RECORD OF PROCEEDINGS
         AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS

IN THE MATTER OF:      DOCKET NUMBER:  BC-2004-02844
            INDEX CODE:

            COUNSEL:  GRANT E. LATTIN

            HEARING DESIRED: YES

_________________________________________________________________

APPLICANT REQUESTS THAT:

All documents  related  to  a  general  (Under  Honorable  Conditions)
discharge for drug  abuse  dated  12 May  2003  be  removed  from  his
military record and he be reinstated in  the  New  York  Air  National
Guard (NYANG) as of 12 May 2003, or, barring the above, he be afforded
a hearing within which to defend himself against  the  allegations  of
drug use.

_________________________________________________________________

APPLICANT CONTENDS THAT:

The following issues illustrate the errors and injustices that led  to
his eventual discharge:

      1.  Even  using  the  lowest  standard  of  proof  required  for
administrative  determinations,  a  preponderance  of  evidence,   the
evidence received by the Air Force does not prove he  unlawfully  used
cocaine.

      2. He was unlawfully denied  his  constitutional  right  to  due
process of law after he demanded a  hearing  and  the  AF  refused  to
provide him one when the type of discharge  he  could  received  would
impose a “stigma” by indicating he was discharged for “drug abuse.”

      3. He was discharged in  violation  of  Air  Force  Instructions
(AFI’s) that required he be given a hearing if the discharge could  be
Under Other Than Honorable Conditions (UOTHC).  He was never  informed
of and there is no evidence the commander ever rescinded  the  initial
letter of notification of processing for  drug  abuse  with  an  UOTHC
discharge.

      4. He was discharged in  violation  of  AFIs  when  the  command
initiated an administrative discharge for drug abuse  by  sending  him
the first notification  letter,  then  without  rescinding  the  first
notification and  10  months  later,  initiated  a  second  letter  of
notification recommending him for discharge.

      5. He was unlawfully discharged by the Air Force  when  it  gave
him a general, (UHC) discharge for alleged  misconduct  that  occurred
when he was in a civilian status.  There  is  no  evidence  indicating
that any  drug  abuse  occurred  while  he  was  subject  to  military
jurisdiction.

      6. He was unlawfully discharged by the Air Force when it  failed
to process him for discharge in an expeditious manner.  It took almost
a full year from the time of the first discharge notification  to  the
date of his actual discharge.

      7. He was unlawfully discharged from  the  Air  Force  when  the
command failed to obtain a meaningful legal review of the evidence and
discharge procedures.

In support of his appeal, the applicant has provided a statement  from
counsel, both letters of notification, a personal statement, character
evidence and letters of reference, specimen custody documents,  copies
of his military counsel’s documents, excerpts from several AFI’s, case
law, discharge documents, and several documents  between  counsel  and
the AF Inspector General (IG).

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

_________________________________________________________________

STATEMENT OF FACTS:

The applicant, a former member of the NYANG began his military  career
on 16 May 1997.  He attained the grade of senior airman (SRA)  with  a
date of rank of 3 May 1999.  On 24 April  2002,  he  was  notified  he
would be undergoing a physical at  his  next  Unit  Training  Assembly
(UTA).  On 4 May 2002, a random urinalysis test revealed he  had  used
cocaine.  On 29 May 2002, his commander  notified  him  he  was  being
discharged with an Under Other Than Honorable Conditions discharge for
Misconduct – Drug Abuse.  He  signed  for  receipt  of  the  LON,  was
assigned military counsel, and, as was his right, he requested a board
hearing.  In June 2002, his commander notified him of  her  intent  to
impose/recommend nonjudicial punishment (NJP).  On 11  June  2002,  he
retained civilian counsel.  On  3  July  2002,  his  military  counsel
requested a second round of testing to be accomplished at the US  Army
Forensic Toxicology Drug Testing Laboratory.  The retest consisted  of
six separate tests and all confirmed the positive finding for cocaine.
 On 18 August 2002, military  counsel  responded  to  his  commander’s
notification of NJP with a memorandum denying drug use.  Consequently,
his commander decided to hold any NJP action in abeyance.

Between August 2002 and March 2003, counsel and the NYANG Staff  Judge
Advocate engaged in negotiations to resolve the action.  No resolution
was reached and the discharge action was continued.

On 24 March 2003, his commander issued another letter of  notification
wherein he was told he was being  recommended  for  discharge  with  a
general (Under Honorable Conditions) discharge for Misconduct  –  Drug
Abuse.  Under this type of service characterization he was  no  longer
eligible for a board hearing.  He signed for receipt of the LON.  On 6
April 2003, defense counsel  submitted  matters  in  response  to  the
discharge action.  On 23 April 2003, his second civilian counsel  also
submitted a response to the discharge action.

He  was  discharged  effective  12  May  2003  with  a  general  (UHC)
discharge.  He had served for 5 years, 11 months, and 27 days and  was
discharged  in  the  grade  of  senior   airman.    His   reenlistment
eligibility is “Ineligible.”   On  22  September  2003,  his  civilian
counsel filed a complaint of wrongdoing with the AF Inspector  General
(IG) contending the NYANG violated Air Force procedures in  processing
the discharge action.  On 17  October  2003,  counsel  also  sent  the
complaint to the applicant’s congresswoman.  On 29 October  2003,  the
AF/IG notified counsel that due to the nature of the  complaint,  they
sent the complaint  to  the  AF  Legal  Service  Agency’s  Office  for
Professional  Responsibility  (AFLSAOPR).   The  IG  stated  following
receipt of AFLSAOPR’s recommendations,  the  IG  would  decide  on  an
appropriate course of action.  On 2 June 2004, counsel wrote to the IG
again and asked for the status of his request.  Counsel  included  the
congresswoman’s request for information with his correspondence to the
IG.  On 16 June 2004, SAF/IGQ  responded  to  counsel’s  2  June  2004
memorandum by stating the issue of administrative separations was  not
an IG matter and should be addressed to the local  Military  Personnel
Flight (MPF).  The IG  quoted  a  portion  of  the  AFLSAOPR  findings
wherein  it  was  stated  after  coordination  with  NYANG  officials,
AFLSAOPR was satisfied with the NYANG’s action in this matter.  The IG
also mentioned a petition to the Air Force Board  of  Corrections  for
Military Records as an additional avenue of redress.

On 21 June 2004, a Staff  Judge  Advocate  from  the  Connecticut  Air
National Guard (CTANG) provided a four-page legal  review  to  the  NY
Adjutant General (TAG).  The CTANG legal review is at attachment 2  of
the ANG/DPFOC advisory.  On 14 February 2005, the  vice  commander  of
the NYANG provided ANG/DPFOC a nine-page rebuttal to  the  applicant’s
civilian counsels contentions.  The vice commander’s  rebuttal  is  at
attachment 1 of the ANG/DPFOC advisory.

_________________________________________________________________

AIR FORCE EVALUATION:

ANG/DPFOC recommends denial.  DPFOC bases their denial on the contents
of a memorandum provided by the Vice Commander of  the  NYANG’s  105th
Airlift Wing (AW) attached to the DPFOC advisory.  DPFOC  states  they
agree with the stated opinion of  the  NYANG  memorandum  and  support
their contention  the  applicant’s  request  should  be  denied.   The
following statements from the NYANG’s memorandum specifically  address
the applicant’s seven contentions:

      1. Applicant’s  contention  the  evidence  was  insufficient  to
support  the  discharge   is   without   merit.    In   administrative
proceedings, evidentiary standards are much lower (a preponderance  of
the evidence) than those in criminal proceedings (beyond a  reasonable
doubt).  That said, existing case law has  shown  positive  urinalysis
has been found sufficient to support a criminal conviction.

      2. His contention he was denied constitutionally guaranteed  due
process in that the Air Force denied him a discharge  board  when  the
type of characterization would result in a stigma, is wrong.   The  24
March  2003  letter  of  notification  indicated  the  commander   was
recommending  a  general  discharge  for  which  there  was  no  board
entitlement.  The squadron, group and wing commanders, the wing  staff
and state judge advocate, and the Adjutant General  all  reviewed  the
case file and found the discharge warranted.   That  is  all  the  due
process he was entitled to and that’s what he received.  Regarding his
contention of “stigma”,  AFI  36-3209,  Administrative  Separation  of
Airmen,  states,  “[d]ischarges  with  service   characterization   of
Honorable or Under Honorable Conditions (General) are usually  treated
the  same   concerning   benefits   administered   by   the   Veterans
Administration (VA) or other Federal and state agencies.  As  a  rule,
either discharge entitles the veteran to full rights and benefits.”

      3. His assertion he was discharged in  violation  of  AFIs  that
required he be given a hearing if the discharge  could  result  in  an
UOTHC discharge is  wrong.   AFI  36-3209  states  “An  administrative
discharge board must be offered to the respondent if  the  recommended
characterization of service in the letter  of  notification  (LON)  is
UOTHC.  Additionally, a respondent who is  a  noncommissioned  officer
(does not apply to ANG) or has  six  or  more  years  of  satisfactory
service for retirement must be  offered  an  administrative  discharge
board.”  As his commander recommended a general  characterization  and
he did not have six years of service, he was not entitled to  a  board
hearing.

      4. Regarding his  contention  it  was  improper  to  initiate  a
discharge  proceeding  seeking  an  UOTHC  characterization  and  then
initiate a subsequent proceeding seeking a  general  characterization,
there is no restriction anywhere in  the  discharge  instruction  that
disallows this.  Moreover, his contention  the  initial  LON  was  not
rescinded prior to the issuance of the second LON  is  also  wrong  in
that by operation of law the issuance of the  second  LON  effectively
rescinded the first LON.

      5. Applicant asserts the  discharge  was  improper  because  the
alleged wrongful conduct occurred  while  on  civilian  status.   This
argument has no merit as he reported for the  Unit  Training  Assembly
(UTA) under the influence of cocaine.  Service is a privilege,  not  a
right, and those who use illegal drugs, whether during a UTA  or  not,
lose that privilege.

      6. While he claims the discharge process took almost one year to
complete, notably absent from  the  complaint  is  the  allegation  he
suffered any prejudice resulting from the delay.  To the contrary,  he
received and enjoyed significant benefits from extending the discharge
process, such as pay from his federal technician  position.   Further,
three months of the delay can be  attributed  directly  to  extensions
requested by him and his counsel.   Additionally,  while  AFI  36-3209
intimates discharge action must be initiated  promptly,  there  is  no
time limit for initiating any discharge action and failure  to  do  so
does not at anytime constitute a constructive waiver.

       7.  His  contention  the  discharge  action  did  not   receive
meaningful review is incorrect.  The action was  extensively  reviewed
by Judge Advocates at the Wing and State level.  In order to ensure no
conflict of interest,  a  Staff  Judge  Advocate  from  the  State  of
Connecticut provided  an  independent  review  and  found  the  action
legally sufficient in a four-page legal review.

DPFOC’s complete evaluation, with attachments, is at Exhibit C.

_________________________________________________________________

APPLICANT'S REVIEW OF AIR FORCE EVALUATION:

Counsel contends his client has been denied every opportunity to  have
a hearing with its additional procedural protections, such as  calling
and  cross-examining  witnesses.   Counsel   contends   his   client’s
leadership actually admits to changing their recommendation of service
characterization for the sole purpose of avoiding the time and expense
of conducting an administrative discharge board.  Counsel cites Holley
v. United States wherein the  precedent  was  established  that  if  a
military person is discharged without a hearing  when  that  discharge
creates  a  stigma,  and  the   stigma-producing   document   contains
information that may not be true, then his client  is  entitled  as  a
matter of constitutional due process to a hearing.

Counsel  states  his  client’s  discharge  was  executed   without   a
meaningful review and that the Air Force admits its legal  review  was
post dated.  Counsel contends the command ordered two further  reviews
because the first review was  considered  inadequate.   Counsel  notes
several inconsistencies in dates between the three noted legal reviews
and the actual discharge and states this  case  was  flawed  from  the
beginning.  He contends his client should not have to  go  to  federal
court to obtain correction of his records.

_________________________________________________________________

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.  After a thorough review  of  the
evidence of record and applicant's submission, we  are  not  persuaded
that his uncorroborated assertions of evidence  tampering,  denial  of
due process and lack of  meaningful  review,  in  and  by  themselves,
sufficiently persuasive to override the rationale provided by the  Air
National  Guard.   Therefore,  we   agree   with   the   opinion   and
recommendation  of  the  Air  National   Guard   office   of   primary
responsibility and adopt the rationale expressed as the basis for  our
decision that the applicant has failed to sustain his burden of having
suffered either an error or injustice.  In arriving at  our  decision,
we  are  keenly  aware  that  we  lack  the  authority  to  order  the
applicant’s reinstatement into the  New  York  ANG  even  if  we  were
predisposed to do so.

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  issue(s)   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 AFBCMR Docket Number BC-
2004-02844  in  Executive  Session  on  25  October  2005,  under  the
provisions of AFI 36-2603:

      Mr. John B. Hennessey, Panel Chair
      Ms. Janet I. Hassan, Member
      Ms. LeLoy W. Cottrell, Member


The following documentary evidence was considered:

    Exhibit A.  DD Form 149, dated 9 Sep 04, w/atchs.
    Exhibit B.  Applicant's Master Personnel Records.
    Exhibit C.  Letter, ANG/DPFOC, dated 27 Jul 05, w/atchs.
    Exhibit D.  Letter, SAF/MRBR, dated 7 Sep 05.
    Exhibit E.  Letter, Counsel, dated 19 Oct 05.


                                   JOHN B. HENNESSEY
                                   Panel Chair