RECORD OF PROCEEDINGS
             AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS


IN THE MATTER OF:      DOCKET NUMBER:  BC-2006-01201

      XXXXXXX    COUNSEL: CHARLES W. GITTINS

            HEARING DESIRED: YES

_________________________________________________________________

APPLICANT REQUESTS THAT:

The Article 15 imposed on 22 June 2005, be removed from his record; he
receive back pay in the amount of the difference between airman  first
class (E-3) and airman (E-2) pay for the period 22 June to  12  August
2005; his discharge be upgraded from general to honorable and his  re-
enlistment code (RE) be changed to RE-1.

_________________________________________________________________

APPLICANT CONTENDS THAT:

On or about 28 March 2005, he provided a  urine  sample,  pursuant  to
unit random testing. The sample  was  tested  and  confirmed  for  the
presence of THC metabolite at  315  ng-mL.  Above  the  15  ng-mL  DoD
cutoff. He was processed for  an  Article  15.  However,  because  due
process provisions of Article 15 were not complied with,  the  Article
15 was set aside.

A second Article 15 was presented  to  him.  This  time,  due  process
provisions of the Article  15  were  complied  with,  he  specifically
denied knowing the use of marijuana, and provided substantial  matters
for the consideration of the commander in extenuation and  mitigation.
In those matters, he explained that he had been provided  a  cigar  on
the weekend, which he  shared  with  several  other  persons  that  he
believed to be the source of the positive test for marijuana.

He further indicated that he was innocent of knowing use of  marijuana
and wanted to demand a trial by court-marital but feared the  negative
implications of a possible  federal  conviction  if  he  made  such  a
demand. He told his commander that he did not knowingly use  marijuana
and was unaware of the nature of the substance when he took a puff  on
the cigar. In addition  to  the  written  statement  provided  to  the
commander explaining that he had  not  knowingly  used  marijuana,  he
presented the commander seven letters from  his  supervisors  and  co-
workers recommending  his  continued  military  service.  Despite  the
strong presentation, the commander imposed  punishment,  reducing  him
from pay grade E-3 to E-2 and imposing 14 days of extra duties.

In accordance with the mandatory processing requirements  of  AFI  36-
3208, he was processed for an administrative discharge  by  reason  of
alleged drug use. The commander notified him that the least  favorable
characterization he could  receive  was  a  general  (under  honorable
conditions) discharge and therefore, no administrative discharge board
was authorized.

In support of the application, applicant submits counsel's  brief  and
numerous other documents relating to his request.

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

_________________________________________________________________

STATEMENT OF FACTS:

The applicant enlisted in the Regular Air Force as an airman basic  on
22 January 2003.

On 28 March 2005, the applicant provided a urine sample as part  of  a
random unit drug test. The applicant  tested  positive  for  marijuana
use.

On 23 May 2005, the applicant's commander served him with an offer  of
nonjudicial punishment under Article 15, UCMJ,  for  wrongfully  using
marijuana. After consulting with  a  military  defense  attorney,  the
applicant waived the right to trial by court-martial on 26  May  2005.
At this time, he also offered a written presentation and  requested  a
personal appearance before the commander.

On 10 June 2005, the commander found the applicant guilty, but due  to
an unknown  error  in  the  nonjudicial  punishment  processing,  this
Article 15 was withdrawn while the applicant was preparing his appeal.

On 14 June 2005, the applicant's commander reoffered  the  nonjudicial
punishment. The applicant again  sought  the  assistance  of  military
counsel, elected to accept the Article 15  and  waived  his  right  to
trial by court-martial. He also provided his written presentation  and
repeated his request for a personal appearance.

On 22 June 2005, the commander found  that  the  applicant  wrongfully
used marijuana, reduced him in rank to Amn (E-2), and ordered  him  to
perform 14  days  of  extra  duty.  The  applicant's  appeal  of  this
nonjudicial action was later denied by his group commander.

On  1  August  2005,  the  applicant's  commander  recommended  he  be
discharged from the Air Force for  drug  use  with  a  general  (under
honorable conditions) discharge. Because of his rank and time  in  the
Air Force,  the  applicant  was  not  entitled  to  an  administrative
discharge board. The separation authority in this cased dismissed  the
applicant's request for retention and directed he  be  separated  from
the  Air  Force  for  drug  abuse  with  a  general  (under  honorable
conditions) discharge.

On 12 August 2005, the applicant was discharged under  the  provisions
of AFI 36-3208, Administrative Separation of Airmen (misconduct), with
service characterized as general (under honorable conditions), with an
RE code of 2B, in the grade of airman.  He served 2  years,  6  months
and 20 days of total active military service.

_________________________________________________________________

AIR FORCE EVALUATION:

AFLOA/JAM recommended denial and stated the applicant has provided  no
evidence of a clear error or  injustice  related  to  the  nonjudicial
punishment action. The applicant asserts there were no  legal  reviews
of the discharge package. This is incorrect; the legal review is dated
4 August 2005. Additionally, the applicant asserts  the  legal  review
should have brought to the attention of the separation authority  that
the separation authority was required to  consider  and  evaluate  the
applicant's request for waiver of  the  discharge.  The  legal  review
states in part the applicant "asks that you waive discharge processing
in his case based on the information  provided  in  his  response  and
attachments. However, if you feel that an administrative discharge  is
the proper outcome, he asks that you consider approving his  discharge
with  an  honorable  characterization.   Therefore,   the   separation
authority was properly informed of the  requirement  to  consider  and
evaluate the waiver request, which he did.

The applicant asserts he was entitled to an  administrative  discharge
board. The authority for the action taken  was  AFPD  36-32,  Military
Retirements and Separations and AFI 36-3208, Administrative Separation
of Airmen, Chapter 5, para 5.54. The applicant was not entitled to  an
administrative discharge board.

AFLOA/JAM complete evaluation is at Exhibit C.

AFPC/DPPRS recommended denial and stated based on the documentation in
file in the master personnel records,  the  discharge  was  consistent
with the procedural and  substantive  requirements  of  the  discharge
regulation. The discharge was within the discretion of  the  discharge
authority.  Applicant provided no facts warranting  a  change  to  his
character of service or reenlistment eligibility code.

AFPC/DPPRS complete evaluation is at Exhibit D.

AFPC/JA recommended denial and stated the applicant incorrectly  avers
that by requesting retention he obligated the separation authority  to
"make  findings  regarding   the   existence   or   non-existence   of
circumstances warranting retention."  He  claims  that  there  "is  no
evidence that the Separation Authority considered this request, as  it
was not addressed in any way in the perfunctory memorandum prepared by
the separation authority." The applicant's  records  reveal,  however,
the separation authority was fully aware of this retention request, as
his  response  was  included  in  the  materials  forwarded  for   the
separation  authority's  consideration.  The  applicant  also  wrongly
asserts, "there  was  no  legal  review  contained  in  the  discharge
package." In his legal opinion to the separation authority, the  staff
judge advocate specifically commented on the applicant's request to be
retained but recommended against this course  of  action  because  the
applicant failed to meet his burden of proving the retention criteria.

No provision contained in the Air Force enlisted discharge  regulation
requires the separation authority to make the special findings on  the
retention request, as the applicant contends. Indeed,  the  regulatory
guidance is quite unambiguous that the separation authority was  under
no obligation to comment on the request for retention specifically  if
he decided that it was not appropriate the applicant remain in the Air
Force.

Notwithstanding  the  applicant's  assertions  to  the  contrary,  the
applicant's retention request was processed in  full  accordance  with
AFI 36-3208.

AFPC/JA complete evaluation is at Exhibit E.

_________________________________________________________________

APPLICANT'S REVIEW OF AIR FORCE EVALUATION:

The  applicant's  counsel  reviewed  the  Air  Force  evaluations  and
provided a six page legal brief addressing each advisory.

Counsel's complete response 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, the Board excused
the failure to timely file.

3.  Insufficient relevant evidence has been presented  to  demonstrate
the existence of an error or injustice that would warrant set aside of
his Article 15 action, restoration to the grade of airman first class,
or a change to his RE code.  We find no evidence of error in this case
and after thoroughly reviewing the documentation provided  in  support
of his appeal, we  do  not  believe  he  has  suffered  an  injustice.
Evidence has not been presented which would lead us  to  believe  that
the nonjudicial punishment initiated was improper.  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  written
matters for review by the imposing commander.  After  considering  the
matters raised by the applicant, the  commander  determined  that  the
applicant had committed the offense alleged and imposed punishment  on
the applicant.  The applicant 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,  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 issue 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 a 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-2006-
01201 in Executive Session on 15 November 2006, under  the  provisions
of AFI 36-2603:

                 Ms. B. J. White-Olson, Panel Chair
                 Mr. Patrick C. Daugherty, Member
                 Mr. Wallace F. Beard Jr., Member

The following documentary evidence was considered in  connection  with
AFBCMR Docket Number BC-2006-01201:

      Exhibit A. DD Form 149, dated 13 Apr 06, w/atch.
      Exhibit B. Applicant's Master Personnel Records.
      Exhibit C. Letter, AFLOA/JAJM, dated 17 Jun 06.
      Exhibit D. Letter, AFPC/DPPRS, dated 30 Jun 06.
      Exhibit E. Letter, AFPC/JA, dated 21 Jul 06.
      Exhibit F. Letter, SAF/MRBR, dated 28 Jul 06.
      Exhibit G. Counsel’s Response, dated 30 Sep 06




      B. J. WHITE-OLSON
      Panel Chair