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 Generals (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.
Applicants 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 Armys 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
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