RECORD OF PROCEEDINGS
AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS


IN THE MATTER OF:	DOCKET NUMBER:  BC-2013-02353

		COUNSEL:  NONE

		HEARING DESIRED:  YES 


________________________________________________________________

APPLICANT REQUESTS THAT:

1.  The Letter of Reprimand, dated 2 May 12, be removed from his 
records.

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

3.  His reentry code of "2B" (Separated with a general or under 
other than honorable conditions (UOTHC) discharge) be changed to 
allow him enter the Air Force Reserve. 

________________________________________________________________

APPLICANT CONTENDS THAT:

The basis for the LOR and subsequent discharge was a possible 
misinterpretation of the circumstances and these actions were 
unjust.  He had undergone knee surgery and was prescribed 
oxycodone for pain.  He was accused of distributing a controlled 
substance to his wife.  However, the side effects of the 
medication must have caused memory loss because he does not 
remember giving his wife his pain medication.  His wife was 
questioned by the Office of Special Investigation (OSI).  Due to 
OSI misleading his wife, she implicated the applicant in 
providing her the pain medication.  

As a result, his commander initiated non-judicial punishment 
(NJP) under Article 15 of the Uniformed Code of Military Justice 
(UCMJ).  However, as is his right, he requested the matter be 
adjudicated through a court-martial.  In response, his commander 
withdrew the Article 15 and issued him an LOR.  By requesting a 
court-martial he was entitled to certain rights of the UCMJ.  
Under the Military Rule of Evidence (MRE) a spouse would not 
have to testify against his or her spouse.  He believes his 
commander withdrew the Article 15 and proceeded with the LOR 
because the evidence was not strong enough to support he 
deliberately distributed a controlled substance and his wife 
would not testify against him.  His commander believed that he 
did not intentionally commit an malicious act, that this was an 
isolated event, but due to his previous drug conviction the 
commander could not afford to keep someone that had a pattern of 
drug abuse.

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

________________________________________________________________

STATEMENT OF FACTS:

On 22 Aug 06, the applicant commenced his enlistment in the 
Regular Air Force.

On 28 Jan 08, the applicant was tried by a general court-martial 
for two specifications under Article 112a (Wrongful use, 
possession, etc, of controlled substances).  He pled not guilty 
but was found guilty of on distributing ecstasy from 1 May 07 to 
18 Jun 07.  He was sentenced to forfeiture of all pay and 
allowances, confinement for ten months, and reduction to the 
grade of airman basic (E-1).  His appellate review was completed 
on 2 Sep 08.  The applicant applied and was selected for the 
Return to Duty Program (RTDP), which provides service members 
who were tried by court-martial, but have exceptional potential 
for future service, the opportunity to return to active duty. 

On 2 May 12, the applicant received a LOR for wrongful 
distribution of a controlled substance (oxycodone).  On 3 May 
12, the applicant provided a rebuttal response to the LOR.  
After reviewing the applicant’s rebuttal, his commander upheld 
the LOR and placed it in the applicant’s Personnel Information 
File (PIF).

On 31 May 12, the applicant’s commander notified him that he was 
recommending his discharge from the Air Force for drug abuse.  
The specific reason for the discharge action was the applicant 
provided a controlled substance (oxycodone) to another military 
member (his spouse).  

On 5 Jun 12, the applicant acknowledged receipt of the 
notification and, after consulting with legal counsel, elected 
to submit a statement in his own behalf.

On 12 Jun 12, the legal office reviewed the case and found it 
legally sufficient and recommended the applicant be furnished a 
general discharge without probation and rehabilitation.

On 28 Jun 12, the discharge authority concurred with the 
recommendation and, on 2 Jul 02, the applicant was so discharged 
and was credited with 5 years, 1 month, and 27 days of total 
active service.  The applicant had 254 days of lost time.

________________________________________________________________


AIR FORCE EVALUATION:

AFPC/DPSIM recommends denial of the applicant’s request to 
remove the LOR from his records indicating there is no evidence 
of an error or an injustice.  The applicant’s commander followed 
proper procedures in administering the LOR.  Under the 
provisions of AFI 36-2907, Unfavorable Information File (UIF) 
Program, paragraph 3.5 states that when administering 
counseling, admonition, or reprimand in writing, the letter must 
reflect what service member did or failed to do, cite the 
incidents and dates, what the expectations are for improvement 
and that further unacceptable behavior may result in more severe 
action.  The service member has three duty days to submit a 
rebuttal.  The individual who initiated written counseling, 
admonition, or reprimand has three duty days to advise the 
service member of their final decision.  The initiator may 
submit it to the service member's commander for information, 
action, or for their approval for filing an Unfavorable 
Information File (UIF) or Personal Information File (PIF). 

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

AFPC/DPSOR recommends denial of the applicant’s request to 
upgrade his discharge noting there is no evidence of an error or 
an injustice.  Based on the evidence of record, the applicant’s 
discharge, to include the separation program designator (SPD) 
code, narrative reason for separation, and characterization of 
service, was consistent with the procedural and substantive 
requirements of the discharge instruction and within the 
discretion of the discharge authority.  The applicant has not 
provided any evidence of an error occurring in the discharge 
processing.  In accordance with AFI 36-3208, Administrative 
Separation of Airman, paragraph 5.54, drug abuse is incompatible 
with military service and airmen who abuse drugs one or more 
times are subject to discharge for misconduct.  Drug abuse is 
defined as the illegal, wrongful, or improper use, possession, 
sale, transfer, or introduction onto a military installation of 
any drug.  This includes improper use of prescription 
medication.  While the applicant was afforded an opportunity to 
remain in the Air Force after his first drug offense, he 
committed a second drug related offense and, based on his 
overall performance, he was furnished a general discharge.  The 
AFI further reflects that a general discharge is appropriate 
when significant negative aspects of the airman's conduct or 
performance of duty outweigh positive aspects of the airman's 
military record.

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

________________________________________________________________




APPLICANT'S REVIEW OF AIR FORCE EVALUATION:

Had he been given an opportunity to make his case in a military 
court, he believes a different outcome would have occurred.  The 
advisory writer did not mention the Article 15 that his 
commander served him prior to withdrawing and serving him a LOR.  
While the advisory could not comment on his mental state during 
his post-operative recovery, the advisory writer did not mention 
that he was on a heavy narcotic per his doctor’s orders.  His 
civilian and military provider acknowledged the possibility of 
incapacitation due to the prescribed medication.  In order to 
wrongfully distribute a controlled substance, an individual must 
knowingly make the decision to commit the act and his did not.

He understands that procedures were followed in accordance with 
Air Force policy; however, each time he stood up for himself, he 
was punished.  The LOR he received was not the appropriate 
action; he should have received an Article 15.

The applicant’s complete response 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 timely filed.

3.  Insufficient relevant evidence has been presented to 
demonstrate the existence of error or injustice regarding the 
applicant’s request to upgrade his discharge and change his 
associated reentry (RE) code.  We took notice of the applicant's 
complete submission, to include his rebuttal response, in 
judging the merits of the case; however, we agree with the 
opinion and recommendation of AFPC/DPSOR and adopt their 
rationale as the primary basis for our conclusion the applicant 
has failed to sustain his burden that his general discharge and 
associated RE code constitute an error or injustice.  Based on 
the available evidence of record, it appears the applicant’s 
general (under honorable conditions) discharge for misconduct 
was consistent with the substantive requirements of the 
discharge instruction and within the discharge authority’s 
discretion.  He has provided no evidence which would lead us to 
believe his discharge was improper or contrary to the provisions 
of the governing directive, or the RE code issued in conjunction 
with it was erroneous or inappropriately assigned.  As for the 
applicant’ request for the removal of his letter of reprimand, 
we are not convinced that corrective action is warranted.  The 
applicant alleges his commander abused his authority in 
withdrawing the Article 15 and pursuing an LOR, when the 
applicant was willing to face a Court Martial to confront the 
alleged offense.  However, the applicant has provided no 
evidence which would lead us to believe the commander’s decision 
to withdraw the Article 15 and furnish the applicant with a LOR 
was contrary to the provisions of the governing regulation, 
unduly harsh, disproportionate to the offenses committed, or an 
abuse of the commander’s discretionary authority.  The 
responsibility to decide the type and scope of punishment rests 
with the commander and, in our view, his decision to withdraw 
the Article 15 in favor of an LOR does not represent an abuse of 
his discretionary authority.  Furthermore, absent a strong 
showing of abuse of that authority, we are not inclined to 
substitute our judgment for that of the commander who, in our 
view, was much closer to events in question and had an 
opportunity to weigh all the available evidence in deciding the 
most appropriate punishment.  Therefore, in the absence of 
evidence which shows that the applicant’s substantial rights 
were violated, he was coerced to waive any of his rights, or the 
commander who imposed the administrative punishment abused his 
discretionary authority, we conclude that no basis exists to 
recommend favorable action on the applicant’s request.

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(s) 
involved.  Therefore, the request for a hearing is not favorably 
considered.

________________________________________________________________

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-2013-02353 in Executive Session on 18 Mar 14 and 
22 Apr 14, under the provisions of AFI 36-2603:

	, Panel Chair
	, Member
	, Member






The following documentary evidence pertaining to AFBCMR Docket 
Number BC-2013-02353 was considered:

	Exhibit A.  DD Form 149, dated 7 May 13, w/atchs.
	Exhibit B.  Applicant's Master Personnel Records
	Exhibit C.  Letter, AFPC/DPSIM, dated 9 Dec 13.
	Exhibit D.  Letter, AFPC/DPSOR, dated 10 Jan 14.
	Exhibit E.  Letter, SAF/MRBR, dated 10 Feb 14.
	Exhibit F.  Letter, Applicant, dated 9 Mar 14.




                                   
                                   Panel Chair