RECORD OF PROCEEDINGS
         AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS

IN THE MATTER OF:	DOCKET NUMBER:  02-02732
		INDEX CODE:  108.00

		COUNSEL:  NONE

		HEARING DESIRED:  NO

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APPLICANT REQUESTS THAT:

His records be corrected to reflect a medical discharge based on a diagnosis of bipolar disorder.

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APPLICANT CONTENDS THAT:

The bipolar disorder existed prior to his discharge.  Had the condition been known to exist at that time, it would have altered the outcome of his court-martial and discharge.

Applicant’s complete submission is at Exhibit A.

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STATEMENT OF FACTS:

The applicant initially enlisted in the Regular Air Force on 31 Jan 79 in the grade of airman basic.  Prior to the matter under review, the applicant was progressively promoted to the grade of staff sergeant.

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

	PERIOD ENDING	EVALUATION

	30 Jan 80		9
	15 Oct 80		9
	15 Oct 81		9
	17 Jul 82		9
	17 Jul 83		9
	29 Jan 84		9
	 1 Jun 84		9

A General Court-Martial Order Number 16, dated 7 May 85, indicates that the applicant was tried by general court-martial.  He was charged with attempted murder; attempted armed robbery; attempted possession of heroin; possession of drug paraphernalia; escape from custody; possession of heroin, cocaine, marijuana and phenobarbital; and making and uttering bad checks.  The applicant pled guilty to each of the offenses, except for the attempted murder specification.  For that charge, he pled guilty to assault with a deadly weapon. 

On 25 Jan 85, the applicant was sentenced to be discharged with a dishonorable discharge, to be confined for a period of twenty years, forfeiture of all pay and allowances, and to be reduced in grade to airman basic (E-1).  The convening authority approved the sentence as adjudged except for the portion of the sentence pertaining to confinement, which he reduced to 18 years.  

On 1 Aug 86, the approved sentence of the general court-martial was affirmed, except for the portion of the sentence pertaining to confinement, which was reduced to 15 years, and the discharge was ordered into execution.

Applicant was discharged with a dishonorable discharge on 19 Nov 86.  He was credited with 5 years, 6 months and 28 days of active military service.

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 in the available medical records documenting a diagnosis of bipolar disorder other than a single reference in Mar 93.  The applicant clearly had a substance abuse disorder with narcotics and cocaine that can mimic symptoms of bipolar disorder.  When drug abuse is the cause of such symptoms it is diagnosed as substance induced mood disorder and not bipolar disorder.  However, substance abuse can complicate bipolar disorder and symptoms of the bipolar disorder and the substance abuse disorder become inextricably intertwined.

According to the Medical Consultant, there was no evidence in the record that the applicant exhibited symptoms of bipolar disorder prior to his drug abuse.  Several months prior to his arrest for drug related offenses, a mental health evaluation found no evidence of mental illness.  The evidence of the record indicated that the applicant had been abusing drugs well before his criminal conduct, and that his problems with drug abuse continued following his discharge when he was not in confinement.  The applicant had a thorough mental health evaluation prior to the court‑martial proceedings and was presumably determined to be sane, responsible for his actions and mentally competent to stand trial.  He further had no evidence at that time of a medical condition that would have been unfitting for continued service requiring entry into the Air Force Disability System.  The action and disposition in this case were proper and equitable reflecting compliance with the Air Force directives that implement the law.  In the Medical Consultant’s opinion, no change in the records is warranted.

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

AFLSA/JAJM recommended denial indicating that no error or injustice has occurred which requires the correction of applicant’s court-martial record.  Additionally, while clemency is an option, there is no reason for the Board to exercise clemency in this case.  First, there was no evidence that the applicant suffered from an untreated bipolar disorder at the time of or prior to his offenses in 1984.  To the contrary, the applicant’s military career was progressing admirably until he chose to start using drugs.  Additionally, the sanity board, specifically convened at the applicant’s request, found conditions related to his use of drugs, but concluded that the applicant was in full possession of his faculties.  However, even if the applicant suffered from bipolar disorder at the time of or prior to his offenses in 1984, there was no reason to believe, based on the results of the sanity board, that it would have affected the trial.  The applicant pled guilty to several serious charges, including assault with a deadly weapon for shooting a pharmacist during the course of an armed robbery.  He faced a maximum sentence that included a dishonorable discharge and 43.5 years of confinement.  In mitigation, the defense presented testimony from a psychiatrist, Chief of Mental Health Services, and the president of the sanity board, about the nature and duration of the applicant’s addiction to heroin and why this addiction led the applicant to commit the armed robbery and shooting of the pharmacist.  The applicant then told the members about the difficulty he was experiencing during the time period of the offenses.  The panel members considered this information and sentenced the applicant to lengthy confinement and a dishonorable discharge.

In AFLSA/JAJM’s view, the applicant has provided no evidence of a clear error or injustice related to his sentence of a dishonorable discharge, and has presented insufficient evidence to warrant the granting of clemency by the AFBCMR.

A complete copy of the AFLSA/JAJM 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 21 Feb 03 for review and response.  As of this date, no response has been received by this office (Exhibit E).

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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.  The applicant's submission was thoroughly reviewed, and his contentions were duly noted.  However, we do not find the applicant’s assertions sufficiently persuasive to override the rationale provided by the Air Force offices of primary responsibility (OPRs).  The evidence of record indicates that the applicant was convicted by general court-martial of various offenses, including attempted assault with a deadly weapon, attempted armed robbery, and possession of illegal drugs.  He contends that he had a bipolar disorder prior to his discharge, and, that had the condition been known, it would have altered the outcome of his court-martial and discharge.  No evidence has been presented which would lead us to believe that the applicant’s service characterization, which had its basis in his conviction by general court-martial was improper.  Furthermore, based on the evidence presented, we are not inclined to act favorably based on clemency at this time.  In view of the foregoing, and in the absence of evidence to the contrary, we agree with the recommendations of the OPRs and adopt their rationale as the basis for our decision that the applicant has failed to sustain his burden of establishing that he has suffered either an error or an injustice.  Accordingly, 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 02-02732 in Executive Session on 25 Mar 03, under the provisions of AFI 36-2603:

The following documentary evidence was considered:

    Exhibit A.  DD Form 149, dated 22 Aug 02.
    Exhibit B.  Applicant's Master Personnel Records.
    Exhibit C.  Letter, Medical Consultant, dated 18 Oct 02.
    Exhibit D.  Letter, AFLSA/JAJM, dated 3 Feb 03.
    Exhibit E.  Letter, SAF/MRBR, dated 21 Feb 03.