N A M W  n~ C F P V I ~ P  M P M R W R  11  AST  FIRST  M I ~ ~ I  

.F IN~I'IAL) 

GRADE 

AIR FORCE DISCHARGE REVlEW BOARD HEARING RECORD 

NAME OFCOUNSEI.  AND O R  ORGANIZATION 

ADDRESS AND O R  ORGANIZATION O F  COUNSEL. 

MEMBER SITTING 

INDEX NUMBER 

A66.00 

I 

I 

I 

ISSUES  A94.02 
A01.14 
A94.12 
A01.32 

I  HEARING  DATE 

I 

I 

I 

I 

I 

I 

I 

EXHISITS SUBMITTED TO THE BOARD 

I 

1 
2 
3 
4 

ORDER APPOINTING THE BOAUD 
APPLICATION FOR  REVIEW OF DISCHARGE 
LETTER OF NOTIFICATION 
BRIEF OF PERSONNEL 1:ILE 
COUNSE1,'S  REI.EASE  'f0 '11 IE BOARD 
ADDITIONAI,  EXHIBITS SUBMITTED AT T I M E  OF; 
PERSONAL APPEARANCE 
I  TAPE RECORDING OF PERSONAI,  APPEARANCE 

02 Feb 2006 
-PLICANT'S 

FD-2005-00323 

ISSUE wm BOARD'S DECXSIONAC RATIONAL A l E  DISCUSSED ON THE ATTACHED AIR FORCE DISCHARGE REVIEW B O A R a  DECISlONAL RATIONALE 

Case heard at Washington, D.C. 

Advise applicant of the decision of the Board. 

Names and votes will  be made available to the applicant at the applicant's  request. 

I  *  Change  R , s o n  and  A u t h o r i t y   t o  Misconduct 

-  . 

J*-,.L,. 

I E I C N A T I I R F   O F  R R A R n  PRFS1nh.N.I..  / 

I  ~ n .  

1  ' 
I 

SAFIMRBR 
550 C STREET WEST, SLJITE 4 0  
RANDOLPH AFB. I X  78150-4742 

I  FROM: 

I 
I 

SECRETARY OF-VHE AIR FORCE PERSONNEL COUNCIL 
AIR FORCE DISCHARGE REVIEW BOARD 
1535 COMMAND DR.  EE WING. JRD FLOOR 
A N U W W S  AFB, hID 20762-7002 

AFHQ FORM 0-2077, JAN 00 

(EF-V2) 

Previous edition will be used 

i 

I 

1 

1 

I 

AIR FORCE DISCHARGE REVIEW BOARD DECISIONAL RATIONALE 

GENERAL:  The applicant appeals for upgrade of discharge to honorable. 

CASE NUMBER 

FD-tW5-00323 

The  applicant  appeared  and  testified  before  the  Discharge  Review  Board  (DRB),  without  counsel,  at 
Andrews AFB on 02 Feb 2006. 

The following additional exhibits were submitted at the hearing: 

Exhibit 5:  Written Statement By Applicant With Contentions; 
Exhibit 6:  Letter of Congratulation-Honor  Graduate of Air Force Basic Military Training; 
Exhibit 7:  Letter of Appreciation-3  13'  Training Squadron Honor Guard Team; and 
Exhibit 8:  Ten Certificates of Training, Achievement, and Appreciation 

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

FINDINGS:  The reason for discharge is changed to misconduct and upgraded to honorable. 

ISSUE: 

Issue  1.  Applicant contends that he was wrongfully accused of ingesting "magic  mushrooms" for which he 
received a Letter of Reprimand (LOR).  The applicant asserted that he denied use in a voluntary statement to 
the  Air Force Office of Investigation (OSI), in response to his  LOR and  in  response to his administrative 
discharge.  He  said he understood the information about his use came from a confidential source which he 
had no opportunity to confront.  A summary of his AFOSI file shows that the confidential source identified 
the applicant as being present at a party where "magic  mushrooms"  were being ingested.  The confidential 
source, however,  did not  state that  the  applicant was  observed using mushrooms  or that he  overhead the 
applicant or others state that the applicant had done so.  The AFOSI summary pointed to no other evidence 
of the applicant's use.  The Board concluded, as a matter of propriety, that there was insufficient evidence to 
support the  incident alleged in the  LOR.  The remaining basis for drug  abuse discharge is the  applicant's 
admitted  inhalation  of  nitrous  oxide  from  cans  of  commercially available  whipped  cream  for  which  he 
received nonjudicial punishment.  The applicant was charged with a violation of Article 134 of the Uniform 
Code of Military Justice (UCMJ) for conduct prejudicial to good order and discipline and not Article  1124 
UCMJ, wrongful use of a controlled substance.  Use of nitrous oxide is drug abuse as defined by  AFI  36- 
3208, paragraph 5.54.1 and the administrative discharge on that basis is still legally sufficient.  However, the 
Board concluded, as a matter of equity, that under the totality of circumstances of this case it was now more 
appropriate to reflect the applicant's  discharge as "misconduct" as opposed to "drug abuse." 

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.  However, in view of 
the foregoing findings, the Board further concludes the applicant's characterization and reason for discharge 
should be changed to "honorable"  and "misconduct" under the provisions of Title 10, USC 1553. 

Attachment: 
Examiner's Brief 

DEPARTMENT OF THE AIR FORCE 

AIR  FORCE  DISCHARGE REVIEW BOARD 

ANDREWS ABB,  MD 

(Former AlC)  (HGH  SRA) 

1.  MATTER UNDER REVIEW:  Appl rec'd  a GEN Disch fr Misawa AB,  Japan on 10 Sep 03 
UP AFI 36-3208, para 5.54 (Misconduct -  Drug Abuse).  Appeals for  ono or able 
Discharge. 

2 .   BACKGROUND: 

a. DOB: 26 Sep 79. Enlmt Age: 20 2/12.  Disch Age: 23 11/12. Educ: HS DIPL. 

AFQT: N/A.  A-61,  E-74,  G - 7 2 ,   M-65. PAFSC: 1N251 -  Signals Intelligence 
Production Journeyman. DAS: 01 Oct 01. 

b.  Pxior Sv: (1) AFRes 9 Dec 99 -  25 Apr 00 (4 months 26 days) (Inactive). 

3.  SERVICE UNDER RENIEW: 

a.  Enlisted as AB  26 Apr 00 for 6 yrs. Svd: 03 Yrs 04 M o   15 Das, all AMS. 

b,  Grade Status:  A1C -  01 Jul 03  (Article 15, 01 Jul 03) 

SrA -  09 Oct 02 
A1C -  09 Jun 00 

c.  ~ i m e  Lost:  None, 

d.  Art 15,s:  (1) 1.  Jul 03, Misawa AB, Japan -  Article 134,  You, did, in 

Misawa City, Japan, between on or about1 Jun 01 to on 
or about 30 Nov 01, on divers occasions, wrongfully 
inhale nitrous oxide gas, with the intent to become 
intoxicated, which conduct under the circumstances was 
to the prejudice of good order and discipline in the 
armed forces.  Reduction to AlC, and restriction to the 
limits of Misawa AB, Japan for 60 days.  (No appeal)  (No 
mitigation) 

e.  Additional: LOR, 01 AUG 03 -  Wrongfully used psylocin. 

f .   CM:  None. 

g.  Record of SV: 26 Apr 00 -  29 Dec 01  Misawa AB  5  (Initial) 
30 Dec 01 -  29 Dec 02  Misawa AB  5  (Annual) 
30 Dec 02 -  11 Aug 03  Misawa AB  2  (HAF D ~ ~ ) R E F  

h.  Awards &  Decs:  AFTR, NDSM, AFOUA W/VALOR. 

i.  Stmt of Sv:  TMS: (03) Yrs  (09) Mos  (01) Das 
TAMS: (03) Yrs  (04) M o s   (15) Das 

4 .   BASIS ADVANCED FOR  REVIEW:  Appln  (DD Fm 293) dtd 03 Aug 05. 

(Change Discharge to Honorable) 

Issue 1:  My discharge was  unfair being it was based on one inccodent  (sic) 

that did occure (sic) and on i (sic) was accused of but never commited (sic). 

Issue 2:  I, John H. Lorah 111, am requesting an upgrade to a Honorable 

Discharge to better myself by attending college and having an gonorable (sic) 
discharge on my record when i (sic) apply for new jobs.  The upgrade will enable 
me to receive my Montgomery G.I. Bill wich  (sic) will make it possible for me to 
afford to go back to college.  I have held a full time job since my discharge 
and had no trouble since my discharge. 

ATCH 
1. Notification Memorandum. 
2. Letter of Reprimand, 1 Aug 03. 
3. Response to Article 15 Action. 
4. Response to Letter of Reprimand 
5. Article 15, 1 Jul 03. 

I 

DEPARTMENT OF THE AIR FORCE 

PACIFIC AIR FORCES 

~pga75-rn32 3 

MEMORANDUM FOR A1C 

FROM:  301 ISICC 

SUBJECT:  Notification Memorandum 

1. I am recommending your discharge fiom the United States Air Force for Drug Abuse, in 
accordance with AEPD 36-32, Military Retirements and Separations, and AFI 36-3208, 
Administrative Separation of  Airmen, paragraph 5.54.  If my recommendation is approved, your 
service will be characterized as under honorable conditions (general).  I am recommending that 
your service be characterized as under honorable conditions (general). 

2.  My reasons for this action are: 

a.  From about 1 Jun 01 to on or about 30 Nov 01, you wrongfully inhaled nitrous oxide gas, 
with the intent to become intoxicated.  For this misconduct, you received an Article 15 (Art 1 5), 
dated 1:  Jul03. 

b.  Between on or about 01 January 2002 to February 2002, you wrongfully used psylocin 

(mushrooms).  For this misconduct, you received a Letter of Reprimand (LOR), dated 11  Aug 03. 

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 Air Force and, if you are 
discharged, how yow service will be characterized.  If you are discharged, you will be ineligible 
for reenlistment in the Air Force, and any special pay, bonus, or education assistance h d s  may 
be subject to recoupment. 

4.  You have the right to consult counsel.  Military legal counsel has been obtained to assist you. 
I have made an appointment for  ou to consult Captain 
Counsel, at Building 5 14, on 
counsel at your own expense. 

200003, at  073  hours.  You may consult civilian 

the Area Defense 

5.  You have the right to submit statements in your own behalf.  Any statements you want the 
separation authority to consider must reach me within three workdays of your receipt of this 
Notification Memorandum, unless you request and receive an extension for good cause shown.  I 
will forward them to the separation authority. 

6 ,  If you fail to consult counsel or to submit statements in your own behalf within the time 
allotted, your failure shall constitute a waiver of your right to do so.