RECORD OF PROCEEDINGS
         AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS

IN THE MATTER OF:      DOCKET NUMBER:  BC-2006-01752
            INDEX CODE:  100.03, 100.06

            COUNSEL:  xxxxxxxxxxx

            HEARING DESIRED: YES

MANDATORY CASE COMPLETION DATE:  10 NOV 2007

___________________________________________________________________

APPLICANT REQUESTS THAT:


1.  She be reinstated in the Air Force  Reserve  in  the  grade  of
master sergeant.

2.  All references to her being discharged  be  expunged  from  her
record.

3.  She receive back pay, allowances and credit for time  in  grade
for pay, promotion and retirement purposes from  the  date  of  her
separation to the date of reinstatement.

4.  As a minimum, upgrade her discharge to  honorable,  remove  the
separation action from her records, and show expiration of term  of
service as the reason for separation.

___________________________________________________________________

APPLICANT CONTENDS THAT:

An Air Force enlisted member  cannot  be  held  for  administrative
discharge processing beyond  his  or  her  expiration  of  term  of
service and she was not discharged until 26  September  2005.   The
administrative discharge board refused to hear or receive  evidence
that she voluntarily submitted to a  polygraph  examination,  which
she believes is not a harmless error.

In support of her request, the applicant submits a  statement  from
her attorney, documents related to her discharge, and 29  character
reference letters.

Her complete submission, with attachments, is at Exhibit A.

___________________________________________________________________

STATEMENT OF FACTS:

The applicant enlisted in the Air Force Reserve on 7 January  1988,
in the grade of airman basic.  On 8 February  2005,  her  commander
notified her that he was recommending she be  discharged  from  the
Air Force Reserve under the provisions of AFI 36-3209,  Chapter  3,
for Misconduct, Commission of a Serious Offense, Drug Abuse, with a
general (under honorable conditions) discharge.   The basis for his
action was that she did wrongfully use cocaine, as evidenced  by  a
positive urinalysis.  She was advised of her rights in the  matter.
She acknowledged receipt of the notification, and after  consulting
with counsel, submitted statements on her own behalf.

The discharge authority approved the separation and  directed  that
the  applicant  be  separated  with  a  general  (under   honorable
conditions) discharge.   She  was  separated  from  the  Air  Force
Reserves on 7 August 2005, with a general discharge, and received a
Reenlistment Eligibility status of “Ineligible.”

On  August  4,  2005,  the  Secretary  of  the  Air  Force  (SAFPC)
considered the applicant’s case for lengthy service probation (LSP)
and after considering the facts of the case, the recommendations of
the  commanders  concerned  and  the  matters  submitted   by   the
applicant, SAFPC  recommended  denial.   On  August  4,  2005,  the
Director, Air  Force  Review  Boards  Agency,  announced  that  the
approved administrative discharge of  the  applicant  be  executed.
(Exhibit B)

She served a  total  of  18  years,  and  17 days  of  satisfactory
service.

___________________________________________________________________

AIR FORCE EVALUATION:

AFRC/JAM recommends denial.  JAM states  in  part  the  applicant’s
discharge was completed by the end of her last term of  enlistment.
Concerning  the  applicant’s  assertion  that   evidence   of   her
accomplishment of a civilian polygraph was wrongfully  excluded  by
the Legal Advisor at the administrative discharge board, the  Legal
Advisor reached a proper decision that was  within  his  discretion
after weighing the  controlling  precedence  on  the  subject.   To
restate the government’s position, even in  criminal  cases,  where
the accused is at a far greater risk of jeopardy than merely losing
his/her job with the Air Force (as in an  administrative  discharge
proceeding), Military  Rules  of  Evidence  (MRE)  707  states,  in
relevant part “notwithstanding any  other  provision  of  law,  the
results of a polygraph examination,  the  opinion  of  a  polygraph
examiner, or any reference to an offer to  take,  or  taking  of  a
polygraph examination shall not be admitted into evidence.”   Thus,
under MRE 707 within military justice  actions,  even  the  mention
that an accused  took  a  polygraph  is  inadmissible.   The  Legal
Advisor exercised sound discretion in deciding  not  to  admit  the
fact that the applicant had taken a polygraph.  That  decision  was
based on statutory law, case law, Air Force Instructions,  and  the
policy considerations behind  the  overall  topic  of  the  use  of
polygraphs in fact-finding legal proceedings.  The applicant’s
discharge action, with a general service  characterization,  was  a
proper result of the administrative discharge  process  and  should
not be modified.

A complete copy of the evaluation, with attachment, is  at  Exhibit
C.

___________________________________________________________________

APPLICANT'S REVIEW OF AIR FORCE EVALUATION:

The applicant through her attorney, states they now agree  the  Air
Force followed proper procedures in separating  her.   Nonetheless,
they maintain their position on the polygraph issue.  This was  not
a court-martial and RCM 707 does not apply here.  The Board has  on
innumerable occasions told the attorney that administrative  boards
operate under rules that cannot be measured  by  rules  for  court-
martial.  There is absolutely no  rule,  regulation  or  direction,
which precludes a respondent in an administrative separation  board
from saying they took a polygraph.  Since it  is  not  excluded  by
rule, it is admissible.  The only available objection  to  evidence
in  an  administrative  separation  board  is  on  the  ground   of
relevancy.  The government went into this  board  with  a  positive
drug test that proved nothing, but by law allows for  an  inference
that the drug was  taken  intentionally.   This  inference  is  not
grounded in science.  It is a  fantasy  created  by  the  Court  of
Appeals for the Armed Forces to support the drug  testing  program.
The fact that applicant was willing to take the polygraph serves to
rebut the inference and such evidence is  relevant.   To  deny  the
most liberal use of evidence in these cases would be yet  one  more
confirmation of the bias favoring the government in such cases.

The applicant’s complete response is at Exhibit E.

The applicant through her  attorney,  states  the  memorandum  from
SAF/MRBP and the legal review from AFRC/JA demonstrated she  was  a
highly regarded service member.  She took every  step  possible  to
show her innocence, to include  hair  testing.   The  hair  testing
showed she was not a multiple time user of cocaine.  She then  took
a private polygraph,  which  she  passed.   In  regard  to  the  JA
statement concerning  the  civilian  administered  polygraph,  they
believe this was an outrageous abuse of  JA’s  position.   In  this
case an outstanding person has been wrongly found to have knowingly
and willfully used cocaine.  Every benefit of the doubt should have
been given to her, including  the  polygraph  evidence  and  relief
should be granted.

The applicant’s complete response is at Exhibit F.

___________________________________________________________________

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 error or injustice.  After a careful review of the
evidence of record, and the evidence provided by the applicant,  we
are persuaded the requested relief should be  granted.   The  Board
notes the applicant tested positive for  cocaine  during  a  random
urinalysis.  Subsequently, an administrative discharge board  found
that she wrongfully used cocaine and  she  was  discharged  with  a
general (under honorable conditions)  discharge.   We  believe  the
possibility exists that the urine specimen taken from the applicant
and the subsequent positive results could have been in  error.   In
this respect we note, in an effort to clear her name, the applicant
submitted urine and hair samples to a civilian laboratory the  same
day she  was  notified  of  the  positive  random  urinalysis.   An
analysis of these samples was determined to  be  negative  for  the
presence of cocaine.  Furthermore, the evidence or record shows the
Medical Review Officer (MRO) assigned to her case, interviewed  the
applicant and was informed she consumed a variety of herbal teas to
treat neuralgia as well as hot flashes.  Subsequently, she provided
samples of these teas, which the MRO conducted extensive  research.
He concluded that teas containing black or blue cohosh, which was a
major ingredient in the teas  she  provided,  had  caused  positive
tests for cocaine in individuals.   She  also  voluntarily  took  a
polygraph  examination  administered  by   a   civilian   Polygraph
Examiner, who opined that, no deception was indicated to  questions
referencing the use of cocaine.  The Board  also  acknowledges  the
overwhelming support by her commander,  former  commander  and  co-
workers, who had first-hand knowledge of the applicant’s character,
and expressed undeniable support  of  her  integrity,  honesty  and
trustworthiness.  In view of the above, and in an effort to  remove
any possibility of an injustice to the applicant,  we  believe  the
totality of the evidence presented warrants favorable consideration
of her requests.  Therefore, we recommend the  applicant’s  records
be corrected to the extent set forth 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. All documents and references to  her  administrative
discharge under the provisions of AFI 36-3209, Chapter 3,  be,  and
hereby are, declared void and removed from her records.

            b. On 7 August 2005, she was not  discharged  from  the
Air Force Reserve under the provisions of AFI 36-3209, but, on that
date, she was honorably discharged and on 8 August 2005, reenlisted
in the Air Force Reserve  for  a  period  of  four  (4)  years  and
remained assigned to the 916th Aerospace Medicine Flight,  Seymour-
Johnson AFB, North Carolina.

            c. She was credited with an additional 27  paid  active
duty  points,  48  paid  inactive  duty  training  points,  and  15
membership points, totaling 90 points for retention/retirement year
16 September 2004 through 15 September 2005, resulting in 90  total
points, and a year of satisfactory Federal service.

            d. She was credited with an additional 27  paid  active
duty  points,  48  paid  inactive  duty  training  points,  and  15
membership points, totaling 90 points for retention/retirement year
16 September 2005 through 15 September 2006, resulting in 90  total
points, and a year of satisfactory Federal service.

___________________________________________________________________

The following members of the Board considered Docket Number BC-2006-
01752 in Executive Session on 12  December  2006  and  28  February
2007, under the provisions of AFI 36-2603:

                 Mr. John B. Hennessey, Panel Chair
                 Ms. Patricia R. Collins, Member
                 Ms. Teri G. Spoutz, Member

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

      Exhibit A. DD Form 149, dated 11 Mar 06, w/atchs.
      Exhibit B. Applicant's Master Personnel Records.
      Exhibit C. Letter, ARPC/IGQ, dated 12 Jul 06, w/atchs.
      Exhibit D. Letter, SAF/MRBR, dated 4 Aug 06.
      Exhibit E. Letter, Applicant’s Attorney, dated 16 Nov 06.
      Exhibit F. Letter, Applicant’s Attorney, dated 14 Feb 07.





                                   JOHN B. HENNESSEY
                                   Panel Chair


                   MEMORANDUM FOR THE EXECUTIVE DIRECTOR, AIR FORCE BOARD
                   FOR CORRECTION OF MILITARY RECORDS (AFBCMR)

FROM: SAF/MR

SUBJECT:    AFBCMR Case on XXXXXXXXXXXXXXXXXXXX

      I have carefully considered all of the circumstances of this case and
do not find the rationale of the AFBCMR panel sufficiently persuasive so as
to approve its recommendation to reinstate the applicant into an active
Reserve position and award her two additional years of satisfactory service
she did not earn.

      The applicant was administratively discharged for wrongful use of
cocaine as evidenced by a positive urinalysis obtained during random
testing on July 10, 2004.  At the time of her separation from the Air Force
Reserve on August 4, 2005, she had 18 years and 17 days of satisfactory
service.

      In her application to the AFBCMR, she contends an Air Force enlisted
member cannot be held for administrative discharge processing beyond her
expiration of term of service (ETS); that she was not discharged until
September 26, 2005; and, that the administrative discharge board refused to
hear or receive evidence that she voluntarily submitted to a polygraph
examination, which she believes is not harmless error.

      The Board speculates the applicant’s urine specimen and the subsequent
positive results may have been in error based on a civilian laboratory’s
negative test results of urine and hair samples obtained from the applicant
on 17 August 2004; the same day she was notified of the Air Force’s
positive random urinalysis results.  I disagree.

      The applicant offers numerous reasons why her urinalysis sample tested
positive for cocaine use; i.e., various medications she was taking at the
time; someone placed cocaine in her drink during an Earth Wind and Fire
concert the day prior to testing; the herbal teas she drank were
contaminated with cocaine; and ultimately the government test results were
erroneous.  These contentions, however, were thoroughly reviewed during the
administrative discharge proceedings and the Lengthy Service Probation
(LSP) consideration by the Secretary of the Air Force Personnel Council
(SAFPC) and found to be without merit.  The applicant also argues her
discharge should be set aside because she was held beyond her (ETS)
[Although she apparently wasn’t notified of her discharge in a timely
manner, she was discharged on August 4, 2005 which was prior to her (ETS)].

      Lastly, the applicant relies on the fact that her urine and hair
samples submitted to a civilian Laboratory on the date she was advised that
she had tested positive for cocaine tested negative and the fact that she
voluntarily took and passed a civilian polygraph test.  I note, however,
that given the short period of time cocaine remains in the system the best
the negative civilian Laboratory tests proved was that she was not a
chronic user of cocaine.  She passed the civilian polygraph test, but
refused to take the test offered by the Office of Special Investigation
(OSI); an action that is not entirely consistent with the assertion of
innocence.

      In summary, the applicant had a stellar record and one in which she
could be justifiably proud.  But, as noted by the Director of the Secretary
of the Air Force, Personnel Council, the Air Force was left with the
scientific evidence that she had used cocaine and no reasonable story from
her to show how it got there.  In view of the foregoing and in the absence
of substantial evidence that the applicant, a relatively senior NCO, did
not knowingly use cocaine, it is my decision that the application be denied
in its entirety.  To do otherwise, in my view, would be grossly unfair to
the numerous individuals who have tested positive for illegal drugs and
have had promising careers terminated early because of the failure to
adhere to Air Force policy.









                                  CRAIG W. DUEHRING
                                  Assistant Secretary of the Air Force
                                  (Manpower and Reserve Affairs)