NAME OF SERVICE MEMBER (LAST, FIRST MIDL)I,E INITIAL) 

GRADE 

AFSNISSAN 

AIR FORCE DISCHARGE REVIEW BOARD HEARING RECORD 

- - - - - - - - - - - - - - - - - - - - - - - - - - - - - a  

TYPE UOTH  I 
' - 

C;oUNSEL 

PERSONAL APPEARANCE 

I 

NAME OF C O U N S ~ L  A N D  OR ORGANIZATION 

YES 

No 
X 

L 

r: 

C - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - I  

1  ISSUES 

A93.23 

INDEX NUMHklt 

A94.07 

I 

I 

SRA 

1 
1  X 

RECORDREVIEW 

I 

ADDRESS A N D  OR OIlASD Ill(.  EE WING.  3RD FLOOR 
ANDREWS  APB, ~ D 2 0 1 6 2 - 1 0 0 2  

I 

AFHQ FORM 0-2077, JAN 00 

I 
(EF-V2) 

Previous edition will be  used 

1 

I 

AIR FORCE DISCHARGE REVIEW BOARD DECISIONAL RATIONALE 

CASE NUMBER 

FD-2005-00466 

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

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

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

FINDINGS:  Upgrade of discharge is denied. 

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

ISSLTE: 

Applicant contends his discharge was inequitable because he has a mental disorder which was undiagnosed 
while he was on active duty but subsequently diagnosed after his discharge.  He further contends his 
inappropriate behavior was a result of his undiagnosed mental disorder.  The records indicated the applicant 
rcquested discharge in lieu of Court Martial.  Thc applicant tested positive for marijuana use during a 
random urinalysis drug test.  The DRB opined that although applicant contends he has a mental disorder and 
the lack of documentation provided  in his application, it did not impair his ability to know right from wrong 
or ability to choose the right.  The Board concluded the misconduct was a significant departure from conduct 
expected of all military members.  The characterization of the discharge received by the applicant was Found 
to be appropriate. 

CONCLUSIONS:  The Discharge Review Board concludes that the discharge was coilsistent with the 
procedural and substantive requirements of the discliarge 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. 

Attachlent: 
Examiner's Brief 

DEPARTMENT OF THE AIR  FORCE 

AIR  FORCE DISCHARGE REVIEW BOARD 

ANDREWS AFB, MD 

(Former SRA)  (HGH SGT) 

1.  MATTER UNDER REVIEW:  Appl rec'd a UOTH Disch fr USAF Charleston AFB, SC on 6 
Feb 91 UP AFR 39-10, Chapter 4, para 4-11 (Discharge in Lieu of Court Martial) 
Appeals for Honorable Discharge. 

2.  BACKGROUND: 

a. DOB: 20 Oct 61.  Enlmt Age: 21 0/12.  Disch Age: 29 3/12. Educ: HS DIPL. 
AFQT: N/A.  A-47,  E-41,  G-50,  M-63. PAFSC: 90250 -  Medical service Specialist. 
DAS: 28 Oct 87. 

b.  Prior Sv:  (1) Enlisted USAFRes as A1C 20 Oct 82 for 6 yrs.  Svd: 1 yr 1 

month 15 days, of which AMS is 9 months 1 day. 

( 2 )   Reenlisted USAF as Amn 6 Dec 83 for 4 yrs.  Reenlisted 8 
Jul 87 for 4 yrs. Svd: 5 yrs 10 months 13 days, all AMS.  A1C  -  6 Jun 84.  SrA - 
6  Nov 86.  Sgt-(APR Indicates): 3 0   Sep 87-29 Sep 88.  APRs: 9,7,9,9,8,8. 

3.  SERVICE UNDER REVIEW: 

a.  Reenlisted as Sgt 20 Oct 89 for 4 yrs. Svd: 01 Yrs 03 Mo 16 Das, all 

AMS . 

b.  Grade Status:  SrA -  6 Nov 86  (AF Form 418, Vacation of NCO Status) 

c.  Time Lost:  None. 

d.  Art  15's:  None. 

e.  Additional: None. 

f.  CM:  None. 

g.  Record of SV: 21 Mar 89 -  20 Mar 90   hei in-Main AB  4  (Annual) 

h.  Awards &  Decs:  AFOUA W/1 DEV, AFGCM, AFLSAR, SAEMR, AFOSLTR. 

i.  Stmt of Sv:  TMS:  (08) Yrs  (03) Mos  (17) Das 
TAMS: (07) Yrs  (11) Mos  (02) Das 

4.  BASIS ADVANCED  FOR REVIEW:  Appln  (DD Fm 293) dtd 15 Nov 05. 

(Change Discharge to Honorable) 

Issue 1:  Mental Disorder undiagnosed while on active duty, but subsequently 

diagnosed after service caused my inappropriate behavior.  I will provide M.D. 

statement separately. 

ATCH 
1. DD Form 214. 

DEPARTNIEIVT OF THE AIR  FORCE 
HEADQUARTERS SEVENTEENTH AIR FORCE IUSAFE) 

APO NEW YORK  091385002 

REPLY  TO 
ATTN  OF:  JAD (Maj : 

C.-.-..-.-..-.-..-.-l 

.................... 

i )  

't 1 DEC  1890 

......................... 

SUnJECT.  ;~~q~gt-f-?r-I,$scharge in Lieu of Court-Martial, SrA : 

:,  USAF Clinic, Rhcln-Main AB, Germany  : - - - - - - - - - - - - - - - - - - - - - - - I  

TO: 

L..-.-..-.-..-.-..-. 

CC  h' 
k 

1.  This file i s  before you because AFR  39-10, para 4-11, requires your action 
on reque ts for discharge in lieu of court-martial. 

2. 

FACTS: 

a.  On 17  October 1990, as part of a random inspection for drugs, the 

respondent provided a urine sample which tested positive for a metabolite of 
THC, the psychoactive ingredient of marijuana.  He was interviewed by the 
AFOSI  on 7 November 1990, and provided a written statement wherein he related 
two instances during the mid-September  to early October 1990 timef rame , where 
comes to a full confession is where he states: "... 1 took a few puffs not 
he become intoxicated at parties and may have smoked hashish.  The closest he 

fully knowing that they poaeibly had hashish in them."  On 7 November 1990, he 
agreed to provide another urine sample which also revealed the presence of THC 
metabolites. 

b.  On 7 Dec 90, the Rhein-Main Clinic commander preferred a single 

apecification alleging use of marijuana on divers occasions, a violation of 
Article 112a of the UCMJ,  On 10 Dec 90, the respondent submitted a request 
for discharge in lieu of court-martial.  After consideration of his duty 
performance, military record, and the offense charged, both his immediate 
commander, on 11 Dec 90, and 435 TAW/CC, on 13 Dec  90, recommended acceptance 
of the request. 

3.  MATTERS SUBMITTED BY THE; RESPONDENT:  He has submitted only the request. 

APPLICABLE LAW: 

a.  Airmen may request dlscharge in lieu of trial by court-martial if 

charges have been preferred with respect to an offense for which a punitive 
dlscharge is authorized (AFR 39-10, para 4-1). 
A punitive discharge may be 
adjudged upon any conviction under Article  123a, UCMJ. 

b.  Characterization of service is determined solely by the respondent's 

military record in the current enlistment.  A UOTHC discharge is customary 
when the basis for the discharge is in lieu of trial by court-marrial  (MR 
A  general discharge is warranted when significant negative 
39-10, para 4-2). 
aspects of the respondent's  conduct outweigh positive aspects of his military 
An honorable discharge is only authorized i f  
record (AFR  39-10, para 1-18b). 

the respondent's  service record is so meritorious no other characterization is 
appropriate (AFR  39-10, para 4-2b ( 2 ) ) .  

c .   Individuals discharged in lieu of  trial by court-martial are not 

eligible for suspension of their discharges for probation and rehabilitation 
(AFR  39-10, para 7-2). 

5 .   ERRORS  AND IRREGULARITIES:  None which prejudice the accused  or impact on 
the decision in this case. 

6.  LEGAL ANALYSIS:  Acceptance of this waiver is consistent with the 
maintenance o f   good order and discipline,  The cage file establishes the 
charge; the prospects of an acquittal at trial are extremely remote.  However, 
the prospects for an inappropriately light sentence at trial appear to be too 
great.  A sentence that included no confinement and no punitive discharge is a 
very real possibility, one that would send entirely the wrong message.  SrA 
Ramos was an NCO at the time of he smoked hashish and deserves the worst 
service characterization reasonably available.  We can best ensure this 
through acceptance of his request for discharge and the characterization of 
his service as under other than honorable condirions. 

7.  OPTIONS:  You may: 

a.  Accept the request and approve either an honorable, general, or under 

other than honorable conditions discharge. 

bq  Reject the request. 

c.  Direct that the respondent be retained in the USAF. 

8.  RECOMMENDATION:  Accept the request for discharge in lieu of trial by 
sf~~i~~.-4tc.h,?,Ai.ec!gr~hg.the.-xe~.~ondent 

with a uOTHC= 

,-..-. 

Staff Judge Advocate 

2 Atchs 
1.  Action 
2. 

Caae File 

CC:  435 TAW/JA w/o Atchs 

DEPARTMENT OF THE AIR  FORCE 
HEADQUARTERS 436TH TACTICAL AIRLIFT WINO  (MAC) 

APO NEW YORK  09097-5000 

REPLY  TO 
ATTN  OF: 

CC 

SUBJECT: 

Request  for  Discharge in Liau of  Trial by  Court-Martial, SrA : 
------------------- 
'  USAF Clinic, Rhein-Main AB,  CtE 
:' 

C.................. 

, - - - - - - - - - - - - - - - - - - - - - - ,  

L-.-..-.-..-.-..-..----:' 

After  careful consideration  of  the immediate commander's  recommendation and 
ratianale, I  recommend acceptance o f  S r A  I .......................  I request ~ f - - l R ,  
December  1900 for diecharge  in  lieu of  trial by  court-martial. SrA  I------- : has 
served  the Air  Force satisfactorily for over  seven yeara  prior  to , - - - hi8 
- - - -  positive 
i  clearly 
u~inalyeia. A#  an NCO at  the time of  the offense, however, SrA: 
failed to maintain  Air  Force standards  by  engaging  in d ~ u g  abuaeb:--3lii 
discharge fa*  thia breach  of discipline  is clearly warranted.  Further, in 
light of the seriouer nature  a t   the charged mi~aonduot, I  recomm~nd a discharge 

......................... 

. .- und&r-othe~ -kh@JI. h ~ ~ ~ r ~ b l - ~ - 2 ~ n d i f i i m ~ , ,  

MAC - THE BACKBONE OF DETERRENCE 

REPLY TO 
ATTN OF:  435 TAW/JA (MaJ  ;------------il 
SUBJECT:  Request  for Discharge  in Lieu of Trial by Court-Martial, SrA i 
------------------ -------------- 

1 1  December  19Q0 

, - - - - - - - - - - - - - 

i,  USAF Clinic, Rhein-Main AB, QE 

L - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - -  

, - - - - - - - - - . 
b . . . -. -. . .' 

L.-.-....-.-....-.-...- 

-....-.-....-.-....-.-. 

1.  On  7  December  1990, one c h a ~ g e  involving one epecification o f   wrongful use 
of  a controlled aubrtancc  (violation of  Art  112~1, UCMJ)  wan  preferred  againet 
:.  (Note:  his NCO  atatua  has been vacated  and  he will 
S g t  
be referred to hereafter as SrA;------il. The Specification  alleges that on 
more  than one occasion between  17 September  l9Q0 and  7  November  1990, he 
wrongfully  used  marijuana,  in the Federal  Republic of  Germany.  This charge 
has not  yet  been  referred  to trial. On  10 December  1990, SrA Ramos  submitted a 
requetft  for discharge in lieu of  trial by  court-martial under the provisions 
of  AFR  39-10. Chapter 4. 

------- 

BACKQROUND: 

a.  On  17 October  1900. the accused submitted a urinalyaia  sample pursuant 

to random inspection  testing. The sample waa  tested by  the US Army 
Forensic Toxicology  Drug Teeting  Laboratory  (USAFTDTL) at Wiesbadcn  Air  Base 
on 30  and 31 October  lQQ0 and was determined  to contain THC metabolite, 
indicating  the preaence  of marijuana.  On 7 November  1990, the accused was 
interviewed  by  the OSI after rightg  advisement and provided  a written 
statement.  He stated that  in mid-September he went  to a party  with a German 
friend and became  very  intoxicated.  He said his Qerman  friend  told him that 
he had  gone  into a room where people were amoking hashiah and  the friend 
assumed  the accused also amoked.  The accused  stated that he did not ramember 
i f   ha smoked hoshiah  or not due to his  level of  intoxication.  He also stated 
that he attended a second party  with  this same  German friend about  2 to 2 1/2 
weeka  later.  The accused  aaid  that  'funny  smelling'  aigarettes were present. 
He said a  cigarette was paaaed  to him and he took a few p u f f 8   'not  fully 
knowing  that they poaeibly  had  hashish  in  them.'  He again described  h i a  
condition as  'very,  very  intoxicated.'  On 7 November  1QQ0, the accused 
consensually submitted another urine #ample after questioning by  the OSI. 
Verbal  confirmation was received  f ~ o m  the USAFTDTL  that this sample was  a180 
poaitive  for THC. 
, - - - - - - - . 
L - - - - - - -1 

: i s  20 yesra  old and  has slightly over  seven years  in the 

Air  Fosce.  He has had one perfosmance report close out  in the current 
enlistment, an overall  4 which reflects excellent duty performance.  Hia 
commander describes him a#  one of  top shift  leaders in the Acute Care clinic. 
Performance reports  in prior enlirtments have overall  ratings of  8, 8, 9, 9, 
7, Q,  We have verified through AFMPC  that he ha8 had  no previoua disoiplihary 
action8 during his career. 

b.  SPA : 

--------- 
- - - - - - - - - ,  

SPA i 

:commander has recommended approval  of  the requeat 

3.  DISCUSSION: 
for discharge after balancing  the member' s-oyey,sll record with  this 
mi sconduct.  The commander note#  that SrA i 
his perfosmance during  hlg  time in the Air  Force. He also points  out, however, 
that SPA Ram08  has had  a history  of  emotional problems  requiring  eome mental 
health counseling.  He has  also had a divorce and his daughter  lives with her 

:has had  peaks and valleys  in 

- - - - - - - a 

mother  in the United  States.  As  the  c o m m n d e r  recognizes, it is possible  in 
this care  that a court-martial  may  not  rerult  in a bad  conduct diGcharge.  A 
court may  look sympathetically on the accused brcaure of  his part 
difficulties. Further, the a c a u ~ c d ' g  etatement to the OSI suggeate a potential 
defenae that the aacuaed'n  uae  of  narijuana was unknowing.  The likelihood of 
this defense  being  euccaeaful  is queetionable  in  light of  the seaond 
conscnaual  urinalyaie  being  positive, however, It ~ t l l l  exist8  (eepecially i f  
the aacused c l a i m  to have a drinking problem).  Uee of m a ~ i j u a n a  by  an NCO  i~ 
, - - - - - - community. 
Acceptance  of 
aerious and  cannot be  tolerated within the military 
the request  far discharge would  eneure  that SrA ;------- 
and  that his service is characterized--+p~ropriatcly. A UOTHC discharge would 
send a clear signal  to others in S r A :  

- , 
: departs  the A ~ P  Force 

L - - - - - - - . 

:  unit. 

4 .   CHARACTERIZATION OF SERVICE:  Normally  discharger  in  lieu of  trial by 
court-martial  result  in an under other than honorable conditions  (UOTHC) 
discharge  (AFR 38-18,  para 4-21.  Thin  is also the characterization recommended 
by  the squadron commander. Such characterization  is appropriate when  the 
conduct of  the airman concerned represent8 a significant departure  from that 
expected of  an airman.  In light of  the eeriouanese of  SrA Ramos'  offense, such 
a characterization  would be appropriate  in thie case ahould you sleet to 
recommend acceptanae of  the request  for discharge. 

5.  ERRORS AND IRREaULARITIES:  There are no errors or  irregularitlee  in the 
case file prejudicial  to the accused.  I  note  that the charge sheet contain8 an 
error with respect to the current enlistment date.  This date should  be  26 
October  1989. Further, the charge sheet reflects that SrA Ram08  is a Sergeant. 
His NCO etatus was vacated  on 20 November  1090.  Both  irregularities can be 
remedied at trial, if  trial results. 

6.  ACTIONS WHICH MAY BE TAKEN:  As  the special court martial  convening 
authority; you have the following options: 

a.  Disapprove  this request  for discharge and allow trial by  court-martial 

to proceed. 

b.  Forward  the cane file to  17 AF/CC with s recommendation that the 

~ e q u e a t  for dincharge be  approved and  that the respondent receive an 
honorable, general, ar  UOTHC discharge. 

7.  RECOMMENDATION:  I recommend  that you forward the request top discharge  in 
lieu of  court-martial  to  17 AF/CC  with  a recommendation  that an under other 
than honorable  conditions discharge be  approved. 

-------------------------------------------------- 

L . . - . . . . - . . - . . - . - . . - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - l  

Staff Judge Advocate 

Atch 
USAF Clinic/CC Ltr, 
w/Atcb