RECORD OF PROCEEDINGS
         AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS

IN THE MATTER OF:      DOCKET NUMBER:  BC-2006-01178
            INDEX CODE:  110.02

            COUNSEL:  Michael J. Calabro

            HEARING DESIRED: YES

_________________________________________________________________

APPLICANT REQUESTS THAT:

His record be corrected to show that all:

      a. Reference to  an  Administrative  Discharge  Board  (ADB)  be
removed from his record.

      b. Reference to actions taken by the USAF and the  Massachusetts
Air National Guard (MAANG) as a result of the ADB be removed from  his
record.

      c. Entries in his National Guard Bureau Form 22 (NGB  Form  22),
Report of Separation and Record of Service, relating  to  the  ADB  be
removed or that the entire NGB 22 be removed.

      d. Entries in his NGB Form 439, Separation Certificate, relating
to the ADB be removed or that the entire NGB 439 be removed.

Finally, he be restored to his duty status as it existed prior to  the
ADB along with all rights and benefits and pay and  allowances  denied
him by the ADB findings.

_________________________________________________________________

APPLICANT CONTENDS THAT:

He was a master sergeant serving in the MAANG when he was activated in
response to the September 11, 2001 attacks.  He was activated from  23
September 2001 to 30 August 2003.  On or about  14 September  2002  he
was chosen to participate in a  random  urinalysis  for  drug  testing
purposes.   His  sample  returned  positive  for  tetrahydrocannabinol
(marijuana).  Since he did not  intentionally  use  marijuana  or  any
other substance that would contain tetrahydrocannabinol, he  concluded
either the test results  were  in  error  or  he  had  unintentionally
ingested such a substance.  He notes he was not advised of his Miranda
or Article 31 rights.  He returned to a civilian status but maintained
his membership in the MAANG.  On 27 November 2002, he was ordered back
to active military service for submission of hair samples for  further
analysis which he  was  told  was  a  much  more  accurate  test  than
urinalysis  testing.   The   hair   sample   returned   negative   for
tetrahydrocannabinol or any other  drug.   He  was  assigned  military
counsel and reviewed the events preceding the urinalysis testing.   He
remembered eating brownies made by his girlfriend.   She  submitted  a
statement to the ADB wherein she admitted including marijuana  in  the
brownies that the  applicant  did  eat  but  he  was  not  aware  they
contained marijuana.  Further, his assigned counsel  informed  him  he
was not being afforded all of the rights he was entitled to under  the
applicable USAF and ANG regulations,  and  the  government  could  not
produce sufficient evidence to show he intentionally  used  marijuana.
He was told the hair sample would show a  one-time  use  of  marijuana
that became the impetus for  the  applicant  to  provide  the  sample.
Later, in direct contrast to his original statement,  the  prosecuting
Judge Advocate General (JAG) argued that the hair test would show only
heavy use of the drug.  The prosecuting JAG was a material witness  to
the events that the government alleged formed the basis for  his  ADB.
However, he was not disqualified from representing the  government  as
requested  by  the  applicant  and  he  was  unfairly  shielded   from
testifying as  a  witness  due  to  his  status  as  the  government’s
attorney.  His counsel told  him  there  were  irregularities  in  the
testing lab’s procedure and he requested information to introduce that
evidence but was denied the evidence by the government.  He  was  also
informed that personnel at the testing lab had falsified documentation
regarding evidence related to his case.  The government  again  denied
him access to this evidence  for  the  purpose  of  presenting  it  as
evidence.  He lost his security  clearance  and  his  counsel  advised
against him disputing the action  because  the  government  could  not
prove its case at the ADB and, as a result,  his  clearance  would  be
restored.  The ADB eventually ruled against  him;  recommended  he  be
discharged; made contradictory statements regarding his intentions and
the  unlikely  chance  of  a  recurrence  of  drug   use.    The   ADB
recommendation for his characterization of service was not  consistent
with  his  military  record.   Since  he  was  a   fulltime   military
technician, he lost his job when he was no longer affiliated with  the
ANG.  He was never told why he was not afforded his rights or why  the
ADB process was not conducted in full compliance with the USAF and ANG
regulations.

In support of his appeal, counsel has provided the applicants personal
statement with several attachments.

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

_________________________________________________________________

STATEMENT OF FACTS:

On 2 October 2002, applicant was recommended for  discharge  for  drug
abuse with a characterization of service of Under Other Than Honorable
Conditions  (UOTHC).   He  acknowledged  receipt  of  his  commander’s
notification on the same date.  He had  undergone  a  urinalysis  test
that, on 13 September 2002, returned positive for  use  of  marijuana.
He underwent an ADB where the Board found he  did  use  marijuana  and
recommended he be discharged for drug abuse with a characterization of
service of Under Honorable Conditions  (UHC).   The  Adjutant  General
agreed with the Board’s findings and recommended he be discharged  for
drug abuse with a service characterized as General, UHC. He had served
a total of 17 years,  3  months,  and  8  days  at  the  time  of  his
discharge.

_________________________________________________________________

AIR FORCE EVALUATION:

NGB/A1POF recommends denial.  A1POF states he may submit  his  request
to the Discharge Review Board (DRB) for further consideration  of  his
request to change his characterization of service.

A1POF’s complete evaluation, with attachments, is at Exhibit B.

_________________________________________________________________

APPLICANT'S REVIEW OF AIR FORCE EVALUATION:

Counsel contends the ANG’s position consists of one page and fails  to
address any of  the  substantive  issues  in  this  case.   The  first
paragraph summarizes – without detail, the  applicant’s  issues.   The
second paragraph attempts to  summarize  –  without  any  detail,  the
administrative procedures that the applicant asserts  were  defective.
The fourth paragraph of the memorandum is a bald attempt to  summarily
dismiss the applicant and shuffle him off to the AFBCMR so the ANG can
avoid  dealing  with  the  problems   its   defective   administrative
procedures  created.   The  ANG  shows  no  respect  and  through  its
expressed cavalier attitude does nothing to solve the problems created
by the administrative process raised by the applicant thereby  leaving
the AFBCMR with a less than fully supported  decision  with  which  to
work.  If the ANG had properly researched the records in this case, it
would have discovered that no military orders had been issued  to  the
applicant to appear at the ADB.  Since  the  ANG  has  chosen  not  to
respond to the  substantive  issues  raised  in  the  application  and
supporting documents, the AFBCMR  should  accept  those  arguments  as
supported by substantial evidence, which is rebutted.

Counsel’s complete response, with attachments, is at Exhibit D.

_________________________________________________________________


THE BOARD CONCLUDES THAT:

1.  The applicant has exhausted all remedies provided by existing  law
or regulations.

2.  The application was timely filed.

3.  Sufficient relevant evidence has been presented to demonstrate the
existence of an error or an injustice.  We are inclined to agree  with
counsel’s argument that the ANG provided no  substantive  evidence  to
dispute any of the applicant’s contentions regarding the way  the  ADB
conducted  its  proceedings  or  reached  its  findings.   While   the
applicant’s random drug test  returned  positive  for  marijuana,  the
subsequent more sophisticated hair sample  testing  returned  negative
for marijuana or any other drug. Furthermore, no evidence was provided
to prove  beyond  a  reasonable  doubt  that  the  applicant  did  not
unknowingly  ingest  the  marijuana  laced  brownies  as  he  and  his
girlfriend  contend.  Additionally,  the  ANG  has  not  provided  any
evidence to show his service prior to the incident both as a full-time
military technician and a participating member of the MAANG of over 17
years was anything less than satisfactory.  The authority to reinstate
anyone into the ANG does not fall within the purview  of  this  Board.
However, in view of the above, we believe any and  all  references  to
the ADB should be  removed  from  the  applicant’s  records,  and  his
service  characterization  and  reenlistment  eligibility  should   be
changed to allow him the opportunity to apply  for  reenlistment  with
the  service  component  of  his  choosing.   Whether  or  not  he  is
successful will depend on the needs of the service component  and  our
recommendation in no way guarantees that he will be allowed to  return
to any branch of  the  service.   Therefore,  we  recommend  that  his
records be corrected to the extent indicated below.

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 RECOMMENDS THAT:

The pertinent military records of the  Department  of  the  Air  Force
relating to APPLICANT be corrected to show that:

            a. Any and all  records  of  an  Administrative  Discharge
Board (ADB), including the NGB Form 439 (Separation  Certificate),  be
declared void and removed from his record.

            b. His NGB Form 22, Report of  Separation  and  Record  of
Service, character of service be corrected  to  show  “Honorable”  and
reenlistment eligibility be corrected to show “Eligible,  rather  than
“General,   Under   Honorable   Conditions”   and   “Not    Eligible”,
respectively.

______________________________________________________________

The following members of the Board considered AFBCMR Docket Number BC-
2006-01178 in  Executive  Session  on  13  February  2007,  under  the
provisions of AFI 36-2603:



      Ms. Charlene M. Bradley, Panel Chair
      Mr. Patrick C. Daugherty, Member
      Ms. Josephine L. Davis, Member

All members  voted  to  correct  the  records,  as  recommended.   The
following documentary evidence was considered:

    Exhibit A.  DD Form 149, dated 1 Apr 06, w/atchs.
    Exhibit B.  Letter, NGB/A1POF, dated 29 Aug 06, w/atchs.
    Exhibit C.  Letter, SAF/MRBR, dated 8 Dec 06.
    Exhibit D.  Letter, Counsel, dated 8 Jan 07, w/atch.




                                   CHARLENE M. BRADLEY
                                   Panel Chair



                         DEPARTMENT OF THE AIR FORCE
                                WASHINGTON DC




[pic]
Office Of The Assistant Secretary



AFBCMR BC-2006-01178




MEMORANDUM FOR THE CHIEF OF STAFF

      Having received and considered the recommendation of the Air
Force Board for Correction of Military Records and under the authority
of Section 1552, Title 10, United States Code (70A Stat 116), it is
directed that:

      The pertinent military records of the Department of the Air
Force relating to APPLICANT, be corrected to show that:

            a. Any and all record of an Administrative Discharge Board
(ADB),  including  the  NGB  Form  439  (Separation  Certificate),  be
declared void and removed from his record.

            b. The NGB Form 22, Report of  Separation  and  Record  of
Service, character of service be corrected  to  show  “Honorable”  and
reenlistment eligibility be corrected to show “Eligible,  rather  than
“General,   Under   Honorable   Conditions”   and   “Not    Eligible”,
respectively.





     JOE G. LINEBERGER

     Director

     Air Force Review Boards Agency