RECORD OF PROCEEDINGS
AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS

IN THE MATTER OF:	DOCKET NUMBER:  BC-2002-02512
					INDEX CODE:  110.00

	APPLICANT		COUNSEL: None

	SSN				HEARING DESIRED: No

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APPLICANT REQUESTS THAT:

His bad conduct discharge (BCD) be upgraded.
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APPLICANT CONTENDS THAT:

His discharge was not processed in accordance with regulation.  His complete medical records were not made available to the court.  He was never informed that he was diagnosed as a Psychopath.  He was not given an opportunity to comment on his appeal of his BCD, nor was he informed of the court’s decision.

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

EXAMINER’S NOTE:  The applicant submitted three DD Forms 149, dated 29 July 2002, Undated and 7 November 2002.

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STATEMENT OF FACTS:

Applicant enlisted in the Regular Air Force on 8 March 1973 for a period of four (4) years as an airman basic.

Throughout his military career the applicant received four Article 15s, and was tried by special and general court-martials.

The applicant was discharged on 10 July 1975 with a service characterization of other than honorable conditions discharge and issued a DD Form 259AF - Bad Conduct Discharge.  He served a total of two years, four months and three days of active duty service.  He had 108 days of lost time.

The remaining relevant facts pertaining to this application, extracted from the applicant's military records, are contained in the letters prepared by the appropriate offices of the Air Force.

Pursuant to the Board’s request, the Federal Bureau of Investigation, Washington, D.C., provided an investigative report which is attached at Exhibit C.

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AIR FORCE EVALUATION:

AFLSA/JAJM states the applicant’s mental health was a central issue during his court-martial.  During the trial the applicant fainted and was taken to the VA hospital for neurological and psychiatric testing.  While undergoing testing the applicant left the hospital twice with out permission.  On 31 July 1974, he was taken to the medical center at Wright-Patterson AFB for diagnosis and treatment.  A sanity board was convened and the board found the applicant was suffering from a character and behavior disorder diagnosed as an antisocial personality.  The board determined at the time of the alleged offenses the applicant was free from mental defect, disease or derangement, and was able to distinguish right from wrong and to adhere to the right.  The board also determined the applicant possessed sufficient mental capacity to understand the nature of the proceedings and cooperate in his defense.

The applicant, before and after the court-martial, felt, if discharged his character of service should be honorable.  However, his chain of command felt different.  His commander stated, “Throughout his association with him (applicant), his behavior has been consistently counterproductive.”  The First Sergeant added, the applicant “has displayed a very negative attitude toward his supervisors and superiors” and that “counseling sessions, letters of reprimand, control roster action and disciplinary actions have little or no effect on him.”  The applicant’s duty supervisor noted the applicant’s “bearing and behavior, both on and off duty is a discredit to himself and the Air Force.”  His correction officer stated, “his military bearing has been almost nonexistent and his conduct has been far below acceptable standards….I cannot place any trust in this airman.”  Finally, the chaplain stated, “It seems to me that the sum total of charges for which the applicant was found guilty would warrant a far greater sentence than has been handed down by the Court” and “his future value to the Air Force is almost nil.”  The applicant was asked if he was satisfied with his Defense Counsel’s representation and the manner in which the trial was conducted and he replied he had no arguments about the trial.  Furthermore the applicant did not desire to participate in the retraining program.

The convening authority disapproved some of the findings of guilt and was required to reassess the sentence.  The convening authority approved the sentence as adjudged.  This was a proper action within the discretion of the convening authority.  After 
some of the findings were disapproved, the maximum punishment remained the jurisdictional limit of a special court-martial.  Considering the applicant’s previous special court-martial conviction, Article 15s, and lack of rehabilitation potential, the sentence including the bad conduct discharge, was appropriate.

The applicant requested and was assigned counsel to represent him in his appeal to the Air Force Court of Military Review (AFCMR).  The communications between the appellate defense counsel and the accused are not normally made part of the record.  At the time of the applicant’s appeal, the defense counsel was required to only submit issues that counsel deemed meritorious.  The applicant’s allegation that certain medical records should have been introduced at trial and on appeal has no merit.  Only one document in the applicant’s record mentioned a preliminary diagnosis of “psychopathic behavior.”  This was in addition to the diagnosis of personality disorder, which was a single diagnosis reached by the psychiatrists at the medical center.  Evidence of psychopathy is considered an aggravating factor and would have been damaging to the applicant’s sentencing case and probably resulted in a less favorable sentence.

AFLSA/JAJM further states that while clemency is an option, there is no reason for the Board to exercise clemency in the applicant’s case.  The applicant was not diagnosed as a psychopath.  The court-martial, convening authority and the appellate court considered his psychological diagnosis, as well as other mitigating evidence.  Each determined the sentence including the bad conduct discharge, appropriately characterized the applicant’s military service and crimes.  The applicant did not serve honorably and it would be unjust to change his characterization to one that hundreds of thousands of airman, who have served honorably, carry.  The applicant has not presented sufficient evidence to warrant upgrading his discharge and therefore they recommend the requested relief be denied.

A complete copy of the evaluation is attached at Exhibit D.

The Chief Medical Consultant, AFBCMR, states the applicant was diagnosed with Anti-Social Personality Disorder (the term “psychopathic” is defined as anti-social) and the sanity board determined the applicant was capable of knowing and choosing right from wrong, and was responsible for his behavior and was capable of understanding and cooperating with his legal proceedings.

The Medical Consultant further states personality disorders are not a disease, but a lifelong pattern of maladjustment in the individual’s personal structure which are not medically disqualifying or unfitting but may render the individual unsuitable for further military service and could be a cause for 
administrative or disciplinary action by the unit commander for either misconduct or unsuitability.

The Medical Consultant believes the action and disposition of the applicant’s case were proper and equitable, and in accordance with applicable Air Force directives that implement the law.  Based on the rationale provided, the Medical Consultant recommends the requested relief be denied.

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

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APPLICANT'S REVIEW OF AIR FORCE EVALUATION:

Copies of the Air Force evaluations and the FBI report were forwarded to the applicant on 4 April 2003 and 23 May 2003, respectively, for review and response.  As of this date, no response has been received by this office.  

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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 of timely file.

3.	Insufficient relevant evidence has been presented to demonstrate the existence of error or injustice.  After thoroughly reviewing the evidence or record, we find no evidence to show that the applicant’s discharge as a result of his conviction by court-martial was erroneous or unjust.  The applicant’s contentions are duly noted, however, he has not submitted persuasive evidence to support these contentions.  Therefore, we agree with the opinions and recommendations of the Air Force offices of primary responsibility and adopt their rationale as the basis for our conclusion that the applicant has not been the victim of either an error or an 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 BC-2002-02512 in Executive Session on 10 June 2003 under the provisions of AFI 36-2603:

The following documentary evidence was considered:

   Exhibit A.  DD Form 149, dated 20 Nov 02, w/atchs.
   Exhibit B.  Master Personnel Records.
   Exhibit C.  FBI Report.
   Exhibit D.  Letter, AFLSA/JAJM, dated 16 Dec 02.
   Exhibit E.  Letter, AFBCMR Medical Consultant, dated 
               14 Mar 03.
   Exhibit F.  Letter, SAF/MRBR, dated 4 Apr 03.
   Exhibit G.  Letter, AFBCMR, dated 23 May 03.