RECORD OF PROCEEDINGS
         AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS
IN THE MATTER OF:	DOCKET NUMBERS:	BC-2013-01719 
COUNSEL: NONE
	HEARING DESIRED: Not Indicated



APPLICANT REQUESTS THAT:
His Article 15 nonjudicial punishment received in November 2012 
be set-aside.



APPLICANT CONTENDS THAT:
He was served an Article 15 on 20 November 2012, for a positive 
urinalysis result for a narcotic prescription. Based on evidence 
from his physician and reviewing physician, the medication he was 
prescribed was valid at the time of the alleged infraction. He 
and his legal counsel followed the correct actions for each level 
of appeal; however, his commander refused to act upon the 
evidence presented.

In support of his appeal, the applicant provides copies of 
electronic communications and memorandums from his medical 
providers.

The applicant’s 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 technical sergeant (E-6).

On 9 November 2012, the applicant was offered nonjudicial 
punishment under Article 15, Uniform Code of Military Justice 
(UCMJ). He was charged with one specification of wrongful use of 
Oxycodone, a Schedule II controlled substance, in violation of 
Article 112a, UCMJ. The applicant was afforded the opportunity 
to consult defense counsel, accepted the Article 15, and waived 
his right to demand trial by court-martial. He elected to 
present written matters; however, did not elect to make a 
personal appearance before his commander. On 20 November 2012, 
the commander decided the applicant had committed the charged 
offense and imposed punishment consisting of a reduction to the 
grade of staff sergeant, forfeiture of $1,506.00 pay per month 
for two months (suspended for six months), 30 days extra duty, 
and a reprimand.




The applicant appealed the commander’s decision stating he 
believed he had accidentally taken Percocet, an older medication 
that he had been legally prescribed. The applicant’s defense 
attorney also submitted a written response where the defense 
attorney argued the applicant had innocently ingested the 
Percocet as it looks like other medication the applicant was 
currently taking and it must have been mixed in a travel 
container the applicant used during that timeframe. Based on 
what the applicant provided, the applicant’s commander granted 
the appeal in part and suspended the reduction in grade to staff 
sergeant for six months. The appellate commander denied the rest 
of the appeal on 7 December 2012. The Article 15 action was 
reviewed and found to be legally sufficient.

The remaining relevant facts, extracted from the applicant’s 
military service record, are contained in the evaluation provided 
by the Air Force office of primary responsibility at Exhibit C.



AIR FORCE EVALUATION:
AFLOA/JAJM recommends approval. JAJM states that a set-aside of 
an Article 15 is the removal of the punishment from the record 
and the restoration of the service member’s rights, privileges, 
pay, or property affected by the punishment. Setting aside an 
Article 15 action restores the member to the position held before 
imposition of the punishment, as if the action had never been 
initiated. The power to set-aside a punishment should ordinarily 
be exercised within four months of the imposition of the 
nonjudicial punishment. A set-aside of punishment should not be 
routinely granted. Rather, a set-aside is to be used strictly in 
the rare and unusual case where a genuine question about the 
service member’s guilt arises or where the best interests of the 
Air Force would be served. The applicant does allege an 
injustice in his receipt of this nonjudicial punishment. He 
provides documentation stating he had a valid prescription for 
Percocet at the time of his positive drug test thus his use of 
Percocet was lawful. In addition, the administrative discharge 
board found he did not wrongly used Oxycodone and recommended 
retention.

The applicant does make a compelling argument that the Board 
should overturn the commander’s original, nonjudicial punishment 
decision on the basis of an injustice.

The complete JAJM evaluation is at Exhibit C.




APPLICANT'S REVIEW OF AIR FORCE EVALUATION:
A copy of the Air Force evaluation was forwarded to the applicant 
on 10 May 2013, for review and comment within 30 days (Exhibit 
D). As of this date, this office has received no response.



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 injustice. After a thorough 
review of the evidence of record and the applicant’s submission, 
we believe relief is warranted. The Board notes the Air Force 
office of primary responsibility indicates the applicant has 
shown a clear injustice and recommends the Board grant the 
requested relief. We agree. The facts indicate the applicant 
had a valid prescription for Percocet at the time of his positive 
drug test, thus his use of Percocet was lawful. In addition, the 
administrative discharge board found he did not wrongfully use 
Oxycodone and recommended the applicant retention. Therefore, we 
agree with the Military Justice Division, Air Force Legal 
Operations Agency recommendation to set aside the nonjudicial 
punishment and all rights, privileges and property be restored. 
Accordingly, we recommend the record be corrected as 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 issues involved.



THE BOARD DETERMINES THAT:
The pertinent military records of the Department of the Air Force 
relating to APPLICANT be corrected to show that the nonjudicial 
punishment under the provisions of Article 15, Uniform Code of 
Military Justice, initiated on 9 November 2012, and imposed on
20 November 2012, be set-aside and expunged from his records, and 
all rights, privileges and property of which he may have been 
deprived be restored.




The following members of the Board considered AFBCMR Docket 
Number BC-2013-01719 in Executive Session on 6 February 2014, 
under the provisions of AFI 36-2603:

All members voted to correct the records, as recommended. The 
following documentary evidence for AFBCMR Docket Number BC-2013- 
01719 was considered:

Exhibit A.	DD Form 149, dated 5 Apr 13, with atchs. 
Exhibit B.	Applicant's Master Personnel Records.
Exhibit C.	Letter, AFLOA/JAJM, dated 9 May 13. 
Exhibit D.	Letter, SAF/MRBR, dated 10 May 13.