RECORD OF PROCEEDINGS
         AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS

IN THE MATTER OF:	DOCKET NUMBER:  BC-2007-03899
		INDEX CODE:  110.01

		COUNSEL:  NONE

		HEARING DESIRED: YES

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APPLICANT REQUESTS THAT:

He be credited with the 13 days necessary for him to retire with 
an active duty retirement for length of service.

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APPLICANT CONTENDS THAT:

On 7 September 2005, he submitted to a random urinalysis as he 
had done many times in his Active Guard Reserve (AGR) career, 
but on this occasion, on 14 September 2005, he was notified that 
his sample had tested positive for cocaine.  He is innocent.  He 
had requested a polygraph test that he would pay for and the 
unit agreed.  However, his AGR removal package was forwarded to 
the Adjutant General’s (TAG) office on 29 November 2005 without 
the test being done.  The TAG then forwarded the AGR removal 
package to the Secretary of the Air Force (SAF) on 20 March 
2006.  SAF agreed with the request to remove him from his AGR 
tour on 15 November 2006.  He was told on 17 November 2006 that 
his AGR tour was over as of 1700 that same day – just 13 days 
short of an active duty retirement.  He had 12.5 days of leave 
but was not allowed to take it.  He contends that actions of his 
command were cruel and vindictive because he had contacted his 
local Senators and Congressmen.  All during the process of 
removing him from his AGR tour, senior staff was hinting to him 
that he would make his retirement date.  In fact, Air National 
Guard Instruction (ANGI) 36-101 specifically states that all 
drug cases would be handled in an expedient manner.  Fifteen 
months does not seem expeditious to him.  Further, he believes 
he was being made an example of as two years prior to his case, 
another member (senior master sergeant) tested positive for 
marijuana use.  She admitted using the drug and was only demoted 
to master sergeant and allowed to complete her tour and retire 
for length of service.  The command took tremendous heat over 
their decision.  For 15 months, he went to work everyday not 
knowing if he was going to lose his job over something he did 
not do.  His family has experienced tremendous stress and 
tension going through this ordeal.  He served his country with 
honor and integrity for over 25 years and was cruelly denied his 
active duty retirement by less than one day.

In support of his appeal, the applicant has provided a personal 
statement, his removal from the AGR program paperwork, several 
letters of support, the results of a polygraph exam, copies of 
his National Guard Bureau (NGB) Form 22, Report of Separation 
and Record of Service, his DD Form 214, Certificate of Release 
or Discharge from Active Duty, and a copy of his discharge 
order.

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

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STATEMENT OF FACTS:

The applicant, a former active duty member of the New Hampshire 
Air National Guard (NHANG) began his military service on 
13 January 1981.  He was progressively promoted to the grade of 
technical sergeant with a date of rank (DOR) of 20 January 1991.  

On 7 September 2005, he provided an annual urinalysis sample 
that tested positive for benzoylecgonine (BZE), a constituent of 
cocaine.  His sample was three times the 100 nanograms per 
milliliter cutoff value for BZE.  In November 2005, he was 
notified by his commander of his intent to involuntarily 
separate him from his AGR tour.  On 21 November 2005, the 
applicant responded with a rebuttal statement wherein he claimed 
while he was not able to provide a definitive reason for the 
positive test he offered a few possible reasons for the test 
turning out positive for cocaine.  He contended the Army either 
mishandled his sample; or the inordinate amount of Ginseng tea 
he drank while caring for his ill mother, in conjunction with 
his prescription medications including Oxycodone, Hydrocodone, 
Cephalexin, and Diazepam, could have contributed to a false 
positive reading.

On 20 March 2006 the TAG sent a memorandum to the SAF noting the 
applicant had already reached the 20 satisfactory years of 
service towards a Reserve retirement at age 60 and requested 
approval to remove the applicant from his AGR tour.  The 
applicant was between 18 and 20 years of active service, thus 
requiring the SAF to make the final decision as to removing the 
applicant from his AGR tour.  On 15 November 2006, the TAG 
received SAF approval for the removal of the applicant from his 
AGR tour and the TAG ordered that he be separated from his tour 
effective 17 November 2006.

The applicant had served 19 years, 11 months, and 17 days of 
Total Active Federal Military Service (TAFMS) and a total of 
22 years, 6 months, and 19 days of satisfactory service towards 
a Reserve retirement at age 60.

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AIR FORCE EVALUATION:

This application was sent to the NGB on 3 December 2007 for an 
advisory opinion based on the merits of the application.  To 
date, the NGB has failed to provide one.

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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 do not find his uncorroborated assertion of 
combined use of prescription medications and ginseng tea along 
with the Army’s possible mishandling of his sample, in and by 
themselves, sufficiently persuasive to convince us that they 
were potential contributors to his testing positive for cocaine.  
He has provided no evidence to show that any of the medications 
he was taking at the time could metabolize into the BZE found in 
his sample, nor has he provided evidence to show the Army 
mishandled his sample.  Despite his numerous letters of support 
and his heartfelt appeal, he simply has provided no concrete 
evidence to show his positive urinalysis test for cocaine was a 
result of anything but the apparent ingestion of cocaine.  With 
regard to how his processing was handled, we are of the opinion 
that his removal from the AGR program was conducted well within 
law and regulations and eventually received the approval of the 
Secretary of the Air Force.  Consequently, the applicant has 
failed to sustain his burden of having suffered either an error 
or injustice.  Therefore, in the absence of persuasive 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 issue involved.  
Therefore, the request for a hearing is not favorably 
considered.

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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.

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The following members of the Board considered AFBCMR Docket 
Number BC-2007-03899 in Executive Session on 2 April 2009, under 
the provisions of AFI 36-2603:

	XXXXXXXXXXXXXX, Panel Chair
	XXXXXXXXXXXXXX, Member
	XXXXXXXXXXXXXX, Member

The following documentary evidence was considered:

    Exhibit A: DD Form 149, dated 9 November 2007, w/atchs.




                                   XXXXXXXXXXXXXXX
                                   Panel Chair