RECORD OF PROCEEDINGS
AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS

IN THE MATTER OF:	DOCKET NUMBERS:  02-01660
		INDEX CODE 129.04
	 	COUNSEL:  None

	 	HEARING DESIRED:  Yes

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APPLICANT REQUESTS THAT:

He be allowed to retire in the highest grade held, i.e., technical sergeant (TSgt).

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APPLICANT CONTENDS THAT:

He used marijuana because of his increasing back pain. The hospital failed him, never x-rayed him or performed a magnetic resonance imaging (MRI) scan.  All they did was give him Motrin. Afterwards, they found six blown discs, degenerative joint disease, and spurs in both shoulders along with nerve impingement. According to AFI 36-3203, he could have submitted documentation substantiating satisfactory service as a TSgt. He was never given that opportunity. He questions what the decision was based on, given his only two Enlisted Performance Reports (EPRs) as a TSgt reflected exceptional performance. He asks if the Secretary of the Air Force (SAF) or his designees even looked at his EPRs.

The applicant’s complete submission, with attachments, is at Exhibit A.

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STATEMENT OF FACTS:

The applicant enlisted in the Regular Air Force on 8 Jul 82 and was ultimately promoted to the grade of TSgt with a date of rank (DOR) of 1 Sep 98. 

His performance reports reflect the highest overall ratings (9s under the “old” system and 5s under the “new” system) with the exception of an EPR closing 7 Feb 88, which had an overall rating of 8, and a referral EPR closing 4 Oct 01, which had an overall rating of 2. The 7 Feb 88 EPR made vague references to actions which apparently resulted in an Article 15 being imposed on the applicant on 11 Sep 87 for wrongfully using hashish around 30 Jun 87.  The applicant was a sergeant at the time and stationed in England. Punishment was forfeiture of $490.00 pay per month for two months and a reprimand.  The applicant did not make a written presentation or appeal the punishment. The 4 Oct 01 referral EPR is discussed below.

During the period in question, the applicant was assigned to the 16th Services Squadron at Hurlburt Field, FL, as a readiness specialist.

Medical records indicate in 1997 the applicant fell four feet from a loading dock onto his lower back. He was in full field armor with heavy gear at the time. Low back pain worsened and oral medication and physical therapy were not beneficial. Three months after the initial injury, he suffered worsening discomfort while moving tents and felt a pop in his left shoulder coming up from his lower back. He also had secondary pain in the left side of his neck as well as shoulder discomfort which had been going on intermittently since 1981. An April 1999 exam indicated low back pain achieved good results with therapy.  In Dec 00 the applicant complained of several months of worsening low back pain. X-ray results showed only mild degenerative change of the intervertebral disc space between the first and second lumbar vertebrae (L1-2). Less than a month later, he underwent an MRI scan of his lumbar spine which revealed moderate degenerative disc disease and herniations of the intervertebral disc at the L2-3 level. The MRI also noted early degenerative changes of the facet joints at the L5-S1 level. In Jan 01, he complained of continued pain radiating to the left buttock and posterior thigh. The applicant received some transient relief with epidural steroid injections. In Apr 01, he was evaluated by a civilian specialist who noted the MRI results revealed prominent disc bulge or broad-based protrusion on the right at L2-3 without nerve root impingement and a small shallow para-median disc protrusion at L1-2. The specialist diagnosed back pain as traumatic lumbar facet syndrome and mild lumbar degenerative disk disease and recommended diagnostic facet joint injections. The record is not clear whether these injections were performed. Further medical details are provided in the AFBCMR Medical Consultant’s evaluation at Exhibit C.

On 17 Jan 01, the Hurlburt Air Force Office of Special Investigations (AFOSI) interviewed the applicant about allegations that he had used marijuana. He consented to provide a urine sample for testing and, on 22 Jan 01, his urine tested positive for marijuana usage. On 3 Mar 01, the applicant pled guilty and was convicted by special court-martial (SCM) for wrongful use of marijuana between 17 Dec 00 and 17 Jan 01. Sentence was 30 days confinement, reduction from TSgt to senior airman, 60 days hard labor without confinement and reprimand. The sentence was adjudged on 3 May 01; however, that portion of the punishment pertaining to hard labor was not ordered executed.

On 11 Jun 01, the commander notified the applicant he was being recommended for a general discharge based on the SCM conviction. After consulting counsel, the applicant requested a hearing before an administrative discharge board (ADB) and a lengthy service consideration by the SAF.

On 28-29 Aug 01, the ADB convened and found the following: The applicant did use the marijuana for which he was convicted; the abuse was a departure of his usual and customary behavior and did not involve recurring incidents other than experimentation; the abuse did not involve drug distribution; he did not desire or intend to engage in drug abuse in the future; and his drug abuse was not likely to recur. The ADB recommended the applicant be retained. Legal review on 18 Sep 01 found the board’s findings and recommendations supportable. 

On 2 Nov 01, the applicant requested retirement effectively 31 Jul 02.

On 26 Nov 01, the EPR closing 4 Oct 01 was referred to the applicant. His on/off duty conduct was marked unacceptable and he received an overall rating of 2 (not recommended for promotion at this time). The applicant did not provide comments.

On 20 Dec 01, the SAF Personnel Council (SAFPC) determined that the applicant held the grade of TSgt for 33 months but did not serve satisfactorily in that grade. They did find he served satisfactorily in the grade of staff sergeant and directed his advancement to that grade on the retired list effective the date of completion of all required service (active and retired time total 30 years).

On 31 Jul 02, the applicant was retired in the grade of senior airman with 20 years and 2 days of active service.  The applicant will be advanced to the grade of staff sergeant in 2012.

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AIR FORCE EVALUATION:

The AFBCMR Medical Consultant notes the medical records reflect the applicant sought care for recurrent shoulder pain in Dec 99 but there are no medical record entries evident in the months leading up to the Dec 01 timeframe (time of marijuana use). The medical records corroborate the fact that he was suffering from increased low back pain during the time he used marijuana and he was being treated and evaluated for his pain.  Contrary to his allegations, the records show he did have x-rays and an MRI of his back was performed in a timely fashion. The MRI revealed degenerative disc disease but did not correlate with his symptoms. The 26 Jan 01 medical record entry does not give any indication that inadequate pain control by Motrin was a concern of the applicant or that he requested and was denied anything stronger. There is no medical evidence that his shoulder condition was bothersome to him during the time frame of illegal marijuana abuse. The Consultant finds no evidence in the medical record that the applicant’s back pain was ignored or that he was denied stronger analgesic medication to the extent that he had no recourse other than to resort to illegal use of marijuana. Denial is recommended.

A complete copy of the evaluation is at Exhibit C.

HQ AFPC/DPPD notes a retirement physical exam on 23 Apr 02 and the applicant’s last EPR clearly show he was capable of overcoming the presumption of fitness during his last year of active service. His military career was not curtailed as a result of any medical condition. They find no reason why the applicant’s records should be changed to reflect a retired grade of TSgt.  The punitive actions leading to his demotion were well within the jurisdiction of the court-martial’s authority. Denial is recommended.

A complete copy of the evaluation is at Exhibit D.

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APPLICANT'S REVIEW OF AIR FORCE EVALUATION:

Complete copies of the Air Force evaluations were forwarded to the applicant on 1 Nov 02 for review and comment within 30 days.  As of this date, this office has received no response. 

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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 timely filed.

3.	Insufficient relevant evidence has been presented to demonstrate the existence of error or injustice to warrant retiring the applicant in the grade of TSgt. The applicant asserts he used marijuana in 1991 to assuage the pain from his alleged insufficiently treated medical condition. However, we note the applicant apparently received an Article 15 for wrongful use of hashish in 1987, at least 10 years before he complained of back pain. Contrary to the applicant’s claims, his medical records reveal that x-rays and an MRI were performed on his back in a timely fashion. He has not demonstrated that his pain was inadequately controlled or that he requested or was denied any stronger medications for pain. Further, at the time of the applicant’s second drug use, the available evidence does not support his contention that his condition was so unmanaged he had no recourse but to resort to the illegal use of marijuana for pain control. We also note that instead of being discharged for his misconduct, the ADB’s retention recommendation allowed the applicant to serve until eligible for retirement. The SAFPC considered his entire service performance as well as his time in grade as a TSgt before determining the highest grade in which he served satisfactorily was staff sergeant. As a result, he will be advanced to that grade in 2012. The applicant has not provided evidence of an error or injustice entitling him to any added relief than that already afforded him. We therefore find that his appeal should be denied.  

4.	The applicant’s case is adequately documented and it has not been shown that a personal appearance with or without counsel will materially add to our understanding of the issue(s) involved. Therefore, the request for a hearing is not favorably considered.
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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 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 10 December 2002, under the provisions of AFI 36-2603:

	            Panel Chair
	            Member
	            Member

The following documentary evidence relating to AFBCMR Docket No. 02-01660 was considered:

   Exhibit A. DD Form 149, dated 9 May 02, w/atchs.
   Exhibit B. Applicant's Master Personnel Records.
   Exhibit C. Letter, AFBCMR Medical Consultant, dated 15 Sep 02.
   Exhibit D. Letter, HQ AFPC/DPPD, dated 22 Oct 02.
   Exhibit E. Letter, SAF/MRBR, dated 1 Nov 02.

                                   
                                   Acting Panel Chair