MEMBER SITTING 

Advise applicant of the decision of the Board. 

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

* CHANGE RE CODE 

550 c STREET W E S . ~ ,  SUITE 40 
MNDOLPH AFB, TX 781 50-4742 

FORCE DISCHARG 
COMMAND DR. EE 

AFHQ FORM 0-2077, JAN 00 

(EF-V2) 

Previous edition will be used 

AIR FORCE DISCHARGE REVIEW BOARD DECISIONAL RATIONALE 

CASE NUMHER 

FD-2006-00144 

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

The applicant was offered a personal appearance 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:  The Board grants the requested relief. 

The  Board  finds  that  neither  the  evidence  of  record  nor  that  provided  by  applicant  substantiates  an 
impropriety  that  would  justify  a  change  of  discharge.  However,  based  upon  the  record  and  evidencc 
provided  by  applicant, the Board  finds the applicant's  characterization, reason  and  authority for discharge, 
and reenlistment code are inequitable. 

ISSUE: 

Member received a general discharge for alleged drug abuse.  Applicant infers his discharge was too harsh 
because he was not guilty of the alleged offenses.  After a thorough and complete consideration of the 
information submitted by the applicant and information contained in the record, the Board concluded there 
was sufficient mitigation and extenuation to substantiate upgrade of the discharge, to thc change the reason 
for discharge, and the reenlistment codc. 

CONCLUSIONS:  The  Discharge  Review  Board  concludes  that  the  discharge  was  consistent  wit11  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  loregoing  findings,  the  Board  further  concludes  that  the  overall  quality  of 
applicant's  servicc is more accurately reflccted  by  an Honorable  discharge, and the reason for the discharge 
is  more  accurately  described  as  Secretarial  Authority.  The  applicant's  characterization  and  reason  for 
discharge  should be  changed  to Honorable and  Secretarial Authority  under the provisions of Title  10, USC 
1553. 

Attachment: 
Examiner's Brief 

DEPARTMENT OF THE AIR  FORCE 

AIR  FORCE DISCHARGE REVIEW BOARD 

ANDREWS AFB,  MD 

(Former AlC)  (HGH ALC) 

1.  MATTER UNDER REVIEW:  Appl recrd a GEN Disch fr USAF Cannon AFB, NM on 12 Feb 
04 UP AFI 36-3208, para 5.54 (Misconduct -  Drug Abuse).  Appeals for an Honorable 
Discharge, and to Change the RE Code, Reason and Authority for Discharge. 

2.  BACKGROUND: 

a, DOB: 10 Apr 81. Enlmt Age: 20 4/12.  Disch Age: 22 10/L2. Educ: HS DIPL. 

AFQT: N/A.  A-67,  E-57,  G-64,  M-76. PAFSC: 1C151 - Air Traffic Control 
Journeyman. DAS: 28 Apr 02. 

b.  Prior Sv: (1) AFRes 7 Sep 01 -  26 Sep 01  (20 days)(Inactive). 

3 .   SERVICE UNDER REVIEW: 

a.  Enlisted as AB  27,Sep 01 for 4 yrs. Svd: 02 Yrs 04 Mo 16 Das, all A M S .  

b.  Grade Status:  A1C -  27 Jan 03 
A m  -  27 Mar 02 

c.  Time Lost:  None. 

d,  Art15's:  None. 

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

f.  CM:  None. 

g.  Record of SV: 27 Sep 01 -  27 May 03  Cannon AFB  4  (Initial) 

h,  Awards &  Decs:  NDSM, AFTR. 

i.  Stmt of Sv:  TMS: (02) Yrs  (05) Mos  (06) Das 
TAMS: (02) Yrs  (04) Mos  (16) Das 

4.  BASIS ADVANCED FOR REVIEW:  Appln  (DD Fm 293) dtd 05 Apr 06. 

(Change Discharge to Honorable, and Change the RE Code, Reason and Authority 

for Discharge) 

ISSUES ATTACHED TO BRIEF. 

ATCH 
1. Applicant's  Issues. 
2. Police Record  Check. 
3. DD Form 214. 
4. Enlisted Performance Report. 
5. Letter of Reprimand. 
6. Notification of Suspension of Access. 
7. ATCS Certification  Suspension. 
8. Response to Letter of Reprimand. 
9. Notification Memorandum. 
10. Written Presentation to Discharge. 

14 April 2006 
Attachment A 
Page 1 of 2 

MEMORANDUM FOR AU REWEWING AUTHORITIES 

SUBJECT: Upgrade / change request. 

My discharge was inequitable because it was based on one isolated incident in 29 

months of service with no other adverse action. Not only was this one incident, but and 
accusation, with no supporting facts. When I asked my command to produce this 
information which 1 have been wrongfully accused of, their response was "Its an on 
going investigation only at time of a court martial will this evidence be brought fourth." I 
told my legal repetition that's h e  I know I'm innocent and Sthey want to press UCMJ 
charges then I will answer to the courts. zclfter tbat response I was offered a special court 
- martial, which according to my attorney is a board of commanders, not a jury of my 
pears. My attorney advice was simple, Your commander intends to have you discharged 
who's  side do you think they'll  be on a Lt. Col going up for his 111 bird or an A1C who's 
just getting started,  and if you are found guilty your looking at possible jail time and 
dishonorable discharge. The only other evidence that I think could have persuaded the 
commander's mind is a previous civilian misdemeanor charge of possession properly 
listed on my enlistment documents, which in no way should effect the judgment of 
issuing a discharge. Why, for one in legal terms its called double jeopardy, and secondly- 
yes, in my past I have made stupid decision, but I have answered to the courts and paid 
my debt to society. I know I. was wrong then and I am truly sorry, I was once a young and 
naive child. The Air Force has molded me into a young and strong-minded man, and with 
this discharge I was never able to complete my dream of leading others to a career of 
victory. I fee1 I cannot move on in my life until this void is fulfilled, I tend to do this by 
enlisting in ahother Armed Stmice, but I cannot because of my f e e n t ~ ~  
code currently 
2B. This code needs to be changed to a 1 and an upgrade of my discharge to honorable. 
As far as evidence on my part it's hard to produce unless I knew more of the accusation. 
Where I stand is simple I was accused and investigated, I voluntary produce a urinalysis, 
which can up negative for all drug types, and subjcctd my property to search, I was 
never allowed to see the report of investigation, but I know nothing was found. I also 
intended to take all of my information to the inspectors general office, but due to the time 
frame of when this first started with an issue of an LOR on 12 January to the date of 
discharge 14& of Februsry 1 scheduled an appointment with thc kpector aftrr the 
discharge, and I was told tbat since I was no longer military, they could do nothing, I had 
to address my congressman. I have forwarded copies of all information I received upon 
discharge (see attachments). Please consider this i n f o d o n  when reviewing my 
discharge. Finally I would like to thank you for taking the time to review my request for 
the following changes: a discharge upgrade to honorable conditions, tbe separation code, 
minative reason for separation and mainly the reentty code change to 1 to allow another 
service the  discretion of admittance . 

2 April 2006 
Page2 of 2 

~ e S p e c ~ 1 Y -  !!?~?Ei%-d.. 

. . 

I - - - - - - -  

Attachments: 

DD214, EPR, LOR, notification of suspension access, 
ATCS certification suspension, response to letter of reprimand, 
Members dntg history, notiffcation memorandum, writtpn presentation to dischuge. 

i 
.------------------------------------ 

P 

14 April 2006 
Attachment B 
Page 1 of 2 

I - - - - - - - - - - - - - - - - - - - - - - - - - - - -  

- - - - - - - - - - - - - - - - - - - - - - - - - - - - I  

9 

i  honestly declare that: My discharge from the Air Force was unjudy 

MEMORANDUM FOR ALL REVIEWING AUTHORITIES 
FROM: : 
SUBJECT: Statement of situation occunred. 
.--------------------. 
1 I .-....-._-.-..-..---, 
executed, in no way am I guilty of drug use. The situation occurred as follows: 
Approximately two weeks after I came back from Christmas leave my first sergeant 
escorted me to OSI offices; he said they wanted to ask me some questions. Upon arrival I 
was figure printed and placed in a holding cell. Two investigators asked me numerous 
questions, which I answered honestly. Finally I was told 1 was being investigated for drug 
use. At this t h e  I requested legal representation, all questions were stopped, the 
investigators asked if I would consent to a urinalysis and property search, I consented 
without legal representation. Immediately OSI placed in cuffs and read me my rights, and 
escorted to the hospital for urinalysis. After tbat I took them to my apartment off base and 
allowed them to search my property and vehicle, all without legal representation. I was 
then released. A couple days later I was ordered to report to the commander's office, 
upon arrival I was issued a Letter of Reprimand for, "In mid-October 2003 you 
wrongfully used marijuana at or near Clovis, New Mexico. According to section 3 of my 
LOR, I am required to receive and sign the LOR if I wish to respond. " Your written 
acknowledgment of receipt and signature are MANADORTORY ," Before I signed the 
LOR, 1 consulted my attorney, she advised me that the USM was not bringing judicial 
punishment, my LOR was consided non-judicial punishment, and therefore she could 
not legally petition for me. She instructed on how to respond to the LOR, which I did. In 
my response I denied the charges and cited my three d y s i s  test which all *turned 
negative. Along with a submitting a rebuttal to my LOR, I requested via my attorney the 
OSI report of investigation. I was denied the report because it was an ongoing 
investigation and only at the time of a cog-m-artial would I get to see this "so  called 
evidence" against me. My attorney, Capt 1 - - - - - 3 communicated with me that Lt. Col 
I --------- i intended to discharge me with an LOR; I repeatedly denied the charge to the 
LOR Signing m LOR is not an admission of guilt, as cited on the second page above my 
signature it is an acknowledgment that I received the letter. My LOR response also 
hcluded extensive referral to my test results fiom my urinalysis. My entire tests were 
negative for any and all drug use. I contacted the drug testing office in Texas they told me 
that if someone had used marijuana their drug testing would show any use in the past 45 
days. According to my urinalysis I had testing before and after the accused date with no 
laps of 45 days. This was also included in my LOR response. I also wrote that this was a 
violation of my rights. In return thru my attorney I was ?ffkrdea 
My attorney's  advice was simple. The way Commander; ----- ---: 
discharge is not normal, he is using so-catled back doors around this discharge. She told 
me my commander's intent was to discharge me anyway he can. She advised me of what 

a special court martial. 
:was going about this 

I - - - - - - - - -  

14 April 2006 
Attachment B. 
Page 2 of 2 

a special court martial is-which is a jury of commanders, and not my peers. She to me I 
ran a huge and very likely risk of being discharged under a character of dishonorable with 
possible judicial punishment. In this special court martial, which rule of law would be 
used? The rule of science where repeated negative test results, were already ignored. My 
attorney advised me this would probably be a fair and equitabIe heariug. She advised me 
to decline the special court martial. I declined the special court martial, if my 
commander's intent was to discharge me on an LOR, I wasn't going to risk a court 
martial or be put in a situation where I had no control. I intended to take all of my 
information to the base inspectors general's ofice, but due to some unforeseen 
emergency dental repair (root c a d )  I was unable to make the appointment. I went to the 
inspector's office after my date of discharge; they turned me away because I was no 
longer a military member. I was referred to contact my congressmen in Florida, for a 
possible congressional hearing. Since this discharge I was told I had to wait 1-year before 
I could petition for and upgrade. 

MEMORAMAND: FOR ALL REVIEWING AUTHORIBS. 

L r w -   a c - 1 2 - 1 1  

p + m d - m / H  

18 April 2006 

,...~.~....~....~.~..~.~..- 

FROM: i 

- - - - - - - - - - - - - - - - - - - - - - - - - - I  

SUBECT: Statement of misdemeanor charge. 
...................... 
I ! ---------------------- !do honestly declare that on the 1 9'h of November 1999, I was charged 
with possession of 20 grams or less of cannabis. On the night in question,'my %end 
.------. 
: L - - - - - - l  :and I were going to apm;ye,were driving in my vehicle thru St. Cloud, Florida. 
I was pulled over by officer - - - - - - - - - - - i. for a broken taillight. My friend had some 
marijuana that was placed wder the seat. Due to my suspicious activity the officer asked 
me to step out of the car, he asked if he could search my vehicle and if I had and illegal 
drugs in the car. I told the officer that yes there was some marijuana in the car under the 
seat. My vehicle was searched and the cannabis was retsieved,the passenger and myself 
were ci&  for possession of marijuana. On February 8,2000 I wasassummoned to appear 
in court to m e r  for my actions, on the night in question. Due to the fact that I had no 
prior charges I was accepted into the county diversion program-, which is a first time 
offenders program. The program consisted of consecutive drug testing and community 
service and monthly visits to a probation office. I completed all the program 
requirements. All my urinalysis tested negative. I completed 100 hours of community 
service at the Orlando YMCA. I paid a total of 427.00 for probation cost and drug testing. 
Since this night in question I have not used or had any illegal drug in my possession. I 
sincerely apologize for my actions. One thing I have learned fkom this is that use of drugs 
has no place in my life 

m 

DEPARTMENT OF THE AIR FORCE 

HEADQUARTERS 27th FIGHTER WING (ACC) 
CANNON AIR FORCE BASE NEW MEXICO 

23  Jan I 

MEMORAND'IJM FOR ~1  c 

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

: I?  27 OSS 

I 

FROM:  27 OSS/CC 

SUBJECT: Notification Memorandum 

1.  I am recommending your discharge fiom the United States Air Force for drug abuse.  The 
authority for this action is AF'PD 36-32 and AFI 36-3208, paragraph 5.54.  Ifmy 
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 22 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 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,  and any special pay,  bonuses,  or education assistance h d s  
may be subject to recoupment. 

I 

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

7.  You will complete a medical examination at the 27th Medical Group on  29  Jan  04 at 

I)  1000  -hours. 

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 kom http://afpubs.hq.af.miY. 

--------------------------.-------------.-------- 
Commander, 27 OSS 

Attachment: 
a. Letter of Reprimand, dated 12 Jan 04, w/response