RECORD OF PROCEEDINGS
         AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS

IN THE MATTER OF:	DOCKET NUMBER:  BC-2002-04031
		INDEX CODE:  108.00

		COUNSEL:  NONE

		HEARING DESIRED:  YES

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APPLICANT REQUESTS THAT:

His records be corrected to reflect his entitlements to benefits that he was denied because of his dismissal.

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APPLICANT CONTENDS THAT:

Although a pre-existing medical condition disqualified him from military service, it should not disqualify him from receiving benefits.

In support of his appeal, the applicant provided a copy of DD Form 293, Application for the Review of Discharge or Dismissal from the Armed Forces of the United States, and documentation from the Department of Veterans Affairs.

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

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STATEMENT OF FACTS:

Applicant was appointed a second lieutenant, Reserve of the Air Force on 5 May 85.

The applicant was tried by general court-martial and charged with (1) wrongfully and dishonorably obtaining an extension on a $2500 loan by forging and using the signature of another person, wrongfully and dishonorably attempting to obtain a £714.48 loan by using the signature of another person on a letter of recommendation, and wrongfully and dishonorably obtaining a $15,285 loan by using an alias, false social security number, and asserting false and misleading financial data on a credit application and a conditional sales contract, all in violation of Article 133, Uniform Code of Military Justice (UCMJ); (2) attempting to wrongfully appropriate £714.48, in violation of Article 80, UCMJ; and (3) writing four bad checks totaling approximately $450 with the intent to defraud and knowing he did not or would not have sufficient funds to cover the checks, in violation of Article 123a, UCMJ.  The applicant chose to be tried by military judge alone.  The applicant pled not guilty to the first two Article 133 offenses, but guilty to the third regarding the $15,285 loan.  He was found guilty of all three Article 133 offenses.  The applicant pled not guilty to the Article 80 offense and was found not guilty.  The applicant pled not guilty to the Article 123a specifications, but guilty to the lesser offense of failing to maintain sufficient funds to cover the checks, an Article 134 offense.  The military judge found the applicant guilty of violating Article 134, not Article 123a.

On 14 Sep 88, the military judge sentenced the applicant to be dismissed from the service.  On 4 Nov 88, the convening authority approved the sentence as adjudged.

On 2 Nov 89, the Secretary of the Air Force ordered the dismissal to be executed, effective 18 Nov 89.  He was credited with 6 years, 7 months, and 11 days of total active service.

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AIR FORCE EVALUATION:

AFLSA/JAJM recommended denial.  They noted the applicant's argument that a pre-existing condition should not disqualify him from receiving benefits.  However, in their view, he provided no evidence to support his contention.

AFLSA/JAJM noted that under 10 USC Section 1552(f), the AFBCMR’s ability to correct records related to courts-martial is limited.  Specifically, Section 1552(f)(1) permits the correction of a record to reflect actions taken by reviewing authorities under the UCMJ.  Additionally, Section 1552(f)(2) permits the correction of records related to action on the sentence of courts-martial for the purpose of clemency.  Apart from these two limited exceptions, the effect of Section 1552(f) is that the AFBCMR is without authority to reverse, set aside, or otherwise expunge a court-martial conviction that occurred on or after 5 May 1950 (the effective date of the UCMJ).

According to AFLSA/JAJM, there is no legal basis for upgrading applicant’s discharge.  The appropriateness of the applicant’s sentence, within the prescribed limits, is a matter within the discretion of the court-martial and may be mitigated by the convening authority or within the course of the appellate review process.  The applicant had the assistance of counsel in presenting extenuating and mitigating matters in their most favorable light to the court and the convening authority.  These matters were considered in review of the sentence.  The applicant was thus afforded all rights granted by statute and regulation.  The applicant provides no compelling rationale to mitigate the approved dismissal given the circumstances of the case.

The issues of the applicant’s mental health and potential Veterans Administration (VA) benefits were at the forefront of the applicant’s sentencing case.  The focus of the applicant’s defense counsel’s sentencing argument was the applicant’s mental health.  The defense counsel reminded the court that the applicant was mentally ill, and that he was on medications to try and control his mental condition.  He argued that the applicant should be neither confined nor dismissed from the service, but needed medical treatment and “the benefits of the Veterans Administration hospital system.”  The defense counsel rhetorically asked how much punishment society should visit upon the applicant.  The answer was in the military judge’s sentence:  a dismissal.  Throughout the post-trial process this conclusion was supported, with full knowledge that the applicant would be ineligible for VA benefits.  The convening authority, the Air Force Court of Military Review, the United States Court of Military Appeals, and the Secretary of the Air Force all determined a dismissal accurately characterized his military service and his crimes.

AFLSA/JAJM indicated while clemency is an option, there is no reason for the Board to exercise clemency in this case.  The applicant did not serve honorably.  He failed even to assert that he has been an upstanding citizen or asset to the community since his dismissal.  Moreover, the applicant has provided no evidence of a clear error or injustice related to the sentence.  In their view, the applicant presented insufficient evidence to warrant upgrading the dismissal, and did not demonstrate an equitable basis for relief.

A complete copy of the AFLSA/JAJM evaluation is at Exhibit C.

The Medical Consultant recommended denial noting that depression with psychotic features developed after the initiation of legal proceedings against the applicant prompting hospitalization and a Sanity Board.  The Sanity Board concluded that at the time of his offenses he knew right from wrong and was able to conform his behavior to the requirements of the law.

The Medical Consultant noted that the applicant was also diagnosed with a schizotypal personality disorder.  According to him, personality disorders are not a disease but are lifelong patterns of maladjustment in the individual’s personality structure which are not medically disqualifying or unfitting but may render the individual unsuitable for further military service and may be cause for administrative action by the individual’s unit commander.  Individuals often seek treatment for associated symptoms of anxiety, depression, or other dysphoric affects, and particularly in response to stress, individuals with this disorder may experience transient psychotic episodes as was apparently seen in the applicant.  A small number of individuals with this disorder go on to develop schizophrenia or another psychotic disorder (there is no evidence that the applicant had either of these disorders while on active duty).

In the Medical Consultant's view, the action and disposition in this case are proper and equitable reflecting compliance with Air Force directives that implement the law.

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

AFPC/DPPD recommended denial.  They indicated that they concur that the preponderance of evidence justified the applicant's court-martial considering the serious offenses committed by him.  They also agreed with the Medical Consultant’s comments that stated the applicant's depression and psychotic features developed shortly after the initiation of legal proceedings against him, which resulted in his hospitalization and a Sanity Board hearing.  This was verified in his psychiatric evaluation.  

According to AFPC/DPPD, the governing regulation at the time of the applicant's court-martial stated that military members who are charged with one or more offenses that may result in dismissal or a punitive discharge by a court-martial are not eligible for processing through the military disability evaluation system (DES).  Additionally, it stated that individuals who undergo a court-martial sentence of dismissal or punitive discharge would not be processed under this regulation unless the sentence is suspended and the member’s physical or mental defects warrant review by the PEB.  This is not a factor in this case, as the applicant was found responsible for his actions.

In AFPC/DPPD's view, the applicant did not submit any material or documentation to show an error or injustice occurred, or why his records should be corrected authorizing him benefits from the DVA under the provisions of Chapter 38, USC.  Their conclusion is supported by the preponderance of evidence provided concerning his involuntary dismissal from the Air Force following his general court-martial.

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

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APPLICANT'S REVIEW OF AIR FORCE EVALUATION:

Copies of the Air Force evaluations were forwarded to applicant on 27 Jun 03 for review and response.  As of this date, no response has been received by this office (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 error or injustice.  The applicant's complete submission was thoroughly reviewed and his contentions were duly noted.  However, a majority of the Board does not find the applicant’s uncorroborated assertions or the documentation presented in support of his appeal sufficiently persuasive to override the rationale provided by the Air Force offices of primary responsibility (OPR).  The evidence of record reveals that the applicant was convicted by general court-martial of several offenses including wrongfully and dishonorably obtaining an extension on a $2500 loan by forging and using the signature of another person, wrongfully and dishonorably attempting to obtain a £714.48 loan by using the signature of another person on a letter of recommendation, wrongfully and dishonorably obtaining a $15,285 loan by using an alias, false social security number, and asserting false and misleading financial data on a credit application and a conditional sales contract, and, dishonorably failing to maintain sufficient funds to cover four checks totaling approximately $450.  The applicant was sentenced to be dismissed from the service, which was subsequently executed.  No evidence has been presented which would lead the majority to believe that the applicant’s dismissal from the Air Force was improper.  Furthermore, because of the serious nature of the offenses involved, the majority is of the opinion that favorable action based on clemency at this time would not be appropriate.  In view of the foregoing, and in the absence of sufficient evidence to the contrary, a majority of the Board adopts the Air Force rationale and concludes that no basis exists to recommend granting the relief sought in this application.

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 issues involved.  Therefore, the request for a hearing is not favorably considered.

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RECOMMENDATION OF THE BOARD:

A majority of the panel finds insufficient evidence of error or injustice and recommends the application be denied.

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The following members of the Board considered AFBCMR Docket Number BC-2002-04031 in Executive Session on 3 Sep 03, under the provisions of AFI 36-2603:

By a majority vote, the Board voted to deny the application.  Mr. XXXXX voted to grant the appeal but did not desire to submit a minority report.  The following documentary evidence was considered:

    Exhibit A.  DD Form 149, dated 7 Dec 02, w/atchs.
    Exhibit B.  Applicant's Master Personnel Records.
    Exhibit C.  Letter, AFLSA/JAJM, dated 22 Mar 03.
    Exhibit D.  Letter, Medical Consultant, dated 2 Jun 03.
    Exhibit E.  Letter, AFPC/DPPD, dated 24 Jun 03.
    Exhibit F.  Letter, SAF/MRBR, dated 27 Jun 03.

AFBCMR BC-2002-04031

MEMORANDUM FOR THE EXECUTIVE DIRECTOR, AIR FORCE BOARD
			FOR CORRECTION OF MILITARY RECORDS (AFBCMR)

SUBJECT:  AFBCMR Application of 

	I have carefully reviewed the evidence of record and the recommendation of the Board members.  A majority found that applicant had not provided sufficient evidence of error or injustice and recommended the case be denied.  I concur with that finding and their conclusion that relief is not warranted.  Accordingly, I accept their recommendation that the application be denied.

	Please advise the applicant accordingly.