AIR FORCE DISCHARGE REVIEW BOARD DECISIONAL RATIONALE |
CASE NUMBER FD-2013-00193 |
GENERAL: The applicant appeals for upgrade of discharge to honorable and to change the reason and authority for the discharge. 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. The attached brief contains available pertinent data on the applicant and the factors leading to the discharge. FINDING: The requests for the upgrade of the discharge, and to change of reason and authority for discharge are denied. ISSUE: Applicant received a General discharge for Misconduct -Drug Abuse Applicant contends discharge was improper because he was discharged for use of Spice. He contends use of this substance was legal at the time and it was not formally banned by the Air Force until June 2010. 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 military service and airmen who abuse drugs one or more times are subject to discharge for misconduct." Paragraph 5.54.l defines drug abuse broadly to include "illegal, wrongful, or improper use, possession, sale, transfer, or introduction onto a military installation of any drug." The term "drug" is also defined broadly to include not just illegal or controlled substances, but also "any intoxicating substance, other than alcohol, that is inhaled, injected, consumed, or introduced into the body in any manner for purposes of altering mood or function." We also note that the respondent's punishment under Article 15, UCMJ did not allege violation of a lawful general order under Article 92, UCMJ. Rather, it charged the respondent with violation of Article 134, UCMJ, based on use of Spice that was prejudicial to good order and discipline. The Board did not find the lack of a current general order specifically addressing Spice to automatically make the respondent's Article 15 action and discharge based on drug abuse improper. Even without the presence of such a general order, a commander may reasonably find the evidence to support that an Airman's use of Spice was prejudicial to good order and discipline and punishable under Article 134, UCMJ. Additionally, applicant admitted to using marijuana prior to his enlistment. This, combined with his sworn statement, meets the requirement for drug abuse and shows he was not a one-time experimental user. After review of the record, the Board found the evidence to indicate that the applicant should have known and probably in fact did know that his use of Spice was wrongful or improper; in his four years of service, he should have been aware that the Air Force policy of zero tolerance to drug abuse would also prohibit use of Spice. The Board found the negative aspects of the willful misconduct outweighed the positive aspects of the applicant's performance and concluded that the discharge was appropriate."
CONCLUSION: 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 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 and determines the discharge should remain unchanged. |
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 | CY2013 | FD-2013-00490
GENERAL: Theapplicantappealsforupgradeofdischargetohonorable,tochangethereasonand authorityforthedischarge,andtochangethereenlistment code. TheapplicantappearedandtestifiedbeforetheDischargeReviewBoard(DRB),withoutcounsel,atJoint BaseAndrews,Maryland,on21August2014. Theattachedbrief contains availablepertinentdataontheapplicantandthefactorsleadingtothedischarge.
AF | DRB | CY2013 | FD 2013 00490
GENERAL: Theapplicantappealsforupgradeofdischargetohonorable,tochangethereasonand authorityforthedischarge,andtochangethereenlistment code. TheapplicantappearedandtestifiedbeforetheDischargeReviewBoard(DRB),withoutcounsel,atJoint BaseAndrews,Maryland,on21August2014. Theattachedbrief contains availablepertinentdataontheapplicantandthefactorsleadingtothedischarge.
AF | DRB | CY2013 | FD-2013-00580_13
GENERAL: Theapplicantappealsforupgradeofdischargetohonorable.TheapplicantwasofferedapersonalappearancebeforetheDischargeReviewBoard (DRB)butdeclinedandrequeststhatthereviewbecompletedbasedontheavailableservicerecord. Theattachedbriefcontainsavailablepertinentdataontheapplicantandthefactorsleadingtothedischarge. FINDING: TheBoarddeniestheupgradeofthedischarge.
AF | DRB | CY2015 | FD-2014-00396
GENERAL: TheapplicantappealsforupgradeofdischargetoHonorable.Theapplicantwasofferedapersonal appearancebeforetheDischargeReviewBoard(DRB)butdeclined andrequeststhatthereviewbecompletedbasedontheavailableservicerecord.Theattachedbriefcontainsavailablepertinentdataontheapplicantandthefactorsleadingtothedischarge. FINDING: TheBoarddeniestheupgradeofthedischarge. ISSUE: TheapplicantreceivedaGeneraldischarge forMisconduct...
AF | BCMR | CY2013 | BC 2013 02140
________________________________________________________________ STATEMENT OF FACTS: On 25 May 10, the applicant enlisted in the Regular Air Force for a period of six years. ________________________________________________________________ THE BOARD DETERMINES THAT: The applicant be notified that the evidence presented did not demonstrate the existence of material error or injustice; that the application was denied without a personal appearance; and that the application will only be...
AF | DRB | CY2013 | FD-2013-00378_13
GENERAL:Theapplicantappealsforupgradeofdischargetohonorable.TheapplicantwasofferedapersonalappearancebeforetheDischargeReviewBoard(DRB)butdeclinedandrequeststhatthereviewbecompletedbased ontheavailableservicerecord. Theattachedbriefcontainsavailablepertinentdataontheapplicantandthefactorsleadingtothedischarge.FINDING:TheBoarddeniestheupgradeofthedischarge.TheBoardfindsthatneithertheevidenceofrecordnorthatprovidedbythe applicant substantiates...
AF | DRB | CY2013 | FD-2013-00377_13
GENERAL: Theapplicantappealsforupgradeofdischargetohonorable. TheapplicantwasofferedapersonalappearancebeforetheDischarge ReviewBoard(DRB)butdeclinedandrequeststhatthereviewbecompletedbasedontheavailableservicerecord. Theattachedbriefcontainsavailablepertinentdataontheapplicantandthefactorsleadingtothedischarge.
AF | DRB | CY2013 | FD-2013-00335_13
GENERAL: The applicantappealsforupgradeofdischargetohonorable. TheapplicantwasofferedapersonalappearancebeforetheDischargeReviewBoard(DRB)butdeclinedandrequeststhatthereviewbecompletedbasedontheavailableservicerecord.Theattachedbrief containsavailablepertinentdataontheapplicantandthefactorsleadingtothedischarge.FINDING:...