AIR FORCE DISCHARGE REVIEW BOARD DECISIONAL RATIONALE 

CASE NUMBER 

FD-2005-00124 

GENERAL:  The applicant appeals for upgrade of discharge to honorable and to change the reenlistment  code. 

The applicant  appeared  and  testified  before  the Discharge  Review  Board  (DRB),  with  counsel 
Andrews AFB via video-teleconferencing at St. Augustine, Florida, on 18 May 2005. 
The following additional exhibits were submitted at the hearing: 

at 

Exhibit #5: A Memorandum 
Exhibit #6: Letter from Capt 

dated  1 1 May 2005 

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

FINDINGS:  Upgrade of discharge and change of reenlistment  code are denied. 

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

ISSUE:  Implicit in the member's  issue is that his discharge was too harsh.  The record reflects the applicant received 
a  letter  of  reprimand,  dated  12 January  2004,  for  wrongful  use  of  marijuana,  an  act  which  he  has  denied.  The 
notification  memorandum  from the applicant's  commander reflects he was offered  to have the allegation  against  him 
evaluated  through  a  special  court-martial, with  the  attendant rules  of  evidence and  burden  of proof.  The applicant 
declined  the offer on the advice  of his defense counsel.  The record  also reflects the applicant was interviewed by an 
agent of the Office of Special  Investigation  (OSI) wherein he again  denied  any use  of illegal  drugs;  however, at  one 
point  in  the  interview  the  applicant  uttered  the  words,  "If  you  say I  did  drugs,  then  I  did  it;"  following which  the 
interview  was  terminated.  When  asked  by  the  DFU3  why  he  would  make  such  a  statement to  an  OSI  agent,  the 
applicant responded that he had been there for a long time and was fed up, or words to that effect.  However, a signed 
witness statement from a co-worker, with information obtained from a third party present at the time of the applicant's 
alleged  offense,  places  him  and  at  least  two  other  individuals  in  an  off-base  residence  wherein  the  applicant 
participated  in  the  smoking  of  a  marijuana  cigarette.  The  applicant believes  that  he  was  "maliciously  and  falsely 
accused by  [the aforementioned] co-worker of smoking marijuana,"  near Clovis, New Mexico in mid-October 2003. 
When  asked  by  the  D M  if  there  was  any  reason  the  particular  witness  would  deliberately provide  a  false  official 
statement, the  applicant replied  that they were  friends and co-workers and knew  of no reason  the  witness  would  lie. 
Interviews  from  the  two other  individuals, who allegedly  participated  in  the  offense, were  also  solicited  by  an  OSI 
agent.  Each responded  with  a request  for legal counsel after advisement of their Article  31 rights and the  interviews 
were terminated.  Additionally, in the course of investigating applicant's criminal history (National Crime Information 
Center),  it  was  discovered  the  applicant  had  previously  been  arrested  on  12 August  2001  and  charged  with  two 
misdemeanors: marijuana possession  and narcotics equipment possession.  The applicant provided plausible testimony 
that the  vehicle  in which  the  illegal  substance and equipment were  discovered did not belong to him  and he  had  no 
knowledge  of  its  presence.  No  case  disposition  was  available  for  the  charges.  The  Board  also  considered  the 
applicant's  negative drug urine screens collected on 25 September 2003 and 8 November 2003, but found these do not 
conclusively rule out a singular use of marijuana in "mid-October 2003." 

CONCLUSIONS:  With the presumption of regularity in the applicant's case, 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 
of discharge, thus the applicant's discharge should not be changed. 

Attachment: 
Examiner's Brief 

DEPARTMENT OF THE AIR FORCE 

AIR FORCE DISCHARGE REVIEW BOARD 

ANDREWS AFB, MD 

FD2005-00124A 

(Former A1C) (HGH A1C) (REHEARING) 

1.  MATTER UNDER REVIEW:  Appl  rec'd  a Gen Dish fr Cannon AFB,  NM 
on 10 Feb  04 UP AFI  36-3208, para  5.54  (Misconduct -  Drug Abuse) 
Appeals  for Honorable Discharge. 

2.  OTHER FACTS : 

a.  See attached cy of Examiner's  Brief dtd 27 Jul 04. 

b.  The AFDRB  reviewed case on 16 Feb 05  (non-appearance 
with counsel) &  concluded applicant's  discharge should not be 
changed. 

3.  BASIS ADVANCED FOR REHEARING:  Appl  (DD Frn  293) dtd 8 Mar 
05.(Change  Discharge  to Honorable) 

ISSUE:  I have not use  (sic) any illegal substance, marijuana 

and was order  (sic) to sign the LOR. 

Atch 

1.  Account  of Events Surrounding Discharge. 
2.  Congressional Correspondence. 
3.  Response  to Letter of Reprimand and Suspension of Security 
Access. 
4.  Three Character References. 
5.  DD Form 214  (Member-1). 

DEPARTMENT OF THE AIR FORCE 

AIR  FORCE DISCHARGE REVIEW BOARD 

ANDREWS AFB,  MD 

(Former A1C)  (HGH A1C) 

1.  MATTER UNDER REVIEW:  Appl rec'd a GEN Disch fr Cannon AFB, NM on 10 Feb 04 
UP AFI 36-3208, para 5.54 (Misconduct -  Drug Abuse).  Appeals for Honorable 
Discharge. 

2.  BACKGROUND: 

a. DOB: 8 Jan 82.  Enlmt Age: 20 5/12.  Disch Age: 22 1/12. Educ: HS DIPL. 

AFQT: N/A.  A-77,  E-87,  G-92,  M-92. PAFSC: 1C131 -  Air Traffice Control. 
DAS: 7 Jun 03. 

b.  Prior Sv: (1) AFRes 2 Jul 02 -  9 Dec 02 (5 months 8 days) (Inactive). 

3.  SERVICE UNDER REVIEW: 

a.  Enlisted as AB 10 Dec 02 for 6 yrs. Svd: 1 Yrs 2 Mo 1 Das, all AMS. 

b.  Grade Status:  A1C -  24 Jan 03 

c.  Time Lost:  None. 

d.  Art 15's:  None. 

, 

e.  Additional: LOR, 12 JAN 04 -  Wrongfully used marijuana. 

f .  CM:  None 

g.  Record of SV: None. 

h.  Awards &  Decs:  NDSM, AFTR, BC&COB. 

i.  Stmt of Sv:  TMS: (1) Yrs  (7) Mos  (9) Das 
TAMS: (1) Yrs  ( 2 )   Mos  (1) Das 

4.  BASIS ADVANCED FOR REVIEW:  Appln  (DD Fm 293) dtd 14 Jun 04. 

(Change Discharge to Honorable) 

Issue 1:  I was maliciously and falsely accused by a co-worker of  smoking 

marijuana near Clovis, New Mexico in mid October of 2003. 

I was advised by the JAG officer by telephone from San Antonio, TX "that since 
there was no formal changes against you there was nothing we can do.  However, 
when and if charges are brought against you we will intervene in your behalf." 
I had only two brief contacts with the JAG officer by telephone. 

I have been denied access to any all  (sic) evidence of this alleged  incident of 
marijuana use. 

ATCH 
1. Written Presentation to Discharge. 
2. Memorandum  for All Reviewing Parties. 
3. Congressional  Correspondence. 
4. Response to Letter of Reprimand. 
5. Three Character Reference. 
6. DD Form 214. 
7. Character Reference. 
8. DD Form 149. 

DEPARTMENT OF THE AIR FORCE 

HEADQUARTERS 27th FIGHTER WING (ACC) 

CANNON AIR FORCE BASE NEW MEXICO 

MEMORANDUM FOR A1 

7 OSS 

FROM:  27 OSSICC 

SUBJECT:  Notification Memorandum 

1. I am recommending your discharge from the United States Air Force for drug. abuse.  The 
authority for this action is AFPD 36-32 and AF136-3208, paragraph 5.54.  If my 
recommendation is approved, your service will be characterized as honorable or general.  I am 
recommending that your service be characterized as general. 

- 

2.  My reason for this action is: 

a.  In mid-October 2003, you wrongfully used marijuana at or near Clovis, New Mexico, as 
evidenced by a Letter of Reprimand (LOR), dated 12 Jan 04.  In your response to the LOR, you 
denied the allegation and maintained you were not being given enough information about the 
allegation to properly respond to it.  Based on your LOR response, the legal office contacted your 
defense counsel and offered to have the allegation evaluated through a special court-martial, with 
the attendant rules of evidence and burden of proof.  On 20 Jan 04, through your defense counsel, 
you declined this offer.  I am therefore proceeding based on the information from the OSI 
investigation and recommending your separation from the Air Force.  (Atch a) 

3.  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 h r  Force and, if you are 
discharged, how your service will be characterized.  Eyou are discharged, you will be ineligible 
for reenlistment in the Air Force, and any special pay, bonuses, or education assistance funds 
may be subject to recoupment. 

4.  You have the right to consult counsel.  Military legal counsel has been obtained to assist you. 
An appointment will be made for you to consult with your military legal counsel.  You may 
consult civilian counsel at your own expense. 

5.  You have the right to submit statements on your own behalf.  Any statements you want the 
separation authority to consider must reach me within 3 duty days from today unless you request 
and receive an extension for good cause shown.  I will send them to the separation authority. 

6.  Eyou fail to consult counsel or to submit statements on your own behalf, your failure will 
constitute a waiver of your right to do so. 

I 

d 

2 B  

7.  You will complete a medical examination i t  the 27th Medical Group on 
0900 

hours. 

28  JAN 04 at 

T 

8.  Any personal information you furnish in rebuttal is covered by the Privacy Act of 1974.  A 
copy of AFI 36-3208 is available for your use in your unit orderly room, or you may download a 
copy l7om http://afpubs.hq.af.mil/. 

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Commander, 27 OSS 

Attachment: 
a. Letter of Reprimand, dated 12 Jan 04, wfresponse