THIRD ADDENDUM TO
RECORD OF PROCEEDINGS
AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS

IN THE MATTER OF: 			DOCKET NUMBER: BC-1998-03153

   						COUNSEL:  

   						HEARING DESIRED:  NO 

THE COURT DIRECTS:

The AFBCMR to provide the Court further explanation and the Board’s analysis which supports the AFBCMR’s decision to deny the applicant’s request to set aside the vacation of his suspended non-judicial punishment (NJP), dated 4 Nov 96, because he was suicidal when he committed the offense of disrespecting his commander and a senior noncommissioned officer.  The Board must state what difference it makes, if any at all, in reviewing the commander’s determination.  

The complete Court Order of Judgment, with attachment, is located at attachment L. 

RESUME OF THE CASE:

On 1 Dec 99, the Board considered and denied the applicant’s original request to set aside his Article 15, dated 22 Aug 96; Article 15, dated 6 Sep 96; and vacation of suspended nonjudicial punishment (NJP), dated 4 Nov 96.  In the initial case, he contended that all three actions were initiated by the same commander who failed to follow the advice of the legal office on these matters and refused to consider clear and convincing evidence that he was the victim of domestic violence, not the perpetrator of it.  Furthermore, the vacation of the suspended NJP was based on an incident which should not have been held against him; it took place when he was in an extreme emotional state when he was at the mental ward of the hospital in the aftermath of his suicide attempt.  His commander also failed to consider his excellent duty performance when he made these decisions.  For an accounting of the facts and circumstances surrounding the applicant’s original request and the rationale of the earlier decision by the Board, see the Record of Proceedings (ROP) at Exhibit F.

On 11 May 10, through counsel, the applicant submitted a new DD Form 149 requesting reconsideration based upon additional documentation obtained since the Board’s initial decision.  Counsel contended the original AFBCMR panel did not enjoy a fully developed argument and evidence showing the applicant was actually innocent of the charge of domestic violence.  On 27 Apr 11, the Board considered and denied the applicant’s request.  While he provided a voluminous submission describing the volatility of his relationship with his former spouse, a substantial portion of his submission was comprised of evidence that was a matter of record and considered by the commander during the NJP proceedings.  The remainder of his submission was comprised of medical documentation, a supporting statement from his current spouse, and copies of various studies regarding the effects of domestic abuse.  Nonetheless, the Board found the evidence insufficient to conclude the applicant did not commit the acts which formed the basis of the NJP actions, or that his commander abused his discretionary authority or failed to act in good faith when considering the evidence before him in arriving at an appropriate punishment for the applicant’s misconduct.  For an accounting of the facts and circumstances surrounding the applicant’s request for reconsideration and the rationale of the earlier decision by the Board, see the Addendum to the Record of Proceedings (ROP) at Exhibit I.

On 16 Aug 12, the Board reconsidered and denied the applicant’s request to declare void and remove the vacation of the suspended NJP; void and remove his two NJPs; be administratively reinstated to the rank of Staff Sergeant; and, be credited with sufficient active duty credit to qualify for, and receive, a 20-year active duty retirement.  The applicant’s counsel contended the Board did not consider several previous Board decisions, which were cited in the initial request for reconsideration, where relief was granted in comparable circumstances.  The applicant’s counsel argued the Court would likely find that the Board failed to do this and remand the matter to the AFBCMR for further consideration.  

Counsel provided a copy of a court decision addressing the matter of precedent in an Army Board for Correction of Military Records case.  In the case conclusion, the AFBCMR emphasized that while it strives for consistency in the manner in which evidence is evaluated and analyzed, the Board is not bound to recommend relief in one circumstance simply because the situation being reviewed appears similar to another case.  After reviewing the various cases cited by the applicant’s counsel, and in particular, the reasons given for the earlier Boards granting of relief, a majority was not convinced the applicant was the victim of an error or injustice.  Counsel’s primary argument remained to be that because there is evidence the applicant was subjected to abuse at the hands of his wife he must be innocent of the alleged offense of striking her and, as such, the initial and subsequent NJP actions should not have been rendered.  The majority of the Board did not find this a persuasive argument.  The Board member voting in the minority did not submit a minority report. 

On 14 Aug 15, the US District Court for the District of Columbia  remanded the case to the AFBCMR, directing that “(The applicant) submitted medical records showing that he was suicidal at the time when he committed the offense of disrespect, and the Board should state what difference this makes, if any, in reviewing the commander’s determination.  The Board’s decision fails to provide any basis upon which this Court could conclude the denial was the product of reasoned decision-making regarding the effect, if any, of (the applicant’s) mental state at the time of the disrespectful outburst.  The Board has not fulfilled its duty to provide a brief statement explaining “why it chose to do what it did.”  

AIR FORCE EVALUATION:

The AFBCMR Medical Consultant does not make a recommendation, but provides an extensive review of the applicant’s medical records.  Addressing the Court’s request for a reasoned decision regarding the applicant’s mental state of mind at the time of the disrespect, the Medical Consultant concedes an individual is more prone to express disrespect towards another individual when under the influence of the disinhibitory effects of drugs or alcohol.  In psychology, disinhibition is a lack of restraint manifested in disregard for social conventions, impulsivity, and poor risk assessment.  Disinhibition affects motor, instinctual, emotional, cognitive, and perceptual aspects with signs and symptoms similar to the diagnostic criteria for mania.  Thus, while the applicant’s use of alcohol does not excuse his actions, it may help explain his behavior.  Taken alongside the applicant’s co-morbid diagnosis of Personality Disorder it further likely explains his deficient impulse control at a given time.  In any case, while either of the applicant’s service mental health diagnoses may explain his behavior, neither excuses his behavior.  However, recommend a medical opinion be obtained from a psychologist or psychiatrist to determine if the applicant’s mental state presents a matter of extenuation or mitigation of the charge sufficient to expunge the charge of disrespect.  

A complete copy of the AFBCMR Medical Consultant evaluation is at Exhibit M.

The AFBCMR Clinical Mental Health Consultant recommends denial, indicating there is no evidence of an error or injustice.  The applicant has not provided sufficient evidence to conclude that error or injustice has been committed sufficient as to warrant redress.  While his state of intoxication may have left him momentarily unable to restrain his behavior, no evidence is provided which would mitigate his choice to drink, regardless of his state of emotional distress.  Additionally, while some evidence is presented to suggest personality disorder, or a (then) tentative diagnosis of bipolar disorder, the documentation falls short of suggesting an acute state severe enough to negate the applicant’s fundamental understanding of right and wrong/actions and consequences.  

A complete copy of the AFBCMR Clinical Mental Health Consultant evaluation is at Exhibit O.

APPLICANT'S REVIEW OF AIR FORCE EVALUATION:

In further support of his request, the applicant submitted a rebuttal response to the Air Force evaluations.  The rebuttal consists of his legal counsel’s summarization of the applicant’s entire case and contentions, and a personal statement from the applicant.  Counsel argues both advisories fail in their task of assessing whether the AFBCMR should excuse the applicant’s disrespect.  The issue is whether or not the Board should hold him responsible for his actions while he was suicidal and intoxicated, as the result of having been repeatedly beaten and personally and publically humiliated, and after his commander found him guilty where the only evidence of guilt was that of his accuser.  The applicant maintains he never beat his wife (the accuser), his first spouse of 12 years, or current spouse of 18 years.  The accuser is a pathological liar, and he was regularly abused by her.  He suffers from PTSD and is bipolar, feared for his life, was suicidal and intoxicated and was not capable of making rational decisions.  He should not be held accountable for being disrespectful.  (Exhibit Q) 

ADDITIONAL AIR FORCE EVALUATION:

The second AFBCMR Clinical Mental Health Consultant evaluation does not make a recommendation, but provides an analysis of the case, and concludes the issue facing the Board is not a medical issue, but an ethical issue inherent in Command.  The applicant’s legal counsel reminds the Board of the several witness statements written on behalf of the applicant attesting to acts of violence upon him, as opposed to the reverse.  Additionally, confounding the violation of a no-contact order, a statement was allegedly made by a Lieutenant Colonel (Lt Col), who apparently visited the applicant in his hospital room on 20 Aug 96, [date of release from a previous hospitalization], and when asked by the applicant if he could contact his spouse regarding the status of their marriage, reportedly stated, “That shouldn’t be a problem.”  The Lt Col then allegedly stated he would notify the applicant’s commander.  Nevertheless, an Article 15 was issued on or about 6 Sep 96 for the violation.  

Addressing the applicant’s clinical diagnoses (pl.), his clinical presentation is very complex and most likely indicates he suffers from multiple co-morbid Behavioral Health problems; with signs and symptoms which overlap.  Although the diagnosis of PTSD and Bipolar Disorder have been given to the applicant by the DVA, there is limited clinical evidence he suffered from either of these conditions while in the military, but particularly whether either condition should have caused career termination.  To the contrary, the applicant’s multiple inpatient and outpatient behavioral health evaluations documented the diagnosis of an Adjustment Disorder as the only sole Axis I condition.  Although a recent revision of Department of Defense policy [Apr 13] now acknowledges that when an individual’s Adjustment Disorder is characterized as Chronic, that is, exceeding six months in duration, it renders the individual eligible for processing via a Medical Evaluation Board.  However, at the time of the applicant’s service it was a medically disqualifying condition, regardless of duration, and was held as non-compensable and non-ratable by the Military Departments.  Moreover, when it has been determined an Adjustment Disorder is so severe as to significantly interfere with an individual’s ability to perform military service, the member would have been vulnerable for an involuntary discharge, under authority of AFI 36-3208, Administrative Separation of Airmen.  Given the applicant’s extensive Behavioral Health issues around 1996, this psychiatric consultant is bedazzled by the command’s decision not to discharge him administratively on that ground alone, but instead retained him for continued service and, indeed, gave him an Honorable discharge.  

Addressing the applicant’s claim his angry outburst during the offending 8 Oct 96 hospital visit should not be used as a reason for an Administrative Action, this consultant fully agrees with the AFBCMR Medical Consultant on the disinhibiting effect of the alcohol, which even on its own could fully explain the applicant’s behavior, but if considered in conjunction with his Cluster B Mental Health traits and baseline impulsivity and irritability problems, applicant’s behavior at the hospital is not surprising at all.  In fact, all he did was speak his mind.  The fact the applicant was intoxicated does not excuse him from the full responsibility of his actions and its consequences.  The claim he drank because he was so distressed is not a justification for intoxication.  When bad things happen, people get distressed.  Some are able to adapt to the stressor(s) using adaptive coping strategies such as exercise, meditation, talking to a friend, while others may choose a maladaptive coping strategy, e.g., use of alcohol or other drugs as a coping mechanism.  Stated differently, it is not the external force that had made the applicant drink that night, but it was his attempt at decreasing distress employing the coping strategy he knew.  

This consultant would like the Board members to reflect on the setting of the incident.  Since it is highly unlikely the applicant would be under the influence of alcohol on the inpatient psychiatric ward, one has to assume the interaction took place in the emergency room (ER), on 8 Oct 96, where he was brought in for evaluation after found drunk on the floor with cuts to his wrists. The ER is the clinical department devoted to treating people in CRISIS.  An intoxicated individual, who talks about wanting to die and has made an injury to his/her body would be considered to be in psychiatric crisis by most behavioral health specialists.  Thus, determining how much personal space and respect for privacy should have been given to the applicant by his Command in the attempt to show concern, but instead provoking the negative outbursts at that time, is the real dilemma in this case.  This is not an issue of a legal or medical nature, but an ethical one.

A complete copy of the second AFBCMR Clinical Mental Health Consultant evaluation is at Exhibit R.

APPLICANT'S REVIEW OF ADDITIONAL AIR FORCE EVALUATION:

In further support of his request, through counsel, the applicant submitted a rebuttal response, taking exception to the second AFBCMR Clinical Mental Health Consultant evaluation.  He contends the advisory writer does not properly address the evidence indicating the applicant suffered a psychiatric disorder as the result of the abuse by his spouse.  Both in-service and DVA records reflect he has PTSD.  Further, an in-service record from a 12-week treatment program, dated 2 Jun 97, states “it is uncertain as to validity of abuse towards estranged wife.  More than likely he was abused by the wife.  Possible PTSD.”  Any mention of the prolonged physical and mental abuse the applicant suffered, or the observations by the Air Force and DVA are conspicuously absent from the assessment.  The advisory writer’s assertion the applicant’s intoxication could “fully explain” his behavior is wide off the mark.  The psychiatric consequences that could flow from being the victim of an obvious injustice, which compounded the injustice of being the victim of emotional and physical abuse was not considered.  All individuals, no matter how healthy their coping strategies, have a limit.  The abuse from his spouse and his commander’s decision pushed him well beyond his.  Does the advisory writer doubt he was abused?  The advisory writer is avoiding the truth and disguising such avoidance in sterile psychiatric and medical language such as “Cluster B Traits.”  The advisory should have addressed whether the applicant exhibited some or most or all of the known psychiatric consequences of physical and emotional abuse.  Finally, the applicant asks the panel to review the evidence for and against him.  He was accused by one person who stated she accidently stepped on his testicles.  He had twelve eye witness statements indicating it was his spouse who was abusive to him, which included mentioning to beat the applicant as needed in her wedding vows.  The advisory writer was correct in stating his command gave him “no personal space and respect for privacy.”  The Air Force provoked the negative outburst, then punished him for it.  The real dilemma is how the Air Force found the applicant guilty of abuse, while taking no action against the true abuser.  This is his last chance for justice.  (Exhibit T)

THE BOARD CONCLUDES:

Pursuant to the remand order of the United States District Court of the District of Columbia, we provide the following response:

In an earlier finding, the Board determined there was insufficient evidence to warrant corrective action of the applicant’s request.  
During the Court-directed review, we took notice of all the applicant’s complete submissions in reconsidering the merits of the case, to include his rebuttal responses to the advisory opinions; however, we still do not believe the applicant has been the victim of an error or injustice.  The Board believes the applicant’s mental state of mind during the incident of disrespect was largely irrelevant to his Commander’s decision to void his suspended reduction in rank, and the Commander’s decision to vacate the suspended reduction in rank was appropriate, for the following reasons.  

On 7 Oct 96, the applicant’s commander issued him an Article 15 for unlawfully punching his wife in the eye with his fist.  The Board did not deliberate on the appropriateness of this non-judicial punishment, since review of the Article 15 was not within the narrow scope of the Court’s remand.  As punishment for his actions, the applicant was reduced to the grade of Senior Airman, suspended until 1 Apr 97, after which time it would have been remitted without further action had the applicant conducted himself in a manner commensurate with his rank of Staff Sergeant during the period of suspension.  A reduction in grade is an extremely serious action, and a suspension of a reduction puts an Air Force member on notice that during the suspension period their personal conduct and behavior must be exemplary.  On 30 Oct 96, well prior to the 1 Apr 97 completion of the applicant’s suspended reduction in rank, the applicant’s commander issued him another Article 15, this one for violating a legal order not to contact his wife.  Again, the Board did not deliberate on the appropriateness of the second non-judicial punishment, since this Article 15 was also not within the narrow scope of the Court’s remand.  However, the Board members were convinced that the applicant’s commander would have been well within his legal rights to vacate the applicant’s suspended reduction, and reduce him to the grade of Senior Airman as early as 30 Oct 96.  In fact, the Psychiatric Advisor states given the applicant’s extensive Behavioral Health issues around 1996, she is “bedazzled by the commander’s decision not to discharge him administratively on that ground alone.”  The Board concurs.  

Yet, on 4 Nov 96, still well prior to the 1 Apr 97 completion of the applicant’s suspended reduction in rank, the commander had cause to take action against the applicant again.  This action was to vacate the reduction in rank levied under the Article 15, dated 7 Oct 96, and reduce him in rank to Senior Airman.  The reasons for this action were that the applicant became “drunk and disorderly,” conduct which was of a nature to bring discredit upon the armed forces; assaulted a fellow airman by throwing a wine bottle at him; and, disrespected both his commander and a superior noncommissioned officer.  The AFBCMR Medical Consultant states that while an individual is more prone to express disrespect towards another individual when under the disinhibitory effects of alcohol, the applicant’s use of alcohol does not excuse his actions.  Further, the AFBCMR Psychiatric Advisor acknowledges that a legally intoxicated individual still carries the full responsibility for his actions, and the claim that he drank because he was so distressed is not justification for intoxication.  The Board acknowledges that in the Record of Proceedings of Vacation of Suspended Nonjudicial Punishment, the incident of disrespect appears to be the most prominently highlighted issue on which the action was based, however, the Board is convinced the applicant’s initial decision to drink alcohol, his becoming drunk and disorderly, and his assaulting a fellow Airman were, even without the incident of disrespect which followed, more than sufficient to establish that the applicant did not deserve to retain his rank as a Staff Sergeant.  While the Mental Health Advisor describes the applicant as being in medical “crises” during the incident of disrespect, and the Board members themselves may have been more lenient in their assessment of the disrespect aspect of the applicant’s behavior given his mental state of mind at the time, it was the applicant’s responsibility to comport himself in an exemplary manner while serving under a suspended bust.  His drinking to the point of becoming drunk and belligerent while serving under a suspended bust clearly warranted his commander’s decision to vacate the suspended punishment.  In summary, both the applicant’s mental state of mind during the incident of disrespect, and the act of disrespect itself, were simply the unpleasant and unfortunate result of the applicant’s extremely poor judgment reflected in his decision to imbibe heavily at a point in time when impeccable behavior was the only acceptable option.  Therefore, in the absence of evidence to the contrary, we find no basis to recommend favorable reconsideration of the applicant’s request.  

THE BOARD DETERMINES:

The applicant be notified the evidence presented did not demonstrate the existence of material error or injustice; the application was denied without a personal appearance; and the application will only be reconsidered upon the submission of newly discovered relevant evidence not considered with this application.

The following members of the Board considered AFBCMR Docket Number BC-1998-03153 in Executive Session on 21 Jul 16, under the provisions of AFI 36-2603:

	Panel Chair
	Member
	Member

The following documentary evidence was considered:

	Exhibit F.  Original ROP, dated 30 Dec 99.
	Exhibit I.  Addendum to ROP, undated. 
	Exhibit K.  Second Addendum ROP, undated.
Exhibit L.  Court Order of Judgment (REMAND), dated 14 Aug 15, w/atch.
Exhibit M.  Memorandum, AFBCMR Medical Consultant, dated 15 Dec 15. 
	Exhibit N.  Letter, AFBCMR, dated 20 Jan 16.
Exhibit O.  Memorandum, BCMR Clinical Mental Health Consultant, dated 16 Dec 15.  
	Exhibit P.  Letter, AFBCMR, dated 8 Jan 16. 
	Exhibit Q.  Letter, Applicant, dated 28 Mar 16, w/atchs. 
Exhibit R.  Memorandum, BCMR Clinical Mental Health Consultant, dated 16 May 16.  
Exhibit S.  Letter, AFBCMR, dated 23 May 16.
Exhibit T.  Letter, Applicant, dated 15 Jun 16. 

Pursuant to paragraph 1 of AFI 36-2603 (Title 32 Code of Federal Regulations, Part 865.1), it is certified that a quorum was present at the Board's review and deliberations, and the foregoing is a true and complete record of the Board's proceedings in the above entitled matter.
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