RECORD OF PROCEEDINGS
         AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS

IN THE MATTER OF:	DOCKET NUMBER:  BC-2002-01786
		INDEX CODES:  108.00, 131.09

		COUNSEL:  NONE

		HEARING DESIRED:  NO

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APPLICANT REQUESTS THAT:

His records be corrected to reflect that he was medically retired in the grade of technical sergeant, the highest grade he held in the Air Force, with a disability rating of 75 percent.

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APPLICANT CONTENDS THAT:

The medical problems he suffered had a very serious impact on him and compromised his ability to think and function normally.

His demotions were done improperly and were legally insufficient.

In support of his appeal, the applicant provided several personal statements, extracts from his military personnel records, medical documentation, and other documents associated with the matter under review.

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

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STATEMENT OF FACTS:

Applicant enlisted in the Regular Air Force on 8 Mar 74 for a period of four years in the grade of airman.  Prior to the matters under review, he was progressively promoted to the grade of technical sergeant.

Applicant’s Airman/Enlisted Performance Report (APR/EPR) profile follows:

	PERIOD ENDING	EVALUATION

	 8 Nov 74		7
	 8 Nov 75		8
	13 Apr 76		8
	13 Apr 77		8
	28 Oct 77		6
	 9 Mar 78		8
	 9 Mar 79		7
	14 Dec 79		8
	14 Dec 80		8
	 1 Aug 81		8
	23 Jul 82		7
	23 Jul 83		8
	23 Jul 84		8
	23 Jul 85		8
	25 Jan 86		8
	25 Jan 87		9
	26 Oct 87		8
	26 Oct 88		9
	26 Oct 89		8
	 1 Jun 90		4 (EPR)
	 8 Dec 90		3
	 8 Dec 91		2
	 8 Sep 92		1

On 12 Dec 74, the applicant received nonjudicial punishment under Article 15 for failure to go at the time prescribed to his appointed place of duty on 5 Dec 74.  He was reduced to the grade of airman, which was suspended until 11 Apr 75.

On 31 Mar 75, he received an Article 15 for being absent without authority from 9 Mar 75 until 11 Mar 75.  He was ordered to perform 14 days of extra duty.

On 22 Sep 77, he received an Article 15 for failure to go at the time prescribed to his appointed place of duty on 6 Sep 77.  He was reduced to the grade of airman first class, which was suspended.

On 29 Aug 83, he received an Article 15 for failure to go at the time prescribed to his appointed place of duty on 10 Aug 83.  He was ordered to forfeit $100.00 of his pay for one month and reduced to the grade of sergeant, which was suspended until 15 Feb 83.

On 13 Mar 92, he received an Article 15 for failure to go at the time prescribed to his appointed place of duty and making a false official statement on 3 Mar 92.  He was reduced to the grade of staff sergeant, which was suspended until 13 Sep 92, and ordered to perform 45 days of extra duty.

On 19 May 92, the suspended reduction to the grade of staff sergeant was vacated because the applicant, on divers occasions, failed to go at the time prescribed to his appointed place of duty between 12 Apr 92 and 9 May 92; and, because he unlawfully altered a public record on 19 Apr 92.  He was reduced to the grade of staff sergeant with a date of rank (DOR) of 13 Mar 92.

On 1 Sep 92, the applicant received an Article 15 for failure to go at the time prescribed to his appointed place of duty and being derelict in the performance of his duties in that he failed to open the dormitory office on 18 Aug 92.  He was reduced to the grade of senior airman and restricted to the base for 60 days.

On 30 Jul 93, he received an Article 15 for failure to go at the time prescribed to his appointed place of duty on 13 Jul 93 and 22 Jul 93.  He was reduced to the grade of airman first class, which was suspended until 29 Jan 94, restricted to the base for 14 days, and ordered to perform 14 days of extra duty.

On 1 Dec 93, the suspended reduction to the grade of airman first class was vacated because the applicant failed to go at the time prescribed to his appointed place of duty on 16 Nov 93.  He was reduced to the grade of airman first class with a DOR of 30 Jul 93.

On 17 Nov 93, the Secretary of the Air Force found that the applicant served satisfactorily in the higher grade of technical sergeant within the meaning of Section 8964, Title 10, United States Code and directed his advancement to that grade on the Retired List effective the date (10 Mar 04) of completion of all required service (30 years as of 9 Mar 04).

On 31 Mar 94, the applicant was relieved from active duty and retired for length of service, effective 1 Apr 94, in the grade of airman first class.  He was credited with 20 years and 21 days of active duty service.

On 19 Sep 95, the Board considered and denied an application pertaining to the applicant, in which he requested that his records be corrected to reflect retirement in the highest grade held (TSgt); and, that the present projected advancement date of 10 Mar 04 be reduced to the present (Exhibit C).

An Aug 98 DVA Rating Decision granted the applicant a 20 percent disability rating for degenerative disc disease, and 10 percent for plantar keratosis.  The decision rated his history of chronic anxiety and depression at zero percent, his achalasia status post-Heller esophagomyotomy with hiatal hernia at zero percent, and his history of bilateral inguinal hernia repair at zero percent.

The remaining relevant facts pertaining to this application are contained in the letters prepared by the appropriate offices of the Air Force.

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AIR FORCE EVALUATION:

The Medical Consultant recommended denial indicating that there was no evidence that any of the applicant's medical conditions were unfitting for continued military service, even during the final 12 months of service (the period of presumption of fitness), and should have been evaluated through the Air Force Disability Evaluation System (DES).  In his view, the action and disposition in this case were proper and equitable reflecting compliance with Air Force directives that implement the law.  The Medical Consultant was of the opinion that no change in the records was warranted based on medical factors.

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

AFPC/DPPD recommended denial indicating that the purpose of the military DES is to maintain a fit and vital force by separating or retiring members who are unable to perform the duties of their office, grade, rank, or rating.  Those members who are separated or retired by reason of a physical disability may be eligible for certain disability compensation.  The decision to process a member through the military DES is determined by a Medical Evaluation Board (MEB) when he or she is determined medically disqualified for military service.  The decision to conduct an MEB is made by the medical treatment facility providing health care to the member.

Although the veteran’s service records reflected that he was treated for various medical conditions throughout his military career, none of these conditions were considered serious or grave enough to warrant the initiation of an MEB.  The above information was confirmed in his retirement physical conducted on 24 Nov 93, which corroborated he was capable of overcoming the presumption of fitness during his last year of active service, and that he was reasonably capable of performing his military duties right up until the time of approved retirement.  In other words, his military career was not curtailed as a result of any medical condition.

AFPC/DPPD stated that veterans who acquire service-connected medical conditions while on active duty and who are subsequently discharged or retired are eligible for treatment and compensation by the DVA.  It is essential that individuals understand the difference between Titles 10 and 38, United States Code (USC).  The Air Force and DVA disability systems operate under two separate laws.  Under the Air Force system (Title 10, USC), Physical Evaluation Boards (PEB) must determine if a medical condition renders a member unfit for duty.  The fact that a person may have a medical condition does not automatically mean that the condition is unfitting for continued military service.  To be unfitting, the medical condition must be such that it by itself precludes the member from fulfilling the purpose for which he or she is employed.  If the PEB renders a finding of unfit, the law provides appropriate compensation due to the premature termination of the member’s career.  Air Force disability boards, under the provisions of military disability laws and policy, can only rate unfitting medical conditions based upon the individual’s medical status at the time of his or her evaluation; in essence, a snapshot of their condition at that time.  The DVA, however, is chartered to provide continual medical care to veterans once they depart active duty.  Under Title 38, USC, the DVA may increase or decrease a member’s service-connected disability rating based on the seriousness of the medical condition throughout his or her life span.  Because of the different restrictions imposed by the two laws, sometimes the Services and DVA disability ratings may not always agree.

Having completed their examination of the files, AFPC/DPPD indicated that they could find no reasons why the applicant's records should be corrected to reflect his retired grade as a technical sergeant.  Documentation in his military records clearly reflected that the punitive actions leading to his demotions were well within the purview of the commander’s authority, in addition to being found legally sufficient.  The medical aspects of this case were fully explained by the Medical Consultant and they agreed with his advisory.

A complete copy of the AFPC/DPPD evaluation is at Exhibit D.

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APPLICANT'S REVIEW OF AIR FORCE EVALUATION:

Copies of the Air Force evaluations were forwarded to applicant on 25 Oct 02 for review and response.  As of this date, no response has been received by this office (Exhibit E).

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ADDITIONAL AIR FORCE EVALUATION:

AFLSA/JAJM recommended denial indicating that the applicant’s argument that his medical conditions should result in overcoming the circumstances which led to the imposition of Article 15 punishments was without merit.

According to AFLSA/JAJM, unless it can be shown that the commander’s findings regarding the Article 15's were either arbitrary or capricious, they should not be disturbed.  No such evidence exists to indicate that the commander acted arbitrarily.  In fact, the applicant was given an opportunity to overcome his initial misconduct when the commander suspended his punishment following the first nonjudicial punishment.  The applicant chose to engage in the same misconduct soon thereafter, knowing full well the consequences of his actions.

Additionally, AFLSA/JAJM stated that unless it can be shown that the medical evaluations that were conducted were inaccurate and/or incomplete, they should not be disturbed and they defer to HQ AFPC/DPPD regarding these issues.  When evidence of an error or injustice is missing, it is clear that the BCMR process is not intended to simply second-guess the appropriateness of the judgments of field commanders.  In the case of nonjudicial punishment, Congress (and the Secretary via AFI 51-202) has given the commander the authority to determine the appropriate forum to address misconduct.  Once a commander determines nonjudicial punishment is the appropriate forum, the accused can reject the nonjudicial punishment and demand trial by court-martial.  If the accused accepts and later appeals, the appellate authority can set aside the nonjudicial punishment.  So long as they are lawfully acting within the scope of authority granted them by law, the judgment of the commander and appellate authority should not be disturbed just because others might disagree.  Commanders “on the scene” have first-hand access to facts and a unique appreciation for the needs of morale and discipline in their command that even the best intentioned higher headquarters cannot match.  In this case, the applicant accepted the nonjudicial punishment forum and did not appeal.  He argues now that his medical condition was such that at the time of the imposition of Article 15 punishment, he was not fit for duty to begin with because of alleged serious medical issues.  Subsequent medical evaluations, however, do not support this contention.

In AFLSA/JAJM's view, a set aside should only be granted when the evidence demonstrates an error or a clear injustice.  The basis of the applicant’s request for relief was insufficient to warrant setting aside the Article 15 actions, was insufficient for granting a request for medical disability retirement, and did not demonstrate an equitable basis for relief.  The applicant has provided no evidence of a clear error or injustice related to the nonjudicial punishment actions or the denial of his claim for medical disability retirement. 

A complete copy of the AFLSA/JAJM's evaluation is at Exhibit G.

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APPLICANT'S REVIEW OF ADDITIONAL AIR FORCE EVALUATION:

A copy of the Air Force evaluation was forwarded to applicant on 21 Mar 03 for review and response.  As of this date, no response has been received by this office (Exhibit H).

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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 error or injustice.  We took notice of the applicant's complete submission in judging the merits of the case; however, we agree with the opinions and recommendations of the Air Force offices of primary responsibility (OPRs) and adopt their rationale as the basis for our conclusion that the applicant has not been the victim of an error or injustice.  The evidence of record indicates that the applicant committed several offenses which ultimately resulted in his reduction in grade from technical sergeant to airman first class.  No evidence has been presented which would lead us to believe that the information used as a basis for the applicant's demotions were erroneous, or, that at time of his separation from active duty, he was unfit to perform the duties of his rank and office, within the meaning of the law.  In view of the foregoing, and in the absence of sufficient evidence to the contrary, we find no compelling basis 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 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 AFBCMR Docket Number BC-2002-01786 in Executive Session on 13 May 03, under the provisions of AFI 36-2603:

	Panel Chair
	Member
	Member

The following documentary evidence was considered:

    Exhibit A.  DD Form 149, dated 4 Jun 02, w/atchs.
    Exhibit B.  Applicant's Master Personnel Records.
    Exhibit C.  Record of Proceedings, dated 19 Sep 95, w/atchs.
    Exhibit D.  Letter, Medical Consultant, dated 23 Sep 02.
    Exhibit E.  Letter, AFPC/DPPD, dated 21 Oct 02.
    Exhibit F.  Letter, SAF/MRBR, dated 25 Oct 02.
    Exhibit G.  Letter, AFLSA/JAJM, dated 4 Mar 03.
    Exhibit H.  Letter, AFBCMR, dated 21 Mar 03.

                                   
                                   Panel Chair