RECORD OF PROCEEDINGS 

AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS 

 

 

IN THE MATTER OF: DOCKET NUMBER: BC-2012-02116 

 

 COUNSEL: 

 

 HEARING DESIRED: YES 

 

 

________________________________________________________________ 

 

APPLICANT REQUESTS THAT: 

 

1. His non-judicial punishment (Article 15) be declared void 
and be removed from his record. 

 

2. His referral Enlisted Performance Report (EPR), rendered for 
the period 5 Apr 10 through 4 Apr 11, be declared void and 
removed from his record. 

 

3. His discharge from the Air Force be rescinded. 

 

4. In the alternative, his Narrative Reason for Separation as 
reflected on his DD Form 214, Certificate of Release or 
Discharge from Active Duty, be changed to “Secretarial 
Authority,” the characterization of his discharge be upgraded to 
Honorable, and his Reentry (RE) code be change to one that would 
allow him to reenlist. 

 

________________________________________________________________ 

 

APPLICANT CONTENDS THAT: 

 

1. He is innocent of the charges that were preferred against 
him and argues the evidence used against him to support the non-
judicial punishment was insufficient to prove his guilt beyond a 
reasonable doubt. One of the witness statements against him was 
from an individual who is a self-identified long term drug user, 
with a poor memory, and is therefore unreliable. By deductive 
reasoning, he has identified who the confidential informant must 
have been, and that individual now recants any statement he may 
have made to the Air Force Office of Special Investigation 
regarding whether he ever smoked Spice in his presence. 

 

2. The proper procedures for preparing and referring the EPR 
were not followed. The referral letter indicated the EPR was 
being referred due to the rating of Does Not Meet Standards in 
Section III, block 2 of the applicant’s EPR. However, it should 
have also described the comments in Section III, block 2 
relative to his receipt of the noted Article 15. In his 
response to the referral report the applicant pointed out again 
that the AFOSI report was inaccurate. Despite this the referral 
EPR was entered into his records. 


In support of his appeal, the applicant provides an expanded 
statement and copies of signed statements from those involved in 
his case, documentation related to his non-judicial punishment, 
the AFOSI Report of Investigation, documentation related to his 
referral EPR, numerous character statements, and documents 
related to this post-service education and volunteer work. 

 

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

 

________________________________________________________________ 

 

STATEMENT OF FACTS: 

 

The applicant initially entered the Air Force on 5 August 08. 

 

On 24 Mar 11, Air Force Office of Special Investigation (AFOSI) 
published a Report of Investigation (ROI) which disclosed the 
applicant smoked Spice with other military members on multiple 
occasions during the period Jan 10 through Oct 10. 

 

On 9 May 11, the applicant’s commander issued him non-judicial 
punishment under Article 15 of the Uniform Code of Military 
Justice (UCMJ) for being derelict in the performance of his 
duties in that he willfully failed to refrain from wrongfully 
using an intoxicating botanical incense or herbal mixture 
commonly referred to as Spice as it was his duty to do in 
violation of Article 92 of the UCMJ. For this, he was reduced 
to the grade of Airman Basic, forfeited $250.00 pay, restricted 
to base for 30 days, and received 15 days of extra duty. 

 

On 16 May 11, the applicant appealed his Article 15 to his 
commander, and on 18 May 11, after reviewing all of the written 
materials submitted by the applicant, the commander denied his 
appeal. 

 

The applicant received a referral EPR for the period 5 Apr 10 
through 4 Apr 11, which included the comment “Member received 
Article 15 punishment for using a narcotic substance “Spice” 
while off duty.” 

 

On 5 Jul 11, the applicant’s commander notified him that he was 
recommending his discharge from the Air Force for Misconduct: 
Drug Abuse. The reason for this action was that between on or 
about 1 Aug 10 and on or about 1 Dec 10, the applicant 
wrongfully used an intoxicating botanical incense or herbal 
mixture, commonly referred to as Spice, on multiple occasions, 
for which he received an Article 15. 

 

On 12 Jul 11, the applicant’s commander recommended the 
applicant be discharged for Misconduct: Drug Abuse, and on 
18 Jul 11, the case was determined to be legally sufficient. 

 


On 21 Jul 11, the discharge authority directed the applicant be 
furnished a General (Under Honorable Conditions) discharge for 
misconduct: drug abuse, without probation or rehabilitation. 

 

On 3 Aug 11, the applicant was furnished a General (Under 
Honorable Conditions) discharge certificate with a narrative 
reason for separation of “Misconduct: Drug Abuse,” and an RE 
Code of 2B (Discharged under General or other-than-honorable 
conditions). 

________________________________________________________________ 

 

AIR FORCE EVALUATION: 

 

AFLOA/JAJM recommends denial, indicating there is no evidence of 
error or injustice. The applicant contends he is innocent of 
the charges preferred and asserts that, by deductive reasoning, 
he has identified who the confidential informant must have been, 
and that individual now recants any statement he may have made 
to the Air Force Office of Special Investigation regarding 
whether the applicant every smoked Spice in his presence. The 
commander at the time of the Article 15, however, had the best 
opportunity to evaluate the evidence in the case. The applicant 
made the same argument to his commander in his defense at the 
time of the non-judicial punishment action and again to his 
commander’s superior on appeal of the action. With that 
perspective, these commanders exercised the discretion that the 
applicant granted them when he accepted nonjudicial punishment 
proceedings in lieu of his right to a trial by court martial. 
The legal review process showed that these commanders did not 
act arbitrarily or capriciously in making their decisions. The 
applicant does not make a compelling argument that the Board 
should overturn the commander’s original, non-judicial 
punishment decision on the basis of injustice. The commander’s 
ultimate decision on the Article 15 action is firmly based on 
the evidence of the case and the punishment decision was well 
within the limits of the commander’s authority and discretion. 
The applicant has not shown a clear error or injustice. 

 

A complete copy of the AFLOA/JAJM evaluation is at Exhibit C. 

 

AFPC/DPSID recommends denial of the applicant’s request to have 
his referral EPR declared void and removed from his records, 
indicating there is no evidence of an error or injustice. In 
accordance with AFI 36-2406, Officer and Enlisted Evaluation 
System, evaluators are strongly encouraged to comment in 
performance reports on misconduct that reflects a disregard of 
the law, whether civil law or the UCMJ, or when adverse actions 
such as an Article 15, Letter of Reprimand, Admonishment, or 
Counseling or placement on the Control Roster has been taken. 
AFLOA/JAJM stated the applicant does not make a compelling 
argument the Article 15 should be set aside. Therefore, the 
applicant’s rating chain appropriately chose to document this 
incident on the contested report, which caused the report to be 
referred to the applicant. Based upon the presumed sufficiency 


of the Article 15 served on the applicant, its mention on the 
contested EPR was proper and in accordance with applicable Air 
Force policies and procedures. The applicant has not 
substantiated the contested report was not rendered in good 
faith by all evaluators based on knowledge available at the 
time. 

 

A complete copy of the AFPC/DPSID evaluation is at Exhibit D. 

 

AFPC/DPSOS recommends denial of the applicant’s request to 
change his Narrative Reason for Separation and RE Code. AFI 36-
3208, Chapter 5, Section H—Misconduct, states that airmen who 
abuse drugs one or more times are subject to discharge for 
misconduct. Discharge processing is mandatory for drug abuse. 
Drug use is abuse if it is illegal, improper, or wrongful. The 
commander was well within his discretion to find the applicant’s 
use of drugs improper or wrongful and initiate discharge action. 
The discharge was consistent with the procedural and substantive 
requirements of the discharge instruction and within the 
discretion of the discharge authority. The applicant did not 
submit any evidence or identify any errors or injustices in the 
discharge processing. He provided no fact warranting a change 
in his character of service or other changes to his DD Form 214. 

 

A complete copy of the AFPC/DPSOS evaluation is at Exhibit E. 

 

AFPC/DPSOA recommends denial of the applicant’s request to 
change his RE Code to one which will allow him to reenlist. 
AFPC/DPSOS validated the applicant’s discharge processing was 
executed in accordance with the procedural and substantive 
requirements of the discharge instruction and within the 
discretion of the discharge authority. Therefore, the RE 
code 2B is required per AFI 36-2606, Reenlistments in the U.S. 
Air Force, based on his involuntary discharge with General 
(Under Honorable Conditions) character of service. The 
applicant does not provide any evidence of an error or injustice 
in reference to his RE code of 2B. 

 

A complete copy of the AFPC/DPSOA evaluation is at Exhibit F. 

 

________________________________________________________________ 

 

APPLICANT'S REVIEW OF AIR FORCE EVALUATION: 

 

While AFLOA/JAJM contends the applicant is relying on deductive 
reasoning to undermine the veracity of the evidence against him, 
this characterization is incorrect. He did not use deductive 
reasoning to determine the identity of the confidential 
informant. At the time of the Article 15, he strongly suspected 
the informant was his friend who, once he separated from the Air 
Force, confirmed his suspicions. The informant confirms the 
applicant did not use Spice with him and did not use it with the 
female airman identified in the AFOSI report. She did not 
provide a written statement saying that the applicant used 
Spice. She did provide a list of names in her oral statement. 


But she did not provide any identifying information regarding 
the applicant. This marks her statement as untruthful. She 
clearly knew who the applicant was as he was very good friends 
with the confidential informant, who was her boyfriend at the 
time. The confidential informant, who the commander relied upon 
in determining the applicant’s guilt, states the applicant did 
not use Spice. When the commander issued the Article 15, the 
informant stated the applicant did not use Spice. Although the 
legal office and the AFOSI could have revealed the identity of 
the confidential informant to the commander, they elected not to 
do so. The commander should have been provided this 
information, as he was not, his decision to punish the applicant 
is improper and unjust (Exhibit H). 

 

________________________________________________________________ 

 

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 an error or injustice. We took 
notice of the applicant’s complete submission, including his 
response to the advisory opinions rendered in this case, in 
judging the merits of the case; however, we agree with the 
opinion and recommendation of AFLOA/JAJM and adopt its rationale 
as the basis for our conclusion the applicant has not been the 
victim of an error or injustice with respect to the contested 
Article 15. We note the Article 15 was found legally sufficient 
and it appears the applicant was provided all of the rights to 
which he was entitled, including the right to refuse the 
Article 15 and demand trial by court-martial, which would have 
required a higher standard of evidence for determining whether 
or not he committed the alleged offenses. By waiving his right 
to trial by court-martial, he accepted the commander’s 
evaluation of the evidence and his judgment as to his guilt or 
innocence and appropriate level of punishment. Therefore, we 
believe the NJP action was proper and we do not find the 
commander’s actions to be arbitrary or capricious. We also note 
the applicant made similar arguments during the non-judicial 
punishment proceedings and his subsequent appeal. However, we 
find the commander exercised the discretion the applicant 
granted him when he accepted the Article 15 and found non-
judicial punishment appropriate in his case, the punishment 
decision was well within the limits of the commander’s authority 
and discretion, and the applicant exercised his right to appeal 
his commander’s decision. Moreover, an Article 15 for illegal 
drug use is more than sufficient justification for the referral 
EPR and ensuing discharge, both actions which were well within 
the commander’s authority and discretion, and were administered 
following the appropriate policy and proper procedures. 


Therefore, in the absence of evidence the commander abused his 
discretionary authority, appropriate standards were not applied, 
or the applicant was denied rights to which he was entitled to, 
we find no basis to recommend granting the relief sought in this 
application. 

 

________________________________________________________________ 

 

THE BOARD DETERMINES THAT: 

 

The applicant be notified the evidence presented did not 
demonstrate the existence of material error or injustice; the 
application was denied without a personal appearance; and 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 AFBCMR Docket 
Number BC-2012-02116 in Executive Session on 7 Feb 13, under the 
provisions of AFI 36-2603: 

 

 , Panel Chair 

 , Member 

 , Member 

 

The following documentary evidence pertaining to AFBCMR Docket 
Number BC-2012-02116 was considered: 

 

 Exhibit A. DD Form 149, dated 19 May 12, w/atchs. 

 Exhibit B. Applicant's Master Personnel Records. 

 Exhibit C. Letter, AFLOA/JAJM, dated 21 Jun 12. 

 Exhibit D. Letter, AFPC/DPSID, dated 6 Aug 12. 

 Exhibit E. Letter, AFPC/DPSOS, dated 23 Aug 12. 

 Exhibit F. Letter, AFPC/DPSOA, dated 3 Oct 12. 

 Exhibit G. Letter, SAF/MRBR, dated 29 Oct 12. 

 Exhibit H. Letter, Council, dated 27 Nov 12. 

 

 

 

 

 

 Panel Chair