RECORD OF PROCEEDINGS
AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS

IN THE MATTER OF:	DOCKET NUMBER:  BC-2012-03981
		COUNSEL:  NONE
		HEARING DESIRED: YES

	 

________________________________________________________________
_

APPLICANT REQUESTS THAT:

1. The nonjudicial punishment imposed under Article 15 of the 
Uniform Military Code of Justice (UMCJ), on 27 Mar 12 be removed 
from his record.

2. His Unfavorable Information File (UIF), AF Form 3070C (Record 
of NonJudicial Punishment Proceedings) be removed.

3. His suspended security clearance be reinstated.

4. The referral Officer Performance Report (OPR), closing 20 Aug 
12, be removed.

5. His promotion propriety action be removed and he be promoted 
to major – promotion was reinstated on 1 Sep 13.

6. His disqualification from flying status and loss flight pay 
be reinstated.

________________________________________________________________
_

APPLICANT CONTENDS THAT:

In an 11-page brief, the applicant makes the following 
contentions:

1. In December 2011, he was seen by the military flight 
physician due to having lower back pain.  The doctor prescribed 
physical therapy, ibuprofen, and a muscle relaxer (Robaxin).  
Later that same day, he was selected for a random urinalysis.  

2. On 9 Jan 12, his squadron commander informed him that the 
urinalysis test was positive, but did not tell him for what 
substance.  On that same day, he was directed to take another 
urinalysis, which came back negative.  He assumed the positive 
result was for the muscle relaxer.  He gave a statement to the 
Air Force Office of Special Investigation (AFOSI) with an 
account of what happened in December and provided his medical 
records to their office from his visit to the base clinic.  
Several days later, he was informed that sample contained 
Oxycodone/Oxymorphone, which he has never knowingly taken or 
been prescribed.

3. On 6 Feb 12, his commander filed court-martial charges 
against him based on the first urinalysis.  An Article 32 
hearing was conducted to review the results of the urinalysis.  
His Area Defense Counsel (ADC) chose not to question the witness 
stating that it was a tactical move to avoid tipping her hand 
regarding their defense strategy prior to the court-martial.  
The Investigating Officer (IO) suggested the case could be 
adequately addressed with NJP and administrative action.

4. On 19 Mar 12, the 18 AF/CC offered him an Article 15 for 
failing a urinalysis test.  Subsequently, the Board of Inquiry 
(BOI) found that he did not knowingly ingest the illegal 
substance.  The BOI panel consisted of three commanders who 
heard evidence and witness testimony.  He requested that his 
UCMJ punishment be set-aside; however, the 18 AF/CC disregarded 
the findings of the BOI and polygraph results that were found to 
be in his favor, and did not set-aside the punishment.  He 
discussed the decision to accept the NJP in detail with his ADC.  
This was possibly the most difficult decision he has ever had to 
make.  He faced fighting for his exoneration versus being a 
federally convicted felon.  This decision would affect his 
livelihood and the future of his family for decades.  According 
to the governing instructions, it states that the role of the 
BOI is to make a fair and impartial recommendation about whether 
to retain or discharge an officer from military service.  It 
also states, “if a majority doesn’t conclude that a 
preponderance of credible evidence supports an allegation, the 
board decides the finding in the respondent’s favor.”

5. His case is highly unusual in that two independent Air Force 
processes reached different conclusions about his innocence 
concerning a positive urinalysis for Oxycodone/Oxymorphone.  
There is a significant conflict in the relationship between Air 
Force legal and the administrative processes.  It is irrational 
and unjust that his chain of command elected to ignore the BOI 
finding which exonerates him.  

6. He did not knowingly use Oxycodone or Oxymorphone and the BOI 
agreed with his assertion when they found the following:  The 
Respondent DID NOT wrongfully misused Oxycodone, a Schedule II 
controlled substance.  It is astonishing that this finding can 
simply be cast aside by the government.

7. He understands that nonjudical punishment and administrative 
separation are two distinct processes; however, it is illogical 
and unjust for him to be punished under Article 15 when an Air 
Force-initiated BOI found that he did not commit the offense.  

8. The BCMR processed a similar case, BC-1994-02889, detailing 
an instance where an Administrative Discharge Board (ADB) 
finding disputed a summary NJP.  While the AFPC/JA and 
AFLOA/JAJM both recommended denial of relief, the Board was 
“persuaded that the contested Article 15 was inconsistent with 
the findings of the ADB.  The ADB concluded” once the commander 
reviewed the serology report and the results of the ADB, we do 
not understand why he refused to set aside the Article 15.  In 
our opinion, the benefit of the doubt should have been resolved 
in the applicant’s favor”.  His case is similar in that he 
introduced two pieces of new evidence, a favorable polygraph 
result and the BOI finding that supports his request to set-
aside his NJP.  The commander immediately dismissed both items, 
upholding his punishment based on only the naked urinalyses.

9. If the Air Force never intended to honor a favorable BOI 
finding, when it goes against the summary ruling of a general 
officer, then the regulation should be rewritten to ensure it 
adequately covers this scenario.  Furthermore, until this 
loophole is corrected, other airmen could potentially be found 
unjustly to commit an alleged offense and be scrutinized with 
the same level of blind policy enforcement that he has 
experienced.  

10. His Area Defense Counsel (ADC) did not have a lot of 
experience in handling officer drug cases, which negatively 
impacted the outcome of his case.  He relied heavily on his ADC 
to represent him; however, by her own admission she had no 
experience in cases similar to his and did not consult with an 
experienced ADC until very late in the process.  His only option 
was to accept NJP vice a court-martial due to financial 
constraints.

11. As a result of the unmerited reprimand, he has been 
administratively removed from flying status; security clearance 
suspended; fined a month’s pay; received a referral performance 
report, and has promotion propriety action pending.  

12. He provided a sworn statement while under oath to the BOI 
panel members; who were required to apply a higher standard of 
proof than a Numbered Air Force (NAF) commander.  His case is an 
example of neither party reaping the intended benefits of due 
process and commander’s discretion.  

13. He asked permission to allow a chain of custody expert and 
toxicologist to travel to San Antonio so that the people 
involved could be interviewed regarding his testing sample; 
however, the government denied his request, citing the social 
security number and bar code would be enough to substantiate the 
validity of the test.  The sign in sheet and chromatograph were 
sent to an Army toxicologist who stated she could find no flaw, 
but without travelling to the location and conducting a full 
discovery, she could not comment on the test’s full validity.

14. He knew he was innocent, but his counsel continued to 
emphasize that going before a jury would be a true wild card, 
and although he had a strong Good Military Character (GMC) 
defense versus a single naked urinalysis, anything could happen 
in a deliberation room.  Based on that advice, he chose not to 
gamble with his family’s future by going to court.

In support of his request, the applicant provides a copy his 
referral OPR package, a copy of DD Form 458, Charge Sheet, a 
copy of his Positive Checklist and Urinalysis Results, email 
communications, a copy of his Statement of Understanding 
Regarding Recoupment of Education Assistance, Special Pay, or 
Bonuses, a copy of his Personal Data Sheet, a copy of the 
Investigating Officer’s Report and Appointment memorandum, 
w/atchs, a copy of his AF Form 3070C, a copy of his response to 
the NJP, a copy of his AF IMT 1168, Statement of 
Suspect/Witness/Complainant, a copy of Volume 1, Volume 2, and 
Volume 3, w/atchs, of the Record of Proceedings of Board of 
Inquiry.

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

________________________________________________________________
_

STATEMENT OF FACTS:

The applicant is currently serving in the Regular Air Force in 
the grade of major.  

The applicant was selected for promotion to the grade of major 
by the Calendar Year 2011D Major Central Selection Board that 
convened on 5 Dec 11.

The 18 AF/CC imposed NJP on the applicant for wrongfully using 
Oxycodone.  The punishment consisted of a forfeiture of 
$2,768.00 pay per month for two months and a reprimand. The 
applicant appealed the decision; however, the AMC/CV denied his 
appeal.  

On 19 Jun 12, by a majority vote, the BOI found the applicant 
did not wrongfully use Oxycodone, a Schedule II controlled 
substance.

The remaining relevant facts pertaining to this application are 
contained in the letters prepared by the appropriate offices of 
the Air Force, which is at Exhibit C, D, F, H, I, J and K.

________________________________________________________________
_

AIR FORCE EVALUATION:

1. AFLOA/JAJM recommends denial of removing the applicant’s NJP 
from his records.  In this respect, initially he was preferred 
to a general court-martial under Article 32, UCMJ; however, the 
investigator recommended disposition by operation of a NJP 
proceeding.  

2. After the NJP action was completed, a BOI convened requiring 
the applicant to show why he should be retained in the Air 
Force.  The BOI reviewed all evidence and found he did not 
wrongfully use Oxycodone, and recommended he be retained.  
Further, based on the BOI and a self-obtained polygraph 
examination, the applicant requested the NJP be set-aside; 
however, his request was denied.  

3. The applicant argues that there is an unfair inconsistency in 
the result of his NJP action when compared to the result of the 
BOI.  He notes that he received an Article 15 for wrongful use 
of Oxycodone, but the BOI subsequently found that he had not 
used Oxycodone and for this reason his Article 15 should be set-
aside.  

4. The 18 AF/CC reviewed all available evidence and elected to 
serve an Article 15 on the applicant for one specification of 
wrongfully using Oxycodone.  The applicant accepted the Article 
15, as opposed to demanding a trial by court-martial, as the 
appropriate forum for resolving the criminal allegations against 
him.  The commander had the best opportunity to evaluate the 
evidence in this case and exercised the discretion that the 
applicant granted him when he accepted the Article 15.  Further, 
the legal review showed the commander did not act arbitrarily or 
capriciously when he made his decision.

5. As a matter of process when an administrative discharge 
action is initiated a BOI is convened.  Once the BOI completes 
their findings, it determines whether the respondent should be 
retained on active duty and makes a recommendation on the case.  
Findings that make the respondent subject to removal from active 
duty or discharge do not prevent the board from recommending 
retention.  In this case, the BOI recommended the applicant be 
retained.

6. Upon the conclusion of the administrative discharge 
proceeding, the applicant requested that the commander set-aside 
the earlier NJP.  Despite the findings and the recommendations 
by the BOI, the commander was not persuaded by the applicant’s 
arguments and denied his request.  The action by the commander 
was well within his purview and command prerogative.  While a 
commander may recommend an administrative discharge after an 
Article 15 or court-martial action, the two are separate and 
unique systems used to dispose of allegations of misconduct.  
The administrative and punitive realms are completely 
independent of one another.  The applicant’s Article 15 was 
independent of his BOI.  Additionally, the administrative 
discharge board did not have the authority to nullify an earlier 
Article 15 action, reviewed and deemed legally sufficient.  

7. The applicant asserts that his commander should have given 
more weight to his polygraph examination when determining 
whether to set-aside his Article 15.  However, pursuant to the 
Military Rules of Evidence 707, “the results of a polygraph 
examination, the opinion of a polygraph examiner, or any 
reference to an offer to take, failure to take, or taking of a 
polygraph examination, shall not be admitted as evidence.”  
Therefore, the polygraph examination could not have been 
introduced or considered should his case have proceeded to a 
court-martial.  While this rule does not necessarily apply to 
Article 15 proceedings, pursuant to the governing instructions, 
“while no specific standard of proof applies to NJP proceedings, 
including appeals, commanders should recognize that a member is 
entitled to demand trial by court-martial, in which case proof 
beyond a reasonable doubt of each element of every offense by 
legal and competent evidence is prerequisite to conviction.”  
Consequently, it is reasonable for the commander to choose not 
to consider the polygraph examination in light of the fact that 
it would not be admissible in a court-martial.  

8. The applicant does not make a compelling argument that the 
Board should overturn the commander’s original decision on the 
basis of injustice.  He would have us believe that the decision 
of the discharge board, made in his favor, is the one that 
should be dispositive when, in fact, it is equally possible that 
the decision of the commander in the NJP action was the correct 
assessment of his case.  

The complete JAJM evaluation is at Exhibit C.

USAF/A3O-A1F recommends denial.  After a thorough review of the 
applicant’s request, they cannot recommend any additional 
action.  The applicant’s permanently disqualification from 
aviation service was published in accordance with the governing 
instructions. 

The A3O-A1F evaluation is at Exhibit D.

________________________________________________________________
_

APPLICANT'S REVIEW OF AIR FORCE EVALUATION:

The applicant submits the requested copy of AF IMT Form 1137, 
Unfavorable Information File Summary, and AF Form 3070C, which 
he submits, along with a copy of his OPR w/atchs.  

With reference to the BOI, when he originally submitted his BCMR 
request, he only had audio CDs of the board proceedings.  Now he 
provides three complete volumes of the proceedings.

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

________________________________________________________________
_

ADDITIONAL AIR FORCE EVALUATION:

AFPC/DPSIM recommends denying removal of his Article 15 and UIF.  
The applicant provided significant evidence regarding the NJP 
being unjust; however, none of the information points to 
violating the processing procedures.  

The complete DPSIM evaluation is at Exhibit F.

________________________________________________________________
_

APPLICANT'S REVIEW OF ADDITIONAL AIR FORCE EVALUATION:

1. He provides a full report from the polygraph expert who 
administered the test on 10 Jun 12.  It may appear that the 
polygraph only contained two questions, both regarding the 
specific drug charge; however, this is not the case.  All 
questions and electronic results are provided.  

2. He received paperwork from the Air Force Central Adjudication 
Facility (AFCAF) regarding his security clearance.  AFCAF is 
recommending a permanent revocation of his security clearance 
based on the single positive urinalysis and subsequent Article 
15. 

3. He cites a paragraph in the AFCAF revocation notification 
memorandum that states, “In addition, your commander offered you 
the opportunity to request an exculpatory polygraph at no charge 
from the Air Force Office of Special Investigations (AFOSI), but 
instead you chose to hire a polygrapher who asked you two very 
specific questions regarding your allegations.”  This statement 
is almost a total falsehood and is indicative of the 
administrative assassination that has been executed since the 
BOI found him to have not wrongfully used the drug in question.  
The only true part of this statement is that he did have a 
polygraph administered off base, but only at the vehement advice 
of his guest counsel who assisted with tactical decision making 
just two weeks before the convening of the BOI.  He was never 
offered a polygraph by the government.

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

________________________________________________________________
_

ADDITIONAL AIR FORCE EVALUATION:

AFCAF/PSA recommends that any actions concerning an error in the 
applicant’s record not be addressed until all aspects of the 
adjudication process have become final.

The complete PSA evaluation is at Exhibit H.

AFPC/DPSID recommends denial of the applicant’s request to 
remove the contested report.  In this respect, they note the 
following:	

	a. In accordance with the governing instructions which 
state, “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 Article 15, Letters of Reprimand, Admonishment, or 
Counseling, or placement on the Control Roster have been taken.”  
In this case, the applicant’s rating chain chose to document the 
incident on the contested report which caused the report, among 
other reasons, to be referred.

	b. The BOI is for retention determination purposes only and 
has no authority to invalidate or reverse an Article 15 action 
that has already been reviewed and deemed legally sufficient.

	c. The applicant provides absolutely no evidence within his 
case to question the legal sufficiency of the Article 15, and 
its subsequent reporting by the rating chain on the contested 
referral OPR.  Therefore, they believe the comments referencing 
the applicant’s behavior and the punishment received on the 
contested referral OPR to be fair, accurate, and IAW the 
governing instructions.  Furthermore, based on the confirmed 
legal sufficiency of the Article 15 as rendered, and no evidence 
that the Article 15 punishment was ever set-aside, they find 
that its mention in his contested report was appropriate, and as 
such there is no basis to which could support removal of the 
contested report.  

The complete DPSID evaluation is at Exhibit I.

AFPC/JA defers to the Board to make a determination.  This case 
obviously presents a unique fact pattern:  

	a. The 18 AF/CC and the AMC/CV each independently reviewed 
the evidence and determined that the applicant wrongfully used 
Oxycodone.  On the other hand, a three-member BOI (and the 
Secretary of the Air Force (SECAF)) also reviewed the evidence, 
but came to a contrary determination, finding the applicant had 
not wrongfully used the drug.  Admittedly, the results of the 
NJP proceedings and the BOI are inconsistent.  An argument can 
be made to remove from the applicant’s record the Article 15 and 
all actions that flowed there from.  The sole basis for all the 
actions is the applicant’s alleged wrongful use of a controlled 
substance.  There is no other derogatory information in his 
file.  In fact, aside from this allegation, he has an exemplary 
service record.  Two separate and independent reviews of the 
evidence in this case were conducted.  Each came to a different 
conclusion on the question of whether the applicant wrongfully 
used Oxycodone.  While each action can stand alone and support 
the respective actions, one might argue that the fact-finding 
process is not as fully developed in the NJP forum as in a BOI.  
In the former, the commander largely relied on documentary 
evidence relating to the allegation and documents presented by 
the applicant.  At the BOI, the members had the opportunity to 
hear the testimony of witnesses, subject to cross-examination, 
and were able to make a determination as to the credibility of 
those witnesses.  Both the government and the defense had a full 
opportunity at the board to present their cases and make 
arguments in support of their position.  Furthermore, the 
standard of proof required to find a member guilty in a 
nonjudicial punishment proceeding is much less defined than that 
standard required at a BOI.

	b. Notwithstanding this dichotomy, they cannot say that the 
commander abused his discretion in refusing to set-aside the 
Article 15.  Likewise, they cannot say that the other adverse 
actions that flowed from the determination were improper.  

The complete AFPC/JA evaluation is at Exhibit J.

AFPC/DPSOO provides an advisory for information only that 
addresses the promotion propriety action.  The applicant met and 
was selected for promotion to the grade of major.  However, on 
16 Jul 12, the 92 ARW/CC recommended the applicant’s name be 
removed from the promotion list because he wrongfully used 
Oxycodone.  On 10 Oct 12, the SECAF disapproved and terminated 
the removal action.  The applicant was promoted on 1 Sep 13 to 
the grade of major.

The complete DPSOO evaluation is at Exhibit L.

________________________________________________________________
_

APPLICANT'S REVIEW OF ADDITIONAL AIR FORCE EVALUATION:

1. He requests a reevaluation from AFLOA/JAJM in light of the 
opinion provided by AFPC/JA.  It is clear that after reading the 
AFPC/JA response, they had all other advisories while drafting 
the opinion.  It is odd that while defending the validity of 
both administrative and punitive options for the commander, JAJM 
simply discounts the result of the BOI as an aberration.  

2. He requests an initial evaluation of his case by USAF/JAA.  
It is apparent that the JAA is frequently consulted on cases 
similar to this one.  

3. He requests an extension once he receives the revised opinion 
from JAJM and initial opinion from JAA.

4. On AF Form 4363, Record of Promotion Propriety Action, it is 
evident that the first dissenter of removing his name from the 
promotion list is a Senior Executive in JAA.  Block 9 states, 
“The Judge Advocate General Legal Review; Record is legally 
sufficient.  Comments ARE attached.  Note 8, located at the 
bottom of the form states, “Records that are legally sufficient 
should normally be reviewed without comment.”  He has not seen 
the comments that were attached.  He was informed that those 
comments are for “eyes only”.

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

________________________________________________________________
_

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 
reviewing the evidence of record and that provided by the 
applicant, we believe his urinalyis test was positive for 
Oxycodone/Oxymorphone and there is no evidence that has been 
provided to establish an error in the processing of that 
urinalysis.  Further, the Board believes the Board of Inquiry 
(BOI) focused on the retention issue rather than the the Air 
Force’s policy regarding the illegal use of drugs.  As such, the 
nonjudicial action offered by the applicant’s commander, which 
he chose to accept, rather than request a trial by court-
martial, should not be superseded by the results of the BOI.  
While we note the applicant requests further legal review, we 
believe his case has been sufficiently evaluated by the proper 
Air Force offices.  Consequently, we agree with the opinions and 
recommendations of the Air Force offices of primary 
responsibility and adopt their rationale as the basis for our 
conclusion that the applicant has not been the victim of an 
error or injustice.  With regard to the applicant’s request to 
have his security clearance reinstated, as noted by AFCAF/PSA, 
this issue is not yet complete and should not be addressed until 
all aspects of the adjudication process is complete.  We agree 
with this recommendation.  However, if after the AFCAF/PSA 
administrative process is complete and the applicant still 
believes he has suffered either an error or injustice, he may 
apply to the Board requesting reconsideration of his appeal. 
Therefore, in the absence of evidence to the contrary, we find 
no 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 issues involved.  
Therefore, the request for a hearing is not favorably 
considered.

________________________________________________________________
_

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 AFBCMR Docket 
Number BC-2012-03981 in Executive Session on 14 Nov and 2 Dec 
13, under the provisions of AFI 36-2603:

	, Panel Chair
	, Member
	, Member

The following documentary evidence was considered:

    Exhibit A.  DD Form 149, dated 29 Aug 12, w/atchs.
    Exhibit C.  Letter, AFLOA/JAJM, dated 16 Oct 12.
    Exhibit D.  Letter, USAF/A30-A1F, dated 17 Oct 12.
    Exhibit E.  Letter, Applicant, dated 17 Oct 12, w/atchs.
    Exhibit F.  Letter, AFPC/DPSIM, dated 18 Dec 12.
    Exhibit G.  Letter, Applicant, dated 15 Jan 13, w/atchs.
    Exhibit H.  Letter, AFCAF/PSA, dated 20 Feb 13.
    Exhibit I.  Letter, AFPC/DPSID, dated 5 Apr 13.
    Exhibit J.  Letter, AFPC/JA, dated 26 Apr 13.
    Exhibit K.  Letter, AFPC/DPSOO, dated 2 May 13.
    Exhibit L.  Letter, SAF/MRBR, dated 8 May 13.
    Exhibit M.  Letter, Applicant, dated 17 May 13, w/atchs.




                                   
                                   Panel Chair