ATR FORCE DISCHARGE REVIEW BOARD HEARING RECORD

 

‘NAME OF SERVICE MEMRAER (LAST, FIRST MIDDLE INITIAL)

~ PERSONAL APPEARANCE

AIC

GRADE AYSN/S84N

 

 

 

X RECORD REVIEW

 

 

NAME GF COUNSEL AND OK ORGANZA THOM

 

 

 

 

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“INDEX NUMBER“ ""

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PRIBIIS SUUMIFTED TO THE BOAR

 

AQLS7 A66.00

ORDER APPOINTING THE BOARD

 

 

APPLICATION FOR REVIEW OF DISCHARGE

 

LETTER OF NOTIFICATION

 

HEARING DATE CASE NUMBER

GRIEF OF PERSONNEL FILE

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23 Jul 02 FD-00-00040

COUNSEL'S RELEASE TO THE BOARD

 

ADDITIONAL EXHIBITS SUBMITTED! AT TIME OF
PERSONAL APPEARANCE

 

 

 

 

TAPE RECORDING OF PERSONAL ATPERANCE HEARING

 

 

 

 

REMARKS

Case heard at Washington, B.C.

submit an application to the AFRCMR.

 

Advise applicant of the decision of the Board, the right to a personal appearance with/witheut counsel, and the right to

 

 

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ERCEM:
SABR/MIBR

530 C STREIT WEST, SUITE 40
RANDOLPH AFB, TX 78140-4742

 

 

BIGNARRE OF RECORDER iit SIGNATURE OF BOARD PRESIDENT

 

SECRETARY OF 'PHE AIR FORCE PERSONNEL COUNCIL
AIR FORCE DISCILIARGE REVIEW BOARD

1333 COMMAND DR, EE WING, 3°) FLOOR

ANDREWS AFB, MD 20762-7002

 

 

AFHQ FORM 0-2077, JAN 00 (EF-V72)

Previous edition will be used.
to SE Br am er

CASE NUMBER

AIR FORCE DISCHARGE REVIEW BOARD DECISIONAL RATIONALE FD-00-00040

GENERAL. The applicant appeals for upgrade of discharge to Honorable and change of reason for
discharge

The applicant was offered a personal appearance before the Discharge Review Board (DRB) but declined to
exercise this right. ae

The attached brief contains the available pertinent data on the applicant and the factors leading to the
“discharge.

FINDINGS: Upgrade of discharge and change of reason for discharge are denied.

The board finds that neither the evidence of record nor that provided by the applicant substantiates an
inequity or impropriety, which would justify a change of discharge.

The applicant’s issuc is listed in the attached brief.

Issuc. Applicant contends discharge was inequitable because it was too harsh, The information provided
by the applicant and contained in his records was carefully reviewed by the DRB. The records indicated the
applicant received an Article 15 for misconduct. The misconduct was for drug abuse, wrongfully using
marijuana. The DRB opined that drug abuse, particularly by an NCO, 1s not compatible with Air Force
standards. The applicant claimed that he did not smoke marijuana but was present when others did. He
also stated that he should have been retested due to the controversy surrounding drug testing in the early
1980’s. Extensive scientific testing has indicated that the casual passive inhalation of marijuana will not
result in a positive urine specimen. Procedures for testing urine samples are carefully followed to ensure
their validity, If there had been a suspected chain of custody violation, the member and his chain of
command would have been notified at the time. The member did not present any evidence to the contrary
indicating that he believed that there was such a violation. The Board concluded the misconduct
outweighed the otherwise satisfactory performance of this member.

CONCLUSIONS: The Discharge Review Board concludes that the discharge was consistent with the
procedural and substantive requirements of the discharge regulation and was within the discretion of the
discharge authority and that the applicant was provided full administrative due process.

In view of the foregoing findings the board further concludes that there exists no legal or equitable basis for
upgrade and change of reason for discharge, thus the applicant's discharge should not be changed.

Attachment:
Examiner's Brief
FD-00-00040
DEPARTMENT OF THE AIR FORCE
AIR FORCE DISCHARGE REVIEW BOARD
ANDREWS AFB, MD

(Former Aic)

1. MATTER UNDER REVIEW: Appl rec'd a GEN Disch fr USAF 85/12/20 UP AFR 39-10,
para 5-49c (Misconduct —- Drug Abuse). Appeals for Hon and Change Rsn and Auth
for Disch.

2. BACKGROUND;

a. DOB: 59/05/19. Enimt Age: 19 8/12. Disch Age: 26 7/12. Edue;:; HS DIPL.
AFOT: N/A A-69, E-84, G-66, M-78. PAFSC: 73250 - Personnel Specialist.
pAS: 83/04/22.

b. Prior Sv: (1) AFRes 79/01/24 - 79/03/22 (1 months 29 days) (Inactive).

(2) Enld as AB 79/03/23 for 4 yra, Ext 83/03/21 for 23

months. SV: 5 yrs 0 mos 0 das, all AMS. AMN - 79/09/23. Alc - 80/03/23. SRA
- 81/11/01. APRs: $,9,9,9,9,9,9.
3. SERVICE UNDER REVIEW:

a. Enld as SRA €4/03/23 for 4 yrs. Svd: 1 Yrs & Mo 28 Das, all AMS,

b. Grade Status: Alc - 85/12/09 (ART 15, 85/12/09)

c. Time Lost: none.

ad. Art 15's: (1) 85/12/09, Chanute AFB, TX - You did, ofa 24 Jul 85,
wrongfully use marijuana. Rdn to Alc, and forfeiture of
$100.00 per month for two months. (No appeal) {No
mitigation}.

e. Additional: none.
{. CM: none.
g. Record of SV: 84/03/11 64/07/08 Chanute AFB 7 (CRO)
84/07/09 $85/07/08 Chanute AFB @ (Annual)
(Discharged from Chanute AFB}

h. Awards & Decs: AFAM W/1l DEV, AFGCM W/1 DEV, SAKMR, HSM, AFLSAR, AFTR,
AFOUA.

i. Stmt of Sv: TMS: (6) Yrs {10} Mos (27) Das
TAMS: (1) Yrs (8) Mos (28) Das

4. BASIS ADVANCED FOR REVIEW: Appln {DD Fm 293} dtd 99/12/70,
FbD-00-00040

(Change Discharge to Honorable and Change Ran and Auth for Disch}

Issue 1: I had requested an additional testing, qiven during the early
BO's, there was a lot of controversy and malfeasence with the chain of custody
for specimens, but 1] was refused and offered to take an Article 15 af the Ucmg

With loss of rank and pay. ~

Issue 2: I had never used this substance, but as I stated to my present
commander at the time, I had just returned: from a family leave in Mexico and
while visiting the nightclubs was exposed to many smoky substances in the air,
for which my family and I bath inhaled as secondhand smoke. My commander agreed
that this could've caused soa along (sic) rating as .003 for which I received on
the urinalysis. He indicated thal. he was bound by policy to implement
Punishment anyway and couldn't have me re-tested due to either an error or a
faulty reading, which was taken two days upen my return to duty from leave. The
Squadron test had been given the week before, but my co-worker insisted 1 should
take jit also since (sic) was absent at the time it was given and therefore I had
to take test upon her expressed dissatisfaction. The whole situation appeared
to have an injustice kind of air about it. Unfortunately, 1 lost my entry into
the Air Nat'l Guard which was to take place 4 days past my unforseen separation’

date.
ATCHS

1. Resume.

0Q0/01/31l/ia
AEPLY TO
ATTN GF:

SUBJECT.

TO:

. a a ~PoeO-OR YO
e é
=: DEPARTMENT OF THE AIR FORCE
HEADQUARTERS CHANUTE TECHNICAL TRAINING CENTER {ATC)
CHANUTE AIR FORCE BASE IL 61868-5000

JAC (Capt Qj, 3002)- 18 December 1985

Legal Review (A1C ‘Ra Fe

3345 ABG/CC

1. I have reyiewed the attached recommended separation of Alc eer.

Fraga: under AFR 39-10, para 5-49c, for misconduct: drug abuse,
and it is, in my opinion, legally sufficient to warrant and sustain the recom-
mended action.

2 Alc ae is 26 years of age. He began active duty on 23 Mar 79 with

a current term of enlistment for four years beginning 23 Mar 84. On 24 Jul 85
AlG soy submitted a urine sample in a unit sweep which tested positive

for marijuana. By Article 15 action on 9 Dec 85 for drug abuse, he was demoted
from the rank of Sergeant to Airman First Class and ordered to forfeit $100
per month for two mouths. Drug abuse, particularly by an NCO, is not compat~
ible with Air Force standards. The positive urinalysis is evidence of illegal,
wrongful, and improper use of marijuana as established by 21 U.8.c. 812.

3, Hefore his unit commander recommended Alc ae for discharge, he was
formally counseled by his first sergeant and his commander, and he was referred
to the drug abuse evaluation program.

4. His commander finds that A1C QQ has not demonstrated the potential

for successful rehabilitation, and recommende a general discharge. AlG at
has submitted « conditional waiver of his rights to an administrative discharge
board hearing contingent on his receipt of no less than a general discharge.
However, A1C QO: bac consulted counsel and has submitted a statement denying
that he has ever smoked marijuana. He maintains his innocence but admits

he was present when civilians he knew were smoking marijuana. He aske to -
remain in the U.S. Air Force, having receiyed two Air Force Achievement Awards
and a Humanitarian Service Award. arc lp further asks that if you decide
not to offer him probation and rehabilitation that he be piven an honorable
discharge based on the quality of his service. Characterization of service

an general is warranted when significant negative aspecta of the airman's
conduct or performance of duty outweigh positive aspects of his military
record. AC CAN bas received eight airman performance reports since Sep

80, of which seven were overall "9" ratings, and one (dated Jul 84) was a
rating of "7." Since the urinalysis was not commander-directed, the positive
finding may be used to characterize his diacharge. Procedures for testin

the urine sample are carefully followed to ensure their yalidity. Alc wee
wrongful use of marijuana is the significant negative aspect of his conduct
that outweighs the positive aspects of his military record and warrants his
receiving a general discharge. Furthermore, extensive scientific testing

in the past has indicated that the caeual passive inhalation of marijuana,

as claimed by AlC i. will not result in a positive urine specimen.

AIR FORCE—-A GREAT WAY OF LIFE
_ PRO~-cLeng

5. As discharge authority, you have the following options:

a. Retain A1C mgr

b. Recommend to the General Court-martial Gonvening Authority (GCM)
that Alc Sj receive an honorable discharge;

c. Accept AIC WARP conditional waiver of a board hearing and discharge
him with a general discharge;

d. Accept Alc aig conditional waiver of board hearing #md discharge
him with a general discharge, but offer him a conditional suspension of the
discharge for a period of not less than six months, nor more than 12 months; or

e. Ef discharge under other than honorable conditions is warranted,
reject the conditional waiver and tell the respondent to either submit an
unconditional waiver or request a board hearing. ,

6. RECOMMENDATION TO THE DISCHARGE AUTHORITY: Accept the conditional waiver
and discharge Alc age wien a general discharge. Further attempts to rchab-
ilitate appear inapprepriate.

1 Atch
Case File
REPLY TO
ATTN OF:

SUBJECT:

TO

. _ PP OO POO SO
@ a”

DEPARTMENT OF THE AIR FORCE
HEADQUARTERS CHANUTE TECHNICAL TRAINING CENTER (ATC)

CHANUTE AIR FORCE BASE, IL 61868

3345 ABG/CCQ 12 Dec 85

Letter of Notification ~- Board Hearing

1. I am recommending your discharge from the United States Air Force for

drug abuse according to AFR 39-10, under the provisions of paragraph 5-49c.
Copies of the documents to be forwarded to the separation authority to suppert
this recommendation are attached.

2. My reasons for this action are: You submitted a urine sample on 24 Jul 485.
It tested positive for marijuana identifying you as a drug abuser. This sanple
Was given as the result of a unit sweep. Drug abuse by any Air Force member,
and an NCO in particular, is inexcusable and will not be tolerated. Failure to
meet the minimally acceptable standards of the Air Force mandates that you be
discharged. Copies of the documents to be forwarded to the separation authority
in support of this recommendation are attached. The Commander exercising SPCM
jurisdiction or a higher authority will decide whether you will be discharged or
retained in the Air Force and, if you are discharged, how your service will be

characterized. If you are discharged, you will be ineligible for reenlistment
in the Air Force.

3. This action could result in your separation with an under other than honorable
conditions discharge. I am recommending that you receive a general discharge.
The commander exercising SPGM jurisdiction or a higher authority will make the
final decision in this matter. If you are discharged, you wili be ineligible
for reenlistment in the Air Force.
4. You have the right to:

a. Consult legal counsel.

b. Fresent your case to an administrative discharge board.

c. Be represented by legal counsel at «4 board hearing.

d. Submit statemente in your own behalf in addition to, or in lieu of, the
board hearing. ,

@. Waive the above rights. You must consult legal counsel before making a
decision to waive any of your rights.

5. You received a medical examination on 18 December 1985.

AIR FORCE—A GREAT way OF LIFE ATacha 7,
: - FDIO-O2 Ae
° a PPO OF

6, Military legal counsel Capt ae: ADC, oxt 4108 has been obtained to assist
you. An appointment has been scheduled for you to consult him on 13 Dee 85 at
0800 hrs. Instead of the appointed counsel, you may have another, if the lawyer
you request is in the active military service and is reasonably available as
determined according to AFM 111-1. Im addition to military counsel, you have the
right to employ civilian counsel. The Air Force does not pay expenses incident to
the employment of civilian counsel. Civilian counsel, if employed, must be
readily available.

7. Confer with your counsel and reply, in writing, within 7 workdays, specifying
the tights you choose to exercise. The statement must be signed in “the presence
of your coungel who also will sign it. If you waive your right to a hearing before
an administrative discharge board, you may submit written statements in your own
behalf. 1 will send the statements to the discharge authority with the case file
to be considered with this recommendation. If you fail to reapond, your failure
will constitute a waiver of the right to the board hearing.

8, Any personal information you furnish in rebuttal is covered by the Privacy Act
Statement as explained in AFR 39-10, attachment 6. A copy of AFR 39-10 is available
for your use in the Orderly Room Bldg F-4, Room 127 and must be returned to the
Orderly Room when your case is completed.

9, Execute the attached acknowledgement and return it to me immediately.

 
  

shee!

 

3 Atch

1. USAF Hosp, SGHL Ltr, Nov 85

2. AF Form 3070, 9 Dec 85

3. Airman's Receipt of Ltr of
Notification

bos cas WH Major, USAF
Commander, Hq Sq Sec, 3345 ABG