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BERNSTEIN v. UNITED STATES

October 14, 1988

BERNSTEIN, BRUCE A.
v.
THE UNITED STATES OF AMERICA AND SECRETARY OF THE AIR FORCE



The opinion of the court was delivered by: GREEN

 CLIFFORD SCOTT GREEN, UNITED STATES DISTRICT JUDGE

 Plaintiff Bruce A. Bernstein ("Bernstein") is a former Senior Airman in the United States Air Force. Bernstein commenced this suit to expunge from his honorable discharge certificate received from the Air Force, the reference to drug abuse. Also, he seeks an order of reinstatement to the Air Force and backpay not in excess of $ 10,000. He asserts jurisdiction in this court to award money damages pursuant to the Tucker Act, 28 U.S.C. § 1346 and to order the correction of his discharge certificate and to order reinstatement because of irregularities in the discharge procedure pursuant to the Administrative Procedure Act ("APA"), 5 U.S.C. § 701 et seq. and federal question jurisdiction as provided by 28 U.S.C. § 1331.

 Plaintiff enlisted in the Air Force on June 6, 1980. A urinalysis test conducted on June 3, 1982 disclosed the presence of THC indicating marijuana use. On July 14, 1982, the Air Force issued a letter to plaintiff notifying him that, as a consequence of the urinalysis test result, discharge proceedings were being instituted against him.

 Plaintiff states in his complaint that Air Force officials promised that he would receive an honorable discharge, and therefore he signed a statement which in pertinent part states:

 1. I have been notified by my commander that I am being recommended for discharge under AFM 39-12, Chapter 2 Section I, Paragraph 2-109, and of the specific reason(s) for the proposed discharge. I have also been notified that an airman recommended for discharge under Section I is entitled to request a waiver, in writing, of the following rights:

 a. To present my case before an administrative discharge board.

 b. To be represented by military counsel.

 c. To submit statements in my own behalf.

 2. I state that military counsel has been made available to me and that I have been notified of my right to employ civilian counsel if I so desire.

 3. I hereby offer a conditional waiver of the rights associated with an administrative discharge board hearing (the condition being that I will be offered an honorable discharge). I will not be submitting statements in my own behalf.

 4. I have voluntarily signed this statement and retained a copy thereof.

 Directly above his signature and the signature of the Acting Area Defense Counsel is the following: The preceding statement of SRA Bruce A. Bernstein, 208-44-2652 was his decision, signed by him following counseling by me and after he was advised of his rights and privileges.

 In fact, plaintiff received an honorable discharge; however, the discharge contains a code to indicate that the reason for separation was plaintiff's ...


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