RECORD OF PROCEEDINGS
         AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS

IN THE MATTER OF:	DOCKET NUMBER:  01-01168
		INDEX CODE 110.00  126.04

		COUNSEL:  NONE

		HEARING DESIRED:  NO

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APPLICANT REQUESTS THAT:

His general discharge be upgraded to honorable.

His enlisted grade of E-4 be restored.

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APPLICANT CONTENDS THAT:

In Jun 99, he received a diagnosis of bipolar disorder by a civilian psychiatrist.  While in the military he was diagnosed by one psychiatrist as alcohol dependent and was under his care.  He had a relapse and received nonjudicial punishment under Article 15, which eventually led to his discharge.  Before he was discharged, he had an episode while at Langley AFB and was diagnosed with manic depression and transferred to Portsmouth Naval Hospital where he was diagnosed as manic depressive.  He was sent back to Eglin AFB for further treatment; however, he was denied treatment due to his pending discharge in a couple of days.

In support of his appeal, the applicant provided copies of medical documentation, including a statement from a physician, his separation document, and his enlisted performance reports (OPRs).

Applicant’s complete submission is at Exhibit A.

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STATEMENT OF FACTS:

The relevant facts pertaining to this application are contained in the letters prepared by the appropriate offices of the Air 
Force.  Accordingly, there is no need to recite these facts in this Record of Proceedings.

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AIR FORCE EVALUATION:

The Chief Medical Consultant, AFBCMR, reviewed this application and recommended denial.  The Medical Consultant noted that the applicant was treated for alcohol dependence with a reported heavy intake of up to a half a gallon of liquor at a time and was counseled and treated with anti-alcohol medications.  While on apparent terminal leave, he was hospitalized at Norfolk Naval Hospital with a substance-induced mood disorder which, on admission was tentatively felt to be bipolar disorder.  This was the working diagnosis on admission only, and the discharge diagnosis was not in any way felt to represent a psychosis or disorder related to anything other than substance abuse.  He was transferred back to his duty station and hospitalized overnight at Eglin AFB where his discharge diagnoses were:  Agitated episode of undetermined etiology, drug-induced acute brain syndrome, alcohol dependence currently in remission, and post-spinal tap headache.  He was not felt to meet criteria of bipolar disorder or any other psychiatric condition that would warrant medical hold for evaluation prior to administrative discharge.  The Medical Consultant also noted that a previous request for upgrade of discharge was denied by the Air Force Discharge Review Board (AFDRB), on 7 Nov 97, in response to the applicant’s request that included no issues upon which to base such an upgrade.  In Jun 99, almost three years following his discharge, the applicant was diagnosed with a depressive disorder and alcohol abuse, and remains under treatment for these problems. Although the applicant stated he is being treated for bipolar disorder, he did not provide confirmation of this diagnosis in the package available for review at this time.

According to the Medical Consultant, the applicant clearly had an alcohol dependence and abuse history that led to nonjudicial punishment and general discharge actions.  Records did not support his contention that he was diagnosed with bipolar disorder while in the Air Force nor in the intervening four and half years since his discharge.  There was insufficient evidence to utilize in a favorable consideration of his present request, and upgrade of discharge and/or reinstatement of his highest grade held (senior airman) are not recommended.  

In the opinion of the Medical Consultant, no change in the records is warranted.

A complete copy of the Medical Consultant’s evaluation is at Exhibit C.

The Military Justice Division, AFLSA/JAJM, reviewed this application and recommended denial.  JAJM noted that the applicant was discharged for misconduct on 12 Nov 96 for a number of incidents that appeared to have been related to his alcohol dependence.  He received two nonjudicial punishments for three actions that formed part of the basis of the applicant’s discharge.  He was punished under Article 15, Uniform Code of Military Justice (UCMJ), on 14 Jun 96, for being incapacitated for the proper performance of his duties due to previous overindulgence of alcohol and making a false official statement, a violation of Articles 134 and 107, UCMJ.  His punishment consisted of a reduction to airman first class and 30 days extra duty.  The second action was on 27 Sep 96 for failing to go to his place of duty on 16 Sep 96 and for being incapacitated for the proper performance of his duties due to previous overindulgence of alcohol, in violation of Articles 86 and 134, UCMJ.  His punishment consisted of a reduction to the rank of airman basic.

JAJM further noted that the reasons for the applicant's discharge were five incidents of misconduct, albeit apparently related to the applicant's alcohol dependency. He received two nonjudicial punishments for three of the incidents.

JAJM indicated that nonjudicial punishment is permitted by Article 15, UCMJ (Section 815, Title 10, United States Code), and governed by the Manual for Courts-Martial and Air Force Instruction 51-202.  This procedure permits commanders to dispose of certain offenses without trial by court-martial unless the service member objects.  Service members first must be notified by their commanders of the nature of the charged offense, the evidence supporting the offense, and of the commander’s intent to impose nonjudicial punishment.  The service member may then consult with a defense counsel to determine whether to accept nonjudicial punishment proceedings or demand trial by court-martial.  Accepting the proceedings is simply a choice of forum; it is not an admission of guilt.

According to JAJM, a member accepting nonjudicial punishment proceedings may make a personal presentation to the commander or elect to submit written matters or both.  The member may have a spokesman at the hearing, may request that witnesses appear and testify, and may present evidence.  The commander must consider any information offered during that hearing and must be convinced by reliable evidence that the member committed the offense before imposing punishment.  Members who wish to contest their commander’s determination or the severity of the punishment imposed may appeal to the next higher commander.  The appeal authority may set aside the punishment, decrease its severity, or deny the appeal.

JAJM noted that, on both occasions, the applicant consulted counsel, accepted the nonjudicial punishment, declined to make a personal presentation and elected to submit written matters.  In both instances, after the commander concluded that the applicant had committed the offenses and imposed punishment, he did not appeal.

According to JAJM, both Article 15’s were supported by the facts and are legally sufficient.  The applicant has provided no evidence of a clear error or injustice related to the nonjudicial punishment proceedings.

JAJM indicated that they defer to Personnel to comment on the appropriateness of the discharge but the discharge paperwork and supporting evidence are legally sufficient to support the discharge.  The medical review concluded there was no medical basis for upgrade of the discharge.

A complete copy of the AFLSA/JAJM evaluation is at Exhibit D.

The Separations Branch, AFPC/DPPRS, reviewed this application and recommended denial.  DPPRS noted that, on 18 Oct 96, the commander notified the applicant he was being discharged for misconduct, more specifically, for a pattern of misconduct.  On 12 Mar 96, the applicant failed to follow instructions by drinking while in alcohol rehabilitation counseling, for which he received a letter of counseling.  On 28 May 96, as a result of previous wrongful overindulgence of intoxicating liquor, he was incapacitated for the proper performance of his duties.  He received an Article 15, reduction to airman first class and 30 days extra duty.  On 28 May 96, the applicant, with the intent to deceive, made an official statement that he was going to sick call.  This statement was false and the applicant did not report to sick call.  On 16 Sep 96, the applicant failed to go at the time prescribed to his appointed place of duty.  He received an Article 15 with a reduction to airman basic.  On 16 Sep 96, as a result of previous wrongful overindulgence in intoxicating liquor, he was incapacitated for the proper performance of his duties.

Based upon the documentation in the file, DPPRS indicated that they believe the discharge was consistent with the procedural and substantive requirements of the discharge regulation.  Additionally, the discharge was within the sound discretion of the discharge authority.  

In DPPRS’ view, the applicant did not submit any new evidence or identify any errors or injustices that occurred in the discharge processing. Additionally, he provided no facts warranting an upgrade of his discharge.

A complete copy of the AFPC/DPPRS evaluation is at Exhibit E.

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APPLICANT'S REVIEW OF AIR FORCE EVALUATION:

Applicant reviewed the advisory opinions and furnished a response indicating that if the Board does not see enough evidence to upgrade his rank to E-4, he does understand.  The incidents were caused by him because he did not know what was going on and did not look for answers at the time.  Instead, he tried to fix what was wrong.  As for as upgrading his discharge to general, he believes that he has given more than six and half years of great service and feels that he does have some circumstances that can be seen as a reason to upgrade his discharge.

Applicant’s complete submission is at Exhibit G.

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THE BOARD CONCLUDES THAT:

1.  The applicant has exhausted all remedies provided by existing law or regulations.

2.  The application was not timely filed; however, it is in the interest of justice to excuse the failure to timely file.

3.  Insufficient relevant evidence has been presented to demonstrate the existence of probable error or injustice.  The applicant's complete submission was thoroughly reviewed and his contentions were duly noted.  However, we do not find the applicant’s assertions or the documentation presented sufficiently persuasive to override the rationale provided by the Air Force offices of primary responsibility (OPR).  The evidence of record reflects that the applicant was involuntarily discharged for misconduct.  No evidence has been presented which would lead us to believe that his administrative discharge was improper or contrary to the governing directive under which it was effected.  Therefore, in the absence of evidence that the applicant’s substantial rights were violated, that the information contained in the discharge case file was erroneous, or that his superiors abused their discretionary authority, we adopt the Air Force rationale and conclude that no basis exists to recommend granting the relief sought in this application.

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THE BOARD DETERMINES THAT:

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

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The following members of the Board considered this application in Executive Session on 11 Oct 01, under the provisions of AFI 36-2603:

The following documentary evidence was considered:

    Exhibit A.  DD Form 149, dated 19 Apr 01, w/atchs.
    Exhibit B.  Applicant's Master Personnel Records.
    Exhibit C.  Letter, Medical Consultant, dated 14 May 01.
    Exhibit D.  Letter, AFLSA/JAJM, dated 24 Jul 01.
    Exhibit E.  Letter, AFPC/DPPRS, dated 17 Aug 01.
    Exhibit F.  Letter, SAF/MIBR, dated 24 Aug 01.
    Exhibit G.  Letter, applicant, dated 25 Sep 01.

                                   
                                   Panel Chair