RECORD OF PROCEEDINGS
AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS

IN THE MATTER OF:	DOCKET NUMBER: BC-2013-02140
	XXXXXXX,	COUNSEL:  NONE
		HEARING DESIRED:  YES

________________________________________________________________

APPLICANT REQUESTS THAT:

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

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APPLICANT CONTENDS THAT:

His discharge resulted from him using a substance that he later 
learned to be “spice.”  At the time of the incident he was 
unaware of this fact.  

He was told by the store owner that the substance was known as 
“herbal incense” and did not include the same make-up as spice.  

He deeply regrets the choices he made and takes full 
responsibility for his actions.  

He would like to have his discharge upgraded so that he can 
become eligible for the Department of Veterans Affairs (DVA) 
Post 9/11 GI Bill benefits.

The applicant's complete submission is at Exhibit A.

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STATEMENT OF FACTS:

On 25 May 10, the applicant enlisted in the Regular Air Force 
for a period of six years.

On 14 Nov 11, the applicant was notified by his squadron 
commander that he was recommending his discharge from the Air 
Force for misconduct (specifically for drug abuse).  The reason 
for the proposed action was the applicant received an Article 
15, for disobeying a lawful general instruction by wrongfully 
using spice between on or about 4 Jul 11 and 4 Aug 11 for the 
purpose of altering his mood or function. The punishment imposed 
was a reduction in grade to airman basic, forfeiture of $733.00 
pay per month for two months, a 60-day restriction, and a 
reprimand.

The applicant acknowledged receipt of the notification of 
discharge and after consulting with legal counsel, submitted a 
statement in his own behalf.  

The base legal office found the case legally sufficient to 
support the separation, and on 23 Nov 11, the discharge 
authority directed a general (under honorable conditions) 
discharge without probation and rehabilitation.

On 2 Dec 11, the applicant was discharged by reason of 
misconduct (drug abuse).  He served on active duty for a period 
of one year, six months, and eight days.  

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AIR FORCE EVALUATION:

AFPC/DPSOR recommends denial.  DPSOR states that based on the 
documentation on file in the master personnel records, the 
discharge was consistent with the procedural and substantive 
requirements of the discharge instruction and was within the 
discretion of the discharge authority.  The applicant did not 
submit any evidence or identify any errors or injustices that 
occurred in the discharge processing.  

DPSOR states that drug abuse is a substantial departure from the 
conduct expected of an airman and warrants a general discharge 
characterization.  The applicant’s record supports a general 
discharge.  

AFI 36-3208, Administrative Separation of Airmen, Chapter 5, 
Section H (Misconduct), paragraph 5.54, states that airmen who 
abuse drugs one or more times are subject to discharge for 
misconduct.  Paragraph 5.54.1., defines drug abuse as “illegal, 
wrongful, or improper use, possession, sale, or introduction 
onto a military installation of any drug.”  A drug is any 
controlled substance as defined by Title 21, United States Code, 
Section 812, or any other substance other than alcohol ingested 
into the body to alter mood or function.

Discharge processing is mandatory for drug abuse.  Drug use is 
abuse if it is illegal, improper, or wrongful.  For controlled 
substances, discharge processing will always be mandatory 
because it will always be abuse (i.e. illegal).  If an order or 
regulation prohibits use of a substance, discharge processing is 
also mandatory (i.e. use is wrongful because it is done in 
violation of an order or regulation).  However, a substance does 
not have to be illegal or banned by order or regulation.  A 
commander can determine a member’s use of a substance was 
improper or wrongful based on the circumstances of the use.

The applicant used spice to alter his mood or function on 
several occasions.  He used spice on base, in the company of 
other airmen.  The commander was well within his discretion to 
find the use improper or wrongful and initiate discharge action.

The complete DPSOR evaluation is at Exhibit C.

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APPLICANT'S REVIEW OF AIR FORCE EVALUATION:

On 5 Jul 13, a copy of the Air Force evaluation was forwarded to 
the applicant for review and comment within 30 days (Exhibit D).  
As of this date, this office has received no response.

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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.  We took notice 
of the applicant's complete submission in judging the merits of 
the case; however, we agree with the opinion and recommendation 
of the Air Force office of primary responsibility and adopt the 
rationale expressed as the basis for our conclusion that the 
applicant has not been the victim of an error or injustice.  
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 issue involved.  
Therefore, the request for a hearing is not favorably 
considered.

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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-2013-02140 in Executive Session on 20 Feb 14, under 
the provisions of AFI 36-2603:

	, Panel Chair
	, Member
	, Member

The following documentary evidence was considered:

    Exhibit A.  DD Form 149, dated 30 Apr 13. 
    Exhibit B.  Applicant's Master Personnel Records.
    Exhibit C.  Letter, AFPC/DPSOR, dated 21 Jun 13.
    Exhibit D.  Letter, SAF/MRBR, dated 5 Jul 13.




                                   Panel Chair