RECORD OF PROCEEDINGS
AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS

IN THE MATTER OF:	DOCKET NUMBER:  02-02361
		INDEX CODE:  126.04

		COUNSEL:  DAV

		HEARING DESIRED:  NO

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APPLICANT REQUESTS THAT:

The punishment imposed upon him under Article 15, Uniform Code of Military Justice (UCMJ), 18 September 1974 and 10 September 1975 be set aside and that he be adequately compensated for lost wages, pain and suffering, and lost benefits.
 
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APPLICANT CONTENDS THAT:

Regarding the Article 15 he received on 13 September 1974, he was denied due process and his initials were forged on the document.  Regarding the second Article 15 he received on 9 September 1975, the social security number on the document does not belong to him.  He claims that he was ordered to sign the form while suffering from Post Traumatic Stress Disorder (PTSD).  He states that neither his representative nor the Air Force looked at his records properly in 1981.  These discriminatory actions should not go unchecked.

In support of the applicant’s claim, he provided a copy of AF Form 1168, Statement of Military Suspect, dated 13 September 1974, AF Form 3070, dated 9 September 1975 and other documentation.

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

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STATEMENT OF FACTS:

On 21 August 1974, the applicant enlisted in the Regular Air Force in the grade of airman basic for a period of four (4) years.

On 13 September 1974, the applicant was notified of his commander’s intent to impose nonjudicial punishment upon him for the following:  Having received a lawful order from your first lieutenant, your superior commissioned officer, to sign a statement acknowledging understanding of the motivation briefing did, at Lackland Air Force Base, Texas, on or about 11 September 1974, willfully disobey the same in violation of the Uniform Code of Military Justice, Article 90.

After consulting with counsel, applicant waived his right to a trial by court-martial, did not submit a written presentation in his behalf; however, he requested to make an oral presentation and that it be public.

On 18 September 1974, he was found guilty by his commander who imposed the following punishment: 30 days correctional custody.

On 9 September 1975, the applicant was notified of his commander’s intent to impose nonjudicial punishment upon him for the following: You did, at K.I. Sawyer Air Force Base, Michigan:

		a.  On or about 2 September 1975, without authority, fail to go at the time prescribed to your appointed place of duty, to wit:  Building 502, FTD Building.

		b.  On or about 3 September 1975, without authority, fail to go at the time prescribed to your appointed place of duty, to wit:  Building 502, FTD Building.

		c.  On or about 4 September 1975, without authority, fail to go at the time prescribed to your appointed place of duty, to wit:  Building 502, FTD Building.

After consulting with counsel, applicant waived his right to a trial by court-martial, did not request a personal appearance and did not submit a written presentation.

On 10 September 1975, he was found guilty by his commander who imposed the following punishment: reduction to the grade of airman basic, with a new date of rank of 10 September 1975.

The Airman Performance Report rendered for the period 21 August 1974 through 21 August 1975 reflected a rating of “7”.

On 16 September 1975, applicant was notified of his commander's intent to initiate discharge action against him for unsuitability.  The commander indicated that the reason for the recommended action is his apathetic and defective attitude as evidenced by his misconduct.

The commander advised applicant of his right to consult legal counsel, submit statements in his own behalf, or waive his rights after consulting with counsel.

On 3 October 1975, after consulting with counsel, the applicant waived his right to submit statements in his own behalf.

On 9 October 1975, the Assistant Staff Judge Advocate recommended the applicant be discharged under the provisions of AFM 39-12, paragraph 2-4c, without probation and rehabilitation, and that he be issued a general discharge.

On 22 October 1975, the discharge authority approved applicant’s discharge.

On 31 October 1975, the applicant was discharged in the grade of airman basic.  He received a general (under honorable conditions) discharge under the provisions of AFM 39-12 (Unsuitability – Apathy/Defective Attitude).  He served 1 year, 2 months and 11 days of total active military service.

On 8 May 1981, The Air Force Discharge Review Board (AFDRB) considered and denied the applicant’s request to upgrade his discharge to honorable and to change his Reenlistment Eligibility (RE) code.  They concluded that the discharge was consistent with the procedural and substantive requirements of the discharge regulation and was within the sound discretion of the discharge authority and that the applicant was provided full administrative due process.  The Board concluded that the discharge should not be changed.  The Board could find no matters of record or any information submitted by the applicant to warrant a recharacterization of discharge.  The applicant’s marginal performance record and substantially documented infractions of regulations clearly indicate the character of service.  The case was transferred to the Air Force Board for Correction of Military Records (AFBCMR) and on 30 August 1982, the applicant was notified that his case was denied.

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AIR FORCE EVALUATION:

AFLSA/JAJM recommended denial.  They indicated that the applicant contends that he was denied procedural and substantive due process.  He claims he was suffering from the side effects of prescription medications throughout the periods involved (but does not describe how that might have impacted his abilities or actions).  With respect to the 1974 Article 15 action, he claims that his initials were “forged” on the entry waiving his right to appeal (although, he does not contend that any of the ten other items initialed on that document or his subscriptions on each page are forgeries).  With respect to the 1975 Article 15 action, he claims that the handwritten entries attributed to him are in two different handwritings (but he does not specify which, if any, he believes is authentic).  He also (accurately) points out that his social security number (correctly entered on page 1 of the Article 15 document, AF Form 3070) is incorrectly entered on the second page.  He (mistakenly) contends that associated paperwork indicates his race and rank incorrectly.  Finally, he contends that racial prejudice, in some unspecified way, was a factor in each Article 15 action.  The applicant offers no explanation or other evidence in support of his naked claim of prejudice.

The applicant presented some, if not all, of the same arguments in his prior unsuccessful applications for relief.  His claim of racial prejudice was rejected as unsubstantiated and the actions taken in his case were determined to be equitable and not unduly harsh.  The applicant, nevertheless, requests that the Article 15 actions involved be set aside.

Ordinarily, applicants must file an application within three years after the error or injustice was discovered, or with due diligence, should have been discovered.  An application not timely filed may be denied on that basis, although the untimely filing may be excused in the interest of justice.  The nonjudicial punishment actions were completed in 1974 and 1975, and the applicant was discharged on or about 31 October 1975.  Thus his application, filed on 18 July 2002, is well outside the three-year statute of limitations.  As an explanation for the delay, the applicant notes:  “This Veteran suffers from PTSD caused by racial discrimination while in the USAF and should be made whole.”  The only evidence of PTSD in the application is an Axis I diagnosis of “alcohol, cocaine and marijuana depn., r/o major depression & PTSD” made on 27 February 2002, when the applicant was entered into a substance abuse treatment program.  Apparently, PTSD was ruled out, as it does not appear in any subsequent diagnosis records.  Moreover, on the date the applicant states he discovered the alleged error or injustice, the applicant was still in treatment.  The medical records the applicant provided make no mention of such a discovery.

Nonjudicial punishment is permitted by Article 15 and governed by the Manual for Courts-Martial and Air Force regulations.  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.

A member accepting nonjudicial punishment proceedings may have a hearing with the commander.  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 Article 15, set aside the punishment, decrease its severity, or deny the appeal.  Nonjudicial punishment does not constitute a criminal conviction.

Despite his claim to have been denied his procedural rights, clearly, the applicant was properly afforded the opportunity to choose his forum, to exercise his right to counsel and to present evidence in defense, extenuation or mitigation.  Indeed, he exercised those rights as he saw fit in both Article 15 actions.

His claim, made 25 years after the fact, that some entries were forged in the pertinent documents is not substantiated.  First, to the untrained eye, the entries identified by the applicant do not appear markedly different from those whose authenticity he does not contest.  Second, none of the contested entries (or other errors or irregularities) deal with any right or issue involving the applicant’s choice of forum or the commander’s ultimate determination of guilt or innocence.  Finally, at the time involved, the applicant was uniquely positioned to identify purported forgeries or other errors and obliged to make them known to proper authority so that appropriate (and timely) investigation or other action could be taken.  Accordingly, the fact that the applicant waited so long to raise this claim underscores its lack of merit.

With respect to applicant’s general claim to have been under the influence of medication at the time involved, he offers few specifics.  He cites two medications reflected in his medical records at the time, aspirin and Robaxin, and provides their respective entries (including potential side effects) in the PDR Family Guide to Prescription Drugs.  The listed side effects are all physical in nature ranging from heartburn to itching.  Neither entry lists any mental, emotional, or psychological side effect for the medications involved, or any effect that could conceivably have impaired the applicant’s judgment or conduct.  Certainly, other than applicant’s current assertion, again, made 25 years after the fact, there is not contemporary or other evidence provided in support of his claim that medication played any role in the matters involved.  Indeed, if the side effects of any medication were so extreme as to impact the process, it seems likely that such effects would have been observed, noted and addressed by the other parties involved.  The absence of any such evidence further undercuts the applicant’s belated claim.

Applicant’s remaining claim, racial prejudice, is unsupported by any evidence whatsoever.  As stated above, it was first raised twenty years ago and found to be unsubstantiated then.  Not only is no new evidence offered, no supporting evidence or explanation for this claim, of any kind, is provided by the applicant.  Clearly, it too is without merit.

With his decision to concur in each commander’s decision to address the allegations in the nonjudicial punishment forum, the applicant necessarily vested the commanders with the fact-finding power in the case.  The applicant did or had the opportunity to make arguments in defense, extenuation and mitigation at the time.  Each commander considered the arguments in defense, extenuation and mitigation at the time.  Each commander considered the arguments offered, weighed the severity of the offenses and determined that the punishment imposed was warranted.  While different fact finders may have come to different conclusions, there is no evidence that the commanders’ findings were either arbitrary or capricious or should, at this late date, be disturbed.  After reviewing the evidence before him, each commander determined that there was sufficient evidence that the accused committed one or more of the offenses charged.  Those decisions were subject to appeal by the applicant, who waived that right.  The commander’s decisions withstood the scrutiny of legal review at the time, and, subsequently, before the Discharge Review Board and (upon prior application) the Air Force Board for Correction of Military Records.

The applicant should not prevail here absent clear error or injustice.  The burden of proof rests with the applicant to show the commander erred.  He has clearly (and repeatedly) failed to produce any persuasive evidence to carry that burden.  The punishment imposed by each commander was well within the parameters set out in applicable instructions.  On its face, there is no evidence that it was unjust or disproportionately harsh given all the facts and circumstances before each commander.

A set aside should only be granted when the evidence demonstrates an error or a clear injustice.  The evidence presented by the applicant is not sufficient to mandate the relief requested, and does not demonstrate an equitable basis for relief.  After reviewing the available records, they conclude no legal errors exist requiring corrective action and do not recommend relief.  Additionally, as the applicant did not file his request in a timely manner, they recommend the Board assert the statute of limitations and deny the application.

The evaluation is at Exhibit C.

The BCMR Medical consultant recommended denial.  He indicated that the Department of Veterans Affairs medical records are available for review and indicate that the applicant reported beginning his use of alcohol and marijuana at age 18 (some documentation reports age 16) but had no problems with alcohol or drug abuse while in the military (27 February 2002 VA documentation).  He was hospitalized 16-20 April 1999 for alcohol and cocaine abuse.  The narrative summary indicated that the applicant had been in a substance abuse program the prior year.  No history of depression or PTSD was noted in this hospitalization report.  His discharge diagnosis was cocaine and alcohol abuse.  No other psychiatric diagnoses were rendered.  He was again hospitalized 23 and 24 July 1999 for alcohol and cocaine detoxification and readmitted on 28 July 1999.  The July 28 through 4 August 1999 psychiatric hospitalization reported diagnoses of Alcohol Dependence, Cocaine Dependence and Substance induced mood disorder.  Progress notes during the 28 July – 4 August 1999 hospitalization indicate that post service he was married but that his wife died in 1979 (motor vehicle accident).  He had fathered 2 children with another woman whom he never married.  Apparently following his discharge from the Air Force he reportedly worked in an AT&T plant as an electrician until approximately 1996 when the plant was closed and he lost his job (other documents indicate he worked in other electronic and communications related jobs for Texas Instruments, GTE Telephone, and the railroad).  This hospitalization reports that the applicant started drinking alcohol at age 17 and drank regularly for 2 to 3 years but then stopped for 20 years.  He resumed drinking alcohol in approximately 1996 and began using cocaine the same year.  He had symptoms of depression in 1998 associated with a suicide attempt by overdose.  Following his discharge from the inpatient unit on 4 August 1999, he participated in outpatient drug rehabilitation therapy pending a scheduled 1 September 1999, admission for inpatient rehabilitation.  The applicant entered intensive inpatient substance abuse rehabilitation in September 1999 and was discharged to the VA Domiciliary (living facility for veterans undergoing rehabilitation) for continued intensive outpatient treatment that included medical evaluations and vocational rehabilitation.  When he was released in April 2000, his discharge diagnoses included:  cocaine dependence, THC and alcohol abuse, homelessness with lack of income, depressed mood, and a history of a positive TB test treated with 6 months of medication in the past.  Additional information noted a civil conviction for domestic violence and that in the motor vehicle accident that killed his wife in 1979 he was the driver of the vehicle.

Following his April 2000 discharge from the VA rehabilitation program there are no VA records until 6 February 2002, when he represented the VA hospital with a chief complaint of “I need to get in Dom” (Domiciliary), recurrent cocaine and alcohol abuse for 4 to 5 months with symptoms of anxiety and feeling overwhelmed, unable to get shelter, and expressing thoughts of suicide without a plan.  He declined inpatient treatment, but instead wanted admission into the Domiciliary.  He was entered into outpatient treatment and admitted to the Domiciliary on 21 February 2002.  A 27 February 2002 psychology evaluation rendered diagnoses of alcohol, cocaine and marijuana dependence and “Rule out major depression and PTSD,” however, subsequent progress notes no longer listed any diagnosis other than substance abuse.

The applicant provides a copy of a psychiatry note from the Mountain Home VA Medical Center dated 21 February 2002 in which he reports that he was beaten by 3 men with M-16s while at his last duty station.  Review of the service medical record finds no entries for treatment for any injuries.  This 21 February 2002 psychiatry note indicates that the applicant has diagnoses of Major Depression, Alcohol Dependence, and Cocaine Dependence.  No diagnosis of PTSD, past or current is mentioned.

Following discharge from the Air Force his wife died in a motor vehicle accident in which he was reported to be the driver.  He held a variety of jobs and became unemployed in 1996 when he began to abuse alcohol and cocaine.  Following 1996 he experienced considerable social and occupational problems relating to his substance abuse resulting in repeated hospitalizations and intensive substance abuse rehabilitation.

Although the Robaxin prescribed on 17 and 18 September 1974 may cause drowsiness, blurred vision, dizziness, headache, lightheadedness, fever, rash, and gastrointestinal upset, there is no evidence that the applicant experienced any of these side effects.  Further, his misconduct on 11 September 1974 preceded the date he received this medication (17 and 18 September).  He contends that when he signed the order to correctional custody on 18 September 1974 his judgment was impaired by the Robaxin, however, it is unlikely that this was the case.  Furthermore, there is no evidence he was prescribed any medications after September 1974 that would affect his level of alertness and contribute to his continued misconduct or interfere with his ability to understand and respond to his punishment and administrative discharge.

The applicant contends he had Post Traumatic Stress Disorder (PTSD) while on active duty due to mistreatment related to racial discrimination.  The service medical record including his separation physical finds no reported symptoms to suggest PTSD.  Department of Veterans Affairs (DVA) medical records document substance abuse and a history of depression after 1996.  The DVA records indicate that there was no history of mental illness prior to 1996.  A single February 2002 DVA psychology note raises the possibility of PTSD or depression at that time, but subsequent records entries do not list any diagnosis other than substance abuse.  The medical issues raised by the applicant are without merit.

The evaluation is at Exhibit D.

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APPLICANT'S REVIEW OF AIR FORCE EVALUATION:

The applicant reviewed the evaluation and indicated that the advisory opinions seek to downplay important issues in this case, which are his service record with the Air Force, their actions and the actions of the AFDRB.  The death of his wife and the birth of his children serves no purposes in this case.  He has admitted that he is suffering from trauma associated with his addiction to pain medications that were dispensed to him by the Air Force.  These attacks on his character are irrelevant and inaccurate.  These medical issues have never been addressed by the AFDRB contrary to the AFLSA/JAJM this is his first application to the AFBCMR.  Thus, these medical issues have never been addressed by the AFBCMR.

He entered BMT at Lackland AFB, Texas on August 21, 1974 after being involved in a motor vehicle accident.  He was 18 years old and suffering from injuries associated with that accident.  He was taking prescribed pain medications during that time.  Eight days later, he was admitted to the Intermediate Care Facility for an upper viral illness with enlarged tonsils.  He was prescribed pain medications and nasal spray by the Practitioner.  Five days later, he was seen by the Physician Assistant for injuries associated with the motor vehicle accident.  The injuries were aggravated by the physical demands expected of him in basic training and he was prescribed more pain medications.  On 11 September 1974, during a motivation briefing his ears were ringing and buzzing and he was experiencing severe drowsiness and loss of hearing.  One of the NCOs started screaming at him.  At that point he was so confused that he has no knowledge of the rest of that day.  He understands now that he overdosed on the pain medications and the loss of hearing and confusion were part of the symptoms.  Prior to 11 September 1974, contrary to the BCMR Medical Consultant’s presumptions, he had no performance difficulties.

On 17 September 1974, he was seen by the same practitioner, for a second visit, for injuries associated with a fall at the local skating rink and was prescribed more pain medications which included several doses of a combination of Robaxin and aspirin.  To sufficiently relieve the pain, he consumed all of the available medications prescribed in one day.  He then felt he was becoming addicted due to the quantities of medication it took to relieve the pain.  On 18 September 1974, he reported to sick call to obtain a refill and was seen for a third time by the same Practitioner who had to have known that he was over medicated, yet he prescribed more pain medications.  Later that day he was escorted to the Commander’s office where he was instructed to sign orders.  Those orders advised him of his right to appeal.  He chose to appeal the punishment however, his request was denied.  He was then escorted to jail.

Applicant’s complete response, with attachments, is at Exhibit F.

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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 warranting the punishment imposed upon him under Articles 15, Uniform Code of Military Justice (UCMJ), on 18 September 1974 and on 10 September 1975 be set aside.  Applicant’s numerous contentions regarding racial discrimination and the side effects of medication contributing to his misconduct are duly noted; however, we find no evidence that the Article 15 actions taken against the applicant were in error or unjust.  In this respect, the applicant was offered and accepted nonjudicial punishment for failing to obey a lawful order by a superior commissioned officer and for failing to report to duty at the time prescribed on three separate occasions.  Therefore, we believe the commanders were in the best position to weigh the evidence in the case and judge the applicant’s credibility and demeanor throughout the proceedings before rendering their decisions.  There is no indication the commanders abused their discretionary authority when assessing the merits of the cases.   In view of the foregoing, we agree with the opinions and recommendations of the Air Force, in particular, the Associate Chief, Military Justice Division, and adopt their rationale as the basis for our conclusion that the applicant has not been the victim of an error or injustice.  Therefore, in the absence of 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 02-02361 in Executive Session on 11 February 2003, under the provisions of AFI 36-2603:

The following documentary evidence was considered:

   Exhibit A.  DD Form 149, dated 18 July 2002, w/atchs.
   Exhibit B.  Applicant's Master Personnel Records.
   Exhibit C.  Letter, AFLSA/JAJM, dated 19 September 2002.
   Exhibit D.  Letter, AFBCMR Medical Consultant,
               dated 7 November 2002.
   Exhibit E.  Letter, SAF/MRBR, dated 6 December 2002.
   Exhibit F.  Letter, Applicant, undated.