AIR FORCE DISCHARGE REVIEW BOARD DECISIONAL RATIONALE |
CASE NUMBER FD-2013-00490 |
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 appeared and testified before the Discharge Review Board (DRB), without counsel, at Joint Base Andrews, Maryland, on 21 August 2014.
The attached brief contains available pertinent data on the applicant and the factors leading to the discharge.
FINDING: The Board grants the requested relief to upgrade the service characterization, change the reason and authority for discharge, and to change the reenlistment code.
ISSUE:
Issue. Applicant contends his discharge for drug abuse based on use of Spice was improper because it was based upon abuse of a substance that was declared off limits after he used it. He contends he lost his individual right to fair judgment as the use of spice was widespread throughout the fire department. He submits proof of this in that his discharge was accelerated to prevent him from reaching the end of his first term of service, in which case he would have received an honorable discharge before the discharge was complete.
The record indicates that the applicant was discharged for Misconduct - Drug Abuse. He received a nonjudicial punishment under Article 15 of the Uniform Code of Military Justice (NJP) for wrongfully using Spice, a prohibited substance, on multiple occasions with the intent to become intoxicated or alter mood or function. This NJP was not complete at the initiation of the discharge. The record does indicate applicant's discharge was accelerated to ensure completion before application reached his natural date of separation. The record contained no additional derogatory data and he received the highest possible rating of 5 on his Enlisted Performance Reports.
The applicant's sworn testimony, supported by the Office of Special Investigations (OSI) Report of Investigation (ROI), was that he was among a group of individuals who used Spice recreationally, in social settings such as barbeques. Spice was readily available for purchase. The applicant stopped using Spice months before the other members of the group did. The applicant testified he stopped using because he saw an email that Spice was prohibited and that it had negative effects. Prior to the email, the applicant thought Spice was no more harmful than alcohol, a nutritional supplement, or an energy drink. The applicant could not remember when he saw that email or exactly when he stopped using Spice but testified the two events were linked. It was not until six months or more later that he was questioned by OSI. At that time, he never consulted an attorney, trusting that being truthful about his use and when he stopped it would be enough. Likewise, when facing NJP and discharge, he did not consult an attorney which may have been a factor in why the applicant did not present evidence that he met the seven retention criteria detailed in Air Force Instruction (AFI) 36-3208 to retain a military member in spite of drug use.
The applicant further testified that he is currently in a position that requires routine drug testing. He has never used an illegal drug and had no intention of abusing drugs when he used Spice. He is embarrassed that his DD Form 214 labels him as a person who has abused drugs. He provided letters of support from his supervisor and evidence of volunteer work.
The Board carefully assessed the applicant's testimony in light of the evidence in the record. The Board |
|
AF | DRB | CY2013 | FD-2013-00490
GENERAL: Theapplicantappealsforupgradeofdischargetohonorable,tochangethereasonand authorityforthedischarge,andtochangethereenlistment code. TheapplicantappearedandtestifiedbeforetheDischargeReviewBoard(DRB),withoutcounsel,atJoint BaseAndrews,Maryland,on21August2014. Theattachedbrief contains availablepertinentdataontheapplicantandthefactorsleadingtothedischarge.
AF | DRB | CY2011 | FD-2009-00730
The applicant appeared and testified before the Discharge Review Board (DRB) without counsel at Andrews — AFB on 21 Jun 2012. In his testimony , he described the effects of the products similar to smoking a Newport and described Spice as providing a longer “boost.” The fact Spice was not specifically listed as a prohibited substance until June 2010 does not exclude its use from being a basis for discharge per AFI 36-3208, paragraph 5.54, which states, "Drug abuse is incompatible with...
AF | DRB | CY2013 | FD-2013-00353_13
GENERAL:Theapplicantappealsforupgrade ofdischargetohonorable,tochangethereason andauthorityforthedischarge,andtochangethereenlistmentcode.TheapplicantwasofferedapersonalappearancebeforetheDischargeReviewBoard(DRB)butdeclinedandrequeststhatthereviewbecompletedbasedontheavailableservicerecord. Theattachedbriefcontainsavailablepertinentdataontheapplicantandthefactorsleadingtothedischarge. FINDING:Upgradeofthedischarge,changeofreasonandauthorityfordischarge,andchangeofreenlistmentcodearedenied.
AF | DRB | CY2015 | FD-2014-00513
AJRFORCEDISCHARGEREVIEWBOARDHEARINGRECORDNAME OFSERVICEMEMBER(LAST,FIRST MlDOLE INIT"IAL)(b)(6)GRADETYPE GE I PERSONAL APPEARANCEx I RECORD REVIEW COIJNSEL:NAMEor COUNSELANDORORGAN17-TIONADDRESS ANDORORCANIZATIONOF COUNSEi,.YES No x MEMBER SITTI G VOTEOFTHEBOARDHONGENUOTHCOTllERDENY(b)(6)xxxxxISSUES A94.53 11''0£;\ NU)18£R A66.00EXHIBITSSUBMI1TEDTOTHEBOARD1ORDERAPPOINTINGTHEBOARD2APPLICATION FORREVIEWOFOISC'llARGE3LETTEROFNOTIFICAT ION4BR IEFOFPERSONNELFILECOUNSEL'SRELEASETO...
AF | DRB | CY2014 | FD-2014-00312
GENERAL: Theapplicantappealsforupgradeof dischargeto honorable,change thereasonandauthority forthedischarge, andchangethereenlistmentcode. Theapplicantappearedandtestified beforetheDischarge ReviewBoard(DRB),withoutcounsel,at AndrewsAFBon10Dec2014. Thefollowingadditional exhibitsweresubmitted atthehearing: Exhibit #:Applicant'sContentionsTheattachedbriefcontains availablepertinentdataontheapplicantandthefactorsleadingtothedischarge.
AF | DRB | CY2014 | FD 2014 00312
GENERAL: Theapplicantappealsforupgradeof dischargeto honorable,change thereasonandauthority forthedischarge, andchangethereenlistmentcode. Theapplicantappearedandtestified beforetheDischarge ReviewBoard(DRB),withoutcounsel,at AndrewsAFBon10Dec2014. Thefollowingadditional exhibitsweresubmitted atthehearing: Exhibit #:Applicant'sContentionsTheattachedbriefcontains availablepertinentdataontheapplicantandthefactorsleadingtothedischarge.
AF | DRB | CY2013 | FD-2013-00193_13
GENERAL: Theapplicantappealsforupgradeofdischargetohonorableandtochangethereasonand authorityforthedischarge.Theapplicantwasofferedapersonal appearancebeforetheDischarge ReviewBoard(DRB)butdeclined andrequeststhatthereviewbecompletedbasedon theavailableservicerecord.Theattachedbriefcontainsavailablepertinentdataontheapplicantandthefactorsleadingtothedischarge. FINDING: Therequestsfortheupgradeofthedischarge,andtochangeofreasonandauthorityfor dischargearedenied. ISSUE: Applicant...
CG | BCMR | Discharge and Reenlistment Codes | 2006-134
[The applicant] should be retained in the Coast Guard. of the Personnel Manual state that a drug incident is determined by the member’s commanding officer, and the applicant’s CO had determined that there was just one drug incident. of the Personnel Manual provides that the BOR shall “review[] the records and documented evidence the board of inquiry considered and made a part of its proceedings and any additional information the officer concerned or the recorder submitted under Article...
AF | DRB | CY2011 | FD-2011-00008
The applicant was offered a personal appearance before the Discharge Review Board (DRB) but declined and requests that the review be completed based on the available service record. FINDING: The Board denies the upgrade of the discharge. The record indicates that the applicant received a Letter of Reprimand for wrongful use of spice.
AF | DRB | CY2014 | FD-2014-00466
GENERAL:Theapplicantappealstochangethereasonandauthorityforthedischarge,andtochangethe reenlistmentcode. TheapplicantappearedandtestifiedbeforetheDischargeReviewBoard(DRB),withoutcounsel,at AndrewsAFBonDecember18,2014. Theattachedbriefcontainsavailablepertinentdataon theapplicantandthefactorsleadingtothedischarge.