarantees that he will be  allowed
to return to the Air Force or any branch of the  armed  forces.   Therefore,
we recommend his RE code be changed to “3K” (Secretarial Authority).

4.     Notwithstanding  the  above  determination,   insufficient   relevant
evidence has been presented to demonstrate the existence of an error  or  an
injustice  warranting  the  remaining  relief  requested.    The   applicant
contends  he  did  not  use  marijuana  as  alleged,  and  the   nonjudicial
punishment and discharge he received were unjust because they were  contrary
to the evidence.  He claims the nonjudicial punishment  and  discharge  were
based solely on two witness statements  which  were  contradicted  by  other
witnesses.  The applicant’s contentions are duly noted; however,  the  Board
is of the opinion the comments provided by  the  Military  Justice  Division
are supported by the evidence of record.  In cases such of this  nature,  we
are not inclined to disturb the judgment of  commanding  officers  absent  a
strong  showing  of  abuse  of  discretionary  authority.   We  believe  the
commander was in the best position to weigh the evidence  in  the  case  and
judge the applicant’s credibility, as well as that of  the  statements  made
in this case, prior to recommending the  discharge  action.   The  applicant
has not provided any evidence the commanders  abused  their  authority  when
they  recommended  and  subsequently  approved  the  applicant’s  discharge.
Therefore,  in  the  absence  of  evidence  to  the  contrary,  we  find  no
compelling basis to recommend granting the relief sought.

5.    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 issue(s) involved.  Therefore,  the  request
for a hearing is not favorably considered.

_________________________________________________________________

THE BOARD RECOMMENDS THAT:

The pertinent military records of the Department of the Air  Force  relating
to APPLICANT, be corrected to show that at the time of his discharge  on  12
December 2001, he was issued a Reenlistment Eligibility (RE) code of “3K.”

_________________________________________________________________

The following members of the Board considered AFBCMR Docket Number  BC-2003-
03823 in Executive Session on 7 April 2004, under the provisions of AFI  36-
2603:

                 Mr. Joseph A. Roj, Vice Chair
                 Ms. Rita J. Maldonado, Member
                 Ms. Leslie E. Abbott, Member






All members voted to correct the records,  as  recommended.   The  following
documentary evidence pertaining to AFBCMR Docket  Number  BC-2003-03823  was
considered:

   Exhibit A.  DD Form 149, dated 3 November 2003, w/atchs.
   Exhibit B.  Applicant's Master Personnel Records.
   Exhibit C.  Letter, AFLSA/JAJM, dated 19 December 2003.
   Exhibit D.  Letter, AFPC/DPPRS, dated 29 January 2004.
   Exhibit E.  Letter, AFPC/DPPPWB, dated 13 February 2004.
   Exhibit F.  Letter, SAF/MRBR, dated 27 February 2004.
   Exhibit G.  Letter, Applicant, dated 20 March 2004, w/atch.





                                  JOSEPH A. ROJ
                                  Panel Chair




AFBCMR BC-2003-03823





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  , be corrected to show that at the time of his discharge on 12
December 2001, he was issued a Reenlistment Eligibility (RE) code of “3K.”





            JOE G. LINEBERGER
            Director
            Air Force Review Boards Agency