RECORD OF PROCEEDINGS
             AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS

IN THE MATTER OF:                       DOCKET NUMBER:  BC-2007-00706
                                             INDEX CODE:  106.00
      XXXXXXXXXXXXXXX                   COUNSEL:  NONE

                                             HEARING DESIRED:  NO


MANDATORY CASE COMPLETION DATE:  26 August 2008


________________________________________________________________

APPLICANT REQUESTS THAT:

His  under  honorable  conditions  (general)  discharge   be   upgraded   to
honorable.

________________________________________________________________

APPLICANT CONTENDS THAT:

His discharge should be upgraded due to the fact that it  was  based  on  an
isolated incident  and  he  served  72  months  without  any  other  adverse
actions.

It has been more than 20 years  since  the  incident,  he  regrets  that  it
happened as it ruined his military career, and he is now in the  process  of
becoming a Federal Agent with the Department of Homeland Security.

In support of his appeal, he has submitted copies of his DD  Form  214,  Air
Force Achievement Medal award, Student Leader  Program  certificate,  Patrol
Dog  Handler   Drug   Detection   Course   Superior   Academic   Achievement
certificate, and a DD Form 293,  Application  For  Review  of  Discharge  or
Dismissal From the Armed Forces of the United States,

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

________________________________________________________________

STATEMENT OF FACTS:

Applicant enlisted in the Regular Air Force on 6 February 1980,  and  served
as a Law Enforcement Specialist and as a Carpentry Specialist  before  being
discharged on 19 June 1986.

Although not used as a basis for discharge, applicant’s records contain  the
following derogatory data:
        a. Article 15, dated 18 November 1982, for  use  of  marijuana,  for
           which he received a reduction to the grade of airman first  class
           (E-3) and forfeiture of $100.00 per month for two months
        b. Referral Airman Performance Report,  closing  22  November  1982,
           which contains the comment “He was relieved from Security  Police
           duties for abusing drugs.”
        c. Letter of Reprimand, dated 20 September 1984, for  driving  under
           the influence of alcohol

On 22 May  1986,  applicant  was  notified  of  his  commander's  intent  to
recommend him for an under  honorable  conditions  (general)  discharge  for
drug abuse, specifically, on 2 May 1986, he  was  charged  with,  and  plead
guilty in magistrates court, to simple possession of  marijuana  in  Sumter,
South Carolina, for which he received a Letter of Reprimand,  dated  14  May
1986.

The commander advised applicant of  his  right  to  consult  legal  counsel,
present his case to an administrative discharge  board,  be  represented  by
legal counsel at a board hearing, submit statements in his  own  behalf,  or
waive the above rights after consulting with counsel.

On  23  May  1986,  after  consulting  with  counsel,  applicant  offered  a
conditional  waiver  of  his  rights  associated  with   an   administrative
discharge board,  contingent  on  his  receiving  no  less  than  a  general
discharge under honorable conditions.

A legal review was conducted on 30  May  1986,  in  which  the  staff  judge
advocate noted that applicant was an NCO at  the  time  of  his  involvement
with marijuana, and that his NCO status was  subsequently  vacated  as  drug
abuse by NCOs was  unacceptable  conduct.   They  recommended  applicant  be
discharged for drug abuse with a general discharge characterization.

A resume of applicant's performance reports follows:

      PERIOD ENDING                     OVERALL EVALUATION

      28 Feb 1986                       9
      28 Feb 1985                       9
       9 Apr 1984                       9
      22 Nov 1983                       9
      22 Nov 1982                            7 (referral)
       5 Feb 1982                            9
       5 Feb 1981                            8

During his enlistment, applicant received an Air  Force  Achievement  Medal,
Air Force Good Conduct Medal, the Air Force Longevity  Service  Ribbon,  and
the Air Force Training Ribbon.

On 19 June 1986, applicant was discharged in the grade of Senior Airman  (E-
4), with an under honorable conditions discharge, in accordance with AFR 39-
10, paragraph 5-49c, drug abuse.  He  served  a  total  of  six  years,  six
months, and 14 days.

On 24 May 1993, applicant appealed to the Air Force Discharge  Review  Board
(AFDRB), requesting that his  records  be  reviewed  and  his  discharge  be
upgraded to honorable.  The AFDRB determined that neither  the  evidence  of
record nor that provided by  the  applicant  substantiated  an  inequity  or
impropriety that would justify a change of discharge, and denied his  appeal
on 14 December 1993.

Pursuant to the Board’s request, the Federal Bureau of Investigation  (FBI),
Clarksburg, WV, provided a copy of  an  Investigation  Report  which  is  at
Exhibit C.

________________________________________________________________

AIR FORCE EVALUATION:

None.  The applicant has not shown the  characterization  of  his  discharge
was contrary to AFR 39-10 (extract copy attached as Exhibit E), nor  has  he
shown that the nature of the discharge was unduly harsh or  disproportionate
to the offense  committed.   At  the  time  of  his  discharge,  AFR  39-10,
paragraph 1-18b, stated that characterization  of  service  as  general  was
warranted  if  an  airman’s  service  had  been  honest  and  faithful,  but
significant negative aspects of the airman’s conduct or performance of  duty
outweighed positive aspects of the airman’s  military  record.   AFR  39-10,
paragraph 5-49c, further stated that because drug abuse  is  not  compatible
with Air Force standards, it is  essential  that  careful  consideration  be
given before keeping NCOs who are verified drug abusers in  the  Air  Force.
Normally, retention is not appropriate.

The applicant has not alleged any impropriety in the  manner  in  which  the
discharge was conducted, and  the  record  indicates  he  was  afforded  all
rights to which he was entitled.  Thus, by choosing to offer  a  conditional
waiver of his rights associated  with  an  administrative  discharge  board,
contingent  on  his  receiving  no  less  than  a  general  discharge  under
honorable conditions,  it  appears  he  was  aware  of  the  possibility  of
receiving a general discharge.   However,  notwithstanding  the  absence  of
error or injustice, the Board has the prerogative to  grant  relief  on  the
basis of clemency if so inclined.

On 17 April 2007, the SAF/MRB  Legal  Advisor  provided  a  generic  opinion
concerning service characterization which is contained at Exhibit D.

________________________________________________________________

APPLICANT'S REVIEW OF AIR FORCE EVALUATION:

A complete copy of the 17 April 2007 SAF/MRB Legal  Advisory  was  forwarded
to the applicant on 9 May 2007, for  review  and  comment  within  30  days.
Additionally, applicant was given a chance  on  25  April  2007  to  provide
information within 30 days pertaining to his activities  since  leaving  the
service.

A copy of the FBI, Clarksburg, WV, Report of Investigation was forwarded  to
the applicant on 25 April 2007 for review and comment within 30 days.

Applicant responded on 19 May  2007,  and  provided  copies  of  a  personal
statement, dated 19 May 2007, and numerous character/ reference letters  and
job  performance  ratings.   Although  he  indicated  he  was  attaching   a
transcript, it was not contained in the response furnished.

Since leaving the military, he states he  worked  for  several  years  as  a
cable splicer in the telecommunications industry.   In  1992,  he  moved  to
Miami to assist in the reconstruction of  the  city  and  surrounding  areas
following Hurricane Andrew.  He stayed there for five years and was a  plant
manager for a commercial  fishing  company  when  he  moved  back  to  North
Florida in the late 90’s.  He returned to  the  telecommunications  industry
and, in 2001, was hired as a customer zone technician with Verizon.   He  is
now at a stage in his life where the security of our nation  is  once  again
at the top of his priority list, and he has applied and been accepted for  a
job as a Federal Agent with the Department of Homeland Security.

Applicant’s complete response, with attachments, 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 not timely filed; however, it is in the interest  of
justice to excuse the failure to timely file.

3.  Insufficient relevant evidence has been presented to  demonstrate  the
existence of error or  injustice.   We  took  notice  of  the  applicant's
complete submission in judging the merits of the case; however, we find no
impropriety in the characterization of applicant's discharge.  It  appears
that responsible officials applied appropriate standards in effecting  the
separation,  and  we  do  not  find  persuasive  evidence  that  pertinent
regulations were violated or that  applicant  was  not  afforded  all  the
rights to which entitled at the time of discharge.  By choosing to offer a
conditional  waiver  of  his  rights  associated  with  an  administrative
discharge board, contingent on  his  receiving  no  less  than  a  general
discharge under honorable conditions, it  appears  he  was  aware  of  the
possibility of receiving a general  discharge.   We  conclude,  therefore,
that the discharge proceedings were proper  and  characterization  of  the
discharge was appropriate to the existing circumstances, and the applicant
has not been the victim of an error or injustice.  .

4.  We also find insufficient evidence to warrant  a  recommendation  that
the discharge be upgraded on the basis of clemency.   We  have  considered
applicant's overall quality of service, the events which precipitated  the
discharge, and available evidence related to post-service  activities  and
accomplishments.  Applicant was a non-commissioned officer at the time  of
his involvement with illegal drugs and drug use by  NCOs  is  unacceptable
conduct.  Additionally, it was not the only time that he was involved with
illegal drugs as evidenced by his receiving  non-judicial  punishment  for
his use of illegal drugs three and one  half  years  before  his  eventual
discharge.  Based on the evidence  of  record,  we  cannot  conclude  that
clemency is warranted.

________________________________________________________________

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.

________________________________________________________________

The following members of the Board considered  Docket  Number  BC-2007-00706
in Executive Session on 20 June 1977, under the provisions of AFI 36-2603:

                       Mr. Thomas S. Markiewicz, Chair
                       Mr. Wallace F. Beard, Jr., Member
                       Mr. Alan A. Blomgren, Member

The following documentary evidence was considered:

    Exhibit A.  DD Form 149, dated 26 Feb 07, w/atchs.
    Exhibit B.  Applicant's Master Personnel Records.
    Exhibit C.  Letter, US DOJ FBI, dated 13 Apr 07.
    Exhibit D.  Letter, SAF/MRB Legal Advisor, dated 17 Apr 07.
    Exhibit E.  AFR 39-10 Extracts, dated 1 Oct 84.
    Exhibit F.  Letter, Applicant, dated 19 May 07, w/atchs.




                                   THOMAS S. MARKIEWICZ
                                   Chair