RECORD OF PROCEEDINGS
         AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS

IN THE MATTER OF:      DOCKET NUMBER:  BC-2003-00940
            INDEX CODE:  110.00

      XXXXXXXXXXXXX    COUNSEL:  DAVID P. SHELDON

            HEARING DESIRED: YES


MANDATORY CASE COMPLETION DATE:  17 MAY 2007


___________________________________________________________________

APPLICANT REQUESTS THAT:

Her administrative  discharge  action  be  set  aside  and  she  be
reinstated in the Air Force Reserve  so  she  can  be  afforded  an
opportunity to retire with 20 years of service, to include back pay
and allowances; in the alterative she be credited with 20 years  of
service and transferred to the Retired Reserve.

Examiner’s Note:  Applicant’s case file was originally submitted on
10 Mar 03, and at her counsel’s request was  temporarily  withdrawn
on 30 Jun 03.

___________________________________________________________________

APPLICANT CONTENDS THAT:

Through her counsel, she contends that, while a technical  sergeant
in the US Air Force Reserve (USAFR), with just less  than  19 years
of satisfactory service; she was ostensibly ordered to be separated
with an under other than honorable  discharge  due  to  a  positive
urinalysis test result.  Based on  the  improper  handling  of  the
discharge board action and her lengthy career, she believes it  was
an error and an injustice for her to be administratively  separated
in that manner.

Prior to her discharge, applicant had  been  noted  throughout  her
career as an outstanding military member and performed  her  duties
in a highly outstanding and effective manner.   She  served  as  an
Administrative  Specialist,   Billeting   Clerk,   Spanish/Linguist
Interpreter, and as an Information Management Specialist.

She was randomly selected for urinalysis  testing  and  provided  a
urine sample.  The government contended that her urine  sample  was
positive for  the  metabolite  for  marijuana.   She  requested  to
retest, but it was not permitted.  At her discharge board, she  was
afforded minimal due process, compared to what she would have  been
entitled  to  if  she  had  faced  a  court-martial  for  the  same
allegation.  In  essence,  she  states  the  board  was  improperly
instructed regarding the burden of proof, the elements of  wrongful
use of marijuana and the  definitions  needed  to  determine  those
elements.

In support of her appeal, applicant submitted a  statement  through
her counsel; a copy of her discharge correspondence; extracts  from
her military records consisting  of  performance  reports,  service
credit   history,   awards/decorations,   along   with   associated
enlistment/separation documents; a  copy  of  her  discharge  board
record of proceedings, and other supporting documents.

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

___________________________________________________________________

STATEMENT OF FACTS:

Prior to the events under review, applicant enlisted in the US Army
on 13 Feb 76, she served honorably in the US Army and Army  Reserve
until her discharge on 11 Sep 85.  On 12 Sep 85,  she  enlisted  in
the USAFR for a period of six years in the grade of staff sergeant.
 On 17 Aug 91, she reenlisted for a period of  six  years  and  was
discharged on 6  Jun  97.   She  entered  her  last  enlistment  on
7 Jun 97 for a period of six years.  She was promoted to the  grade
of technical sergeant with an effective date and date  of  rank  of
1 Nov 98.

On 5 Mar 99,  the  squadron  commander  recommended  administrative
discharge action against the applicant for misconduct, drug  abuse.
The basis for the proposed discharge action was that:

      On or about (o/a) 6 Jan  99  and  o/a  6  Feb  99,  applicant
wrongfully used a controlled substance, marijuana.

Before recommending discharge,  the  squadron  commander  read  the
applicant  her  rights  and  questioned  her  about  the   positive
urinalysis test results and although she did not  request  counsel,
she did request to take another  urinalysis  test.   Based  on  the
serious nature of the misconduct, he  recommended  her  service  be
characterized as under other  than  honorable  conditions  (UOTHC).
On 7 Mar 99, the Staff Judge Advocate found the case to be  legally
sufficient to support discharge and recommended  her  discharge  be
characterized as UOTHC.

By letter, dated 12 Apr 99, HQ AFRC/DPM forwarded the applicant the
Notification of Initiation of Separation Action under  AFI  36-3209
to  her  address.   They  advised  her  of  her  rights  to  submit
statements in her own behalf and  of  an  administrative  discharge
board.  On  20  Apr  99,  applicant  acknowledged  receipt  of  the
discharge notification and elected to have her  case  heard  by  an
administrative discharge board, with  a  personal  appearance,  and
that she be represented by military counsel.  A discharge board was
convened on 13 Sep 99, the  applicant  was  present  at  the  board
hearing and represented by military counsel.  The board  found  the
applicant was subject to discharge for drug abuse  and  recommended
she be discharged with a UOTHC service characterization.

On 20 Dec 99, the Secretary of  the  Air  Force  Personnel  Council
directed the approved  administrative  discharge  be  executed  and
denied Lengthy  Service  Probation  (LSP).   At  the  time  of  the
initiation of the administrative discharge action, she was credited
with 18 years, 11  months,  and  8  days  of  satisfactory  federal
service, including 6 years, 7 months, and 23 days  as  active  duty
service.  On 22 Jan 00, applicant was discharged from the Air Force
Reserve, by reason of misconduct, commission of a serious  offense,
drug  abuse,  with  service  characterized  as  under  other   than
honorable conditions.

___________________________________________________________________

AIR FORCE EVALUATION:

HQ AFRC/JA reviewed this application and recommended denial.   They
found the original action legally sufficient.

The applicant  sets  out  two  reasons  for  granting  her  relief:
(1) that the discharge board was  improperly  instructed  regarding
the burden of proof, the elements of wrongful use of marijuana  and
the definitions necessary to properly determine those elements; and
(2) that the evidence was insufficient to prove the  applicant  had
wrongfully and knowingly used marijuana.  She argues that the  same
instructions that would be given in a court-martial for drug abuse…
where the government’s burden of proof is the “beyond a  reasonable
doubt: standard… should be applied in an administrative proceeding,
where the burden is a lower  threshold  of  “preponderance  of  the
evidence.”  The applicant’s  argument  is  without  merit  and  not
supported by competent legal authority.  The legal advisor gave the
appropriate instructions to the board members.

The applicant further argues there  was  insufficient  evidence  to
prove she wrongfully and knowingly used marijuana.  Once again, the
applicant seeks to equate  a  discharge  board  proceeding  with  a
criminal  trial,  where  the  burden  of  proof  is  different.   A
preponderance of the  evidence,  as  established  by  the  positive
urinalysis, proved the applicant wrongfully  used  marijuana.   The
members were properly instructed regarding “wrongfulness,” and were
given the so-called, “Good  Airman”  instruction,  which  reads  in
pertinent part as follows: “Evidence of the respondent’s  character
for honesty and truthfulness may be sufficient to cause doubt as to
the wrongfulness of her act.  On the  other  hand,  other  evidence
tending to show the wrongfulness of her act may  outweigh  evidence
of the respondent’s good character for  honesty  and  truthfulness.
There was no error.

The HQ AFRC/JA complete evaluation is at Exhibit C.

HQ AFRC/DPZ also recommended denial.  Additionally, they noted that
contrary to the applicant’s claim she is not entitled to receive  a
DD Form 214 for her service immediately preceding her discharge.  A
DD Form 214 is authorized only when a member serves  in  an  active
duty status for 90 continuous days  prior  to  their  release  from
active duty status.

The HQ AFRC/DPZ complete evaluation is at Exhibit D.

___________________________________________________________________

APPLICANT'S REVIEW OF AIR FORCE EVALUATION:

By DD Form 149, dated 5 Oct 05, and  by  letter,  through  counsel,
dated 3 Nov 05, she reiterated her original  contentions  that  the
discharge board was improperly instructed regarding the  burden  of
proof, the elements of wrongful use of marijuana and the definition
needed to determine those elements.

Applicant’s complete response, with attachments, 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 not timely filed; however,  it  is  in  the
interest of justice to excuse the failure to timely file.

3.  Insufficient  relevant   evidence   has   been   presented   to
demonstrate the existence of an error or injustice.  We took notice
of the applicant's complete submission in judging the merits of the
case to  include  her  contention  that  the  discharge  board  was
improperly instructed regarding the burden of proof,  the  elements
of  wrongful  use  of  marijuana  and  the  definitions  needed  to
determine those elements; however, we agree with the  opinions  and
recommendations of AFRC/JA and AFRC/DPZ and adopt  their  rationale
as the basis for our conclusion the  applicant  has  not  been  the
victim of an error or injustice.   Therefore,  in  the  absence  of
evidence to the contrary, we find no compelling basis to  recommend
granting the relief sought in 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 AFBCMR Docket  Number
BC-2003-00940 in Executive Session on  1  August  2006,  under  the
provisions of AFI 36-2603:

      Mr. John B. Hennessey, Panel Chair
      Mr. Elwood C. Lewis III, Member
      Ms. Donna D. Jonkoff, Member

The following documentary evidence was considered:

    Exhibit A.  DD Form 149, dated 5 Mar 03, w/atchs.
    Exhibit B.  Applicant's Master Personnel Records.
    Exhibit C.  Letter, HQ AFRC/JA, dated 19 May 03.
    Exhibit D.  Letter, HQ AFRC/DPZ, dated 21 May 03.
    Exhibit E.  Letter, SAF/MRBR, dated 4 Jun 03.
    Exhibit F.  Letter, SAF/MRBC, dated 9 Jul 03.
    Exhibit G.  Counsel’s Response, dated 5 Oct 05, w/atchs.




                                   JOHN B. HENNESSEY
                                   Panel Chair