RECORD OF PROCEEDINGS
         AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS

IN THE MATTER OF:		DOCKET NUMBER:  BC-2003-00560
	(CASE 2)
							INDEX CODES:  108.00 111.02,
                                                 126.03, 131.09

			COUNSEL:  NONE

			HEARING DESIRED:  NO

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APPLICANT REQUESTS THAT:

EXAMINER’S NOTE:  Applicant’s requests are somewhat vague; it appears, in addition to the requests on his DD Form 149, he is seeking other actions which are contained in various submissions.

1.	He be advanced to the retired grade of staff sergeant effective 7 June 2003, not June 2002.

2.	His DD Form 214 be corrected in Item 11 by adding several Air Force Specialty Codes (AFSCs).

3.	His DD Form 214 be corrected to reflect his service at various overseas locations.

4.	The Enlisted Performance Report (EPR) rendered for the period 7 March 1990 through 6 March 1991 be upgraded to “4” and/or the derogatory comments be removed.

5.	The EPR rendered for the period 11 December 1991 through 8 April 1992 be upgraded in the ratings.

6.	He be given a disability rating from the Air Force due to hearing loss as a result of an ear cleaning injury and exposure to Agent Orange.

7.	The punishment imposed upon him under Article 15, Uniform Code of Military Justice (UCMJ), dated 7 January 1994, be set aside.

Additional Examiner’s note:  HQ AFPC/DPPRSP advised the applicant on 21 April 2003, that corrections to his DD Form 214, dated 30 September 1994, were made pertaining to his AFSCs and to his periods of service (Items 11, 12a, 12c, and 12d); therefore request #2 has been administratively corrected.  The Board staff has been advised that after his records are returned to HQ AFPC, further corrections will be made to applicant’s DD Form 214 regarding Foreign Service so his records will indicate 2 years, 4 months, and 18 days of Total Foreign Service.

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APPLICANT CONTENDS THAT:

He was separated from the service and returned as a sergeant, with no loss of time or grade as his records reflect.  His DD Form 214 does not accurately reflect his AFSCs - there are obvious errors on his DD Form 214.  He never received feedback on the 6 March 1991 EPR.  The rating is unfair.  Also, he believes the rating of an overall “2” on the EPR closing 8 April 1992 is unjust.

He was punished by having to undergo psychiatric evaluations as intimidation for trying to correct an asbestos problem in his unit while in Korea.

He was injured when a Red Cross volunteer improperly cleaned his ear.

Applicant’s complete submission is attached at Exhibit A.

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STATEMENT OF FACTS:

The applicant enlisted in the Delayed Enlistment Program (DEP) on 6 July 1972, was discharged on 5 September 1972 and on 6 September 1972, enlisted in the Regular Air Force (RegAF) for a period of four (4) years.

On 24 September 1974, the applicant was notified of his commander's intent to impose nonjudicial punishment upon him for possession of marijuana on or about 14 September 1974, at Grissom AFB, IN, in violation of the Uniform Code of Military Justice (UCMJ), Article 92.

On 25 September 1974, after consulting with counsel, applicant waived his right to a trial by court-martial, requested to make an oral presentation, but did not submit a written presentation.

On 26 September 1974, he was found guilty by his commander who imposed the following punishment:  forfeiture of $50.00 for two months.  The applicant did not appeal.

He was honorably released from active duty on 3 September 1976 and transferred to the Reserve of the Air Force, effective 4 September 1976.  He served in the Inactive Reserves until his discharge on 30 August 1977.  He enlisted in the RegAF on 31 August 1977 for a period of four (4) years and on 30 August 1981, he was honorably discharged.

He enlisted in the RegAF on 2 March 1982, in the grade of sergeant (E-4) for a period of four (4) years and was honorably discharged on 16 October 1985.  During this enlistment, he was promoted to the grade of staff sergeant effective and with a date of rank of 1 February 1984.  The applicant reenlisted on 17 October 1985 in the grade of staff sergeant for a period of four (4) years.  He contracted his last enlistment on 25 July 1989, in the grade of staff sergeant for a period of four (4) years.

On 6 August 1993, the applicant was tried by Special Court-Martial at Minot AFB, ND, for wrongful use of marijuana on or about 25 January 1993 to 3 February 1993, in violation of Article 112a, UCMJ.  He was found guilty and sentenced to confinement for six months and reduction to the grade of airman first class.

On 10 December 1993, while in confinement, the applicant was notified of his commander's intent to impose nonjudicial punishment upon him for six charges of assault, dereliction of duty, disorderly conduct, and showing disrespect to a non-commissioned officer.

The applicant was released from confinement on 5 January 1994 and returned to duty.

On 6 January 1994, after consulting with counsel, applicant waived his right to a trial by court-martial and requested a personal appearance and submitted a written presentation.

On 7 January 1994, he was found guilty by his commander who imposed the following punishment:  reduction to the grade of airman, effective 7 January 1994.  The applicant appealed the punishment; however, the commander recommended to the appeal authority that it be denied, stating he found the applicant guilty of four of the six charges and the applicant admitted to committing these four charges.  The appeal was denied.

On 28 January 1994, the applicant requested, as an exception to policy, he be allowed to retire during the fiscal year 1994 Early Retirement Program as an airman with over 19 years, 6 months of total active military duty served.  Both the squadron commander and Military Flight Commander (MPF) commander concurred in his request since he was not afforded the opportunity to request early retirement due to confinement.

On 13 May 1994, the applicant was advised of his commander’s intent to recommend his discharge for misconduct, specifically, drug abuse, in accordance with AFR 39-10, paragraph 5-51.  The commander recommended a general discharge and cited the court-martial as the basis for the action.  He was advised of his rights, to include presenting his case to an Administrative Discharge Board (ADB).

An ADB was convened on 3 August 1994 at Minot AFB, ND, to determine whether discharge prior to the applicant’s expiration of term of service was appropriate.  After evidence was presented by the government and the applicant, who was represented by legal counsel, the ADB recommended the applicant be retained on active duty.  The discharge authority approved the results of the ADB and directed the applicant be retained on active duty.

On 28 September 1994, the Secretary of the Air Force directed the applicant be advanced only to the higher grade of sergeant (E-4) pursuant to Section 8964, Title 10, United States Code (10USC) and directed his advancement to that grade effective the date of completion of all required service.

The applicant was voluntarily retired in the grade of airman (E‑2), effective 1 October 1994.  He served 20 years, 6 months, and 27 days of net active duty, with time lost during the period 6 August 1993 to 5 January 1994, for total active service of 20 years, 1 month, and 27 days.  The applicant will be advanced on the retired list to the grade of sergeant effective 4 August 2004.

A resume of the applicant's performance reports since 1982 follows:

	PERIOD ENDING	OVERALL EVALUATION

					11 Aug 82		8
					 5 Apr 83		8
					 5 Apr 84	Not in the official record
					 5 Apr 85		8
					 6 Mar 86		8
					 6 Mar 87		9
					 6 Mar 88		9
					 6 Mar 89		8
					 6 Mar 90		4 (New system)
			*	 6 Mar 91		3
			*	 8 Apr 92		2 (Referral)
					11 May 93		2

*Contested Reports.

During the applicant’s military service, he was treated for a variety of medical conditions which are discussed in the advisory opinion provided by the AFBCMR Medical Consultant at Exhibit J.

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AIR FORCE EVALUATION:

HQ AFPC/DPPAC states a review of the documentation submitted substantiates the applicant’s claim that Item 11 does not reflect all of the AFSCs he performed while on active duty.  The records substantiates he not only performed duty in 3M052, but also in 30651 and 46150.  He never performed duty in 2W051.  Further, the records also reflect the periods of service for the AFSCs in which he performed differ from the periods indicated in Item 11.  They recommend changes to Item 11 of the DD Form 214, as follows:  3M051 - Morale, Welfare Recreation and Services Journeyman, 2 years, 6 months; 46150 - Munitions Systems Specialist, 13 years, 9 months; and 30651 - Electronic - Mechanical Communications and Cryptographic Equipment Systems Specialist, 3 years, 11 months.

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

EXAMINER’S NOTE:  A DD Form 215 has been issued making these changes.

HQ AFPC/DPPRRP reviewed the application with respect to retirement processing and recommended denial.  They give a chronological listing of the applicant’s service and indicate the time the applicant spent in the DEP, the Inactive Reserves, and confinement is not creditable time for advancement purposes.  Also, from 31 August 1981 to 1 March 1982, the applicant was not affiliated with any branch of military service.  The highest grade the applicant held while on active duty was staff sergeant.  Based on the chronological listing of his military service, the applicant accumulated a total of 20 years, 6 months, and 27 days active military service, however, the five months spent in confinement had to be made good so his active service totaled 20 years, 1 month, and 27 days.  They state Section 8964, Title 10, United States Code (10USC) allows advancement of enlistment members (when their active service plus service on the retired list totals 30 years) on the retired list to the highest grade in which they served satisfactorily as determined by the Secretary of the Air Force (SAF).  SAF has delegated this authority to the SAF Personnel Council (SAFPC).  SAFPC determined on 28 September 1994, that the applicant did not serve satisfactorily in any higher grade than sergeant (E-4).  A review of the applicant’s master personnel records revealed an error on Special Order AC-000098, which amended the original retirement order (AC-024717).  Special Order AC-000098 directed that effective 7 June 2003, the applicant would be advanced to the grade of sergeant on the retired list.  The advancement effective date of 7 June 2003 was incorrect based on the applicant’s Total Active Federal Military Service Date (TAFMSD) of 4 August 1974.  The applicant will not complete 30 years service until 3 August 2004 and will be advanced to the grade of sergeant effective 4 August 2004.  A special order has been issued correcting the error.  In summary, there are no provisions of law to grant credit for unserved service, nor do they support awarding the applicant credit for over two years of active service to permit advancement on the retired list effective 7 June 2002.  All criteria of the law have been met in this regard and corrective action has been taken to correct the applicant’s effective date of advancement from 7 June 2003 to 4 August 2004.

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

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APPLICANT'S REVIEW OF AIR FORCE EVALUATION:

After reviewing the evaluations, the applicant states he should be promoted to the grade of staff sergeant at the 30-year point.  He continues by relating a myriad of issues to include, but not limited to problems at Minot AFB and Kunsan Air Base, Korea, forms missing from his records, being sent on a short notice tour to keep him from contesting an unjust EPR, safety problems in his unit in Korea, an ear injury while assigned to Minot AFB leading to a change in his personality, and being by-passed for promotion.  Due to the stress of his situation, he made a bad mistake for which he was court-martialed, but was retained.  He states he did excellent work yet was by-passed for promotion.  He feels he was punished for contesting an EPR.

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

By application, dated 8 September 2003, the applicant provided additional documentary evidence for the Board’s consideration, which is attached at Exhibit H.

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ADDITIONAL AIR FORCE EVALUATION:

AFLSA/JAJM reviewed the application with respect to the applicant’s court-martial on 6 August 1993 and recommends denial.  They state the approved sentence was well within the legal limits and was an appropriate punishment for the offenses committed.  The appropriateness of the sentence 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 was afforded all rights granted by statute and regulation.  As a non-commissioned officer, he had a duty to serve as an example to airmen of lesser rank.  Through his use of marijuana, he betrayed his duty, not only to the Air Force, but to his family and himself.  It should be noted the applicant’s record of service was not unblemished as his records reflect he had previously received an Article 15 for possession of marijuana in 1974.

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

The AFBCMR Medical Consultant reviewed the application with respect to the medical concerns raised by the applicant and indicates no change to the records is warranted based on medical issues.  The Consultant indicates the applicant links poor duty performance and his decision to use marijuana to cognitive impairment caused by exposure to toxic fumes, right ear pain, and medications.  The preponderance of the evidence does not support a conclusion that toxic fumes caused the applicant’s decline in duty performance or his decision to use marijuana.  The medications used for the ear pain, in the latter years, eardrops, do not cause cognitive or judgment difficulties.  The applicant experienced symptoms of hay fever (allergic rhinitis) for which he used over-the-counter antihistamine/decongestant medications (Contact) and was prescribed similar medications by his physicians.  Some of these medications were documented to cause some drowsiness in the applicant, but he tolerated one medication without drowsiness and was also prescribed a new non-sedating antihistamine.  He was aware of the side effects and was able to avoid those that caused side effects and obtain those that did not.  There is no evidence in the medical record that shows any concern about chronic side effects affecting duty performance due to these medications or a requirement to take them on a daily basis.  Lastly, the applicant was treated episodically with non-steroidal anti-inflammatory medications (aspirin like medications - Motrin used almost exclusively) primarily for shoulder pain.  He was treated in January 1991 with a medication that can cause side effects including depressed mood, dizziness, headache, and fatigue, thus impairing duty performance, however, he was not treated with this medication on a frequent or chronic basis.  Motrin only rarely causes these types of side effects and mild effects do not affect duty performance.  When severe enough to affect occupational functioning, patients report such symptoms to their physicians.  Evidence of record shows episodic treatment and not chronic treatment with these medications and the sustained problems he experienced are not attributable to these medications.

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

HQ AFPC/DPPPE reviewed the application regarding the EPR issue and strongly recommends denial to change the rating on the EPR closing 6 March 1991 from a “3” to a “4.”  Further, there is no justification to delete any verbiage on this same report.  After an in-depth review of the records, the rating and comments are consistent with each other.  The applicant has provided no evidence to support his allegation; nor has he provided justification to change the rating from a “3” to a “4.”  This point is actually moot since ratings and expectations can change from each reporting period, nor are ratings for one reporting period dependent upon a previous report.  They do not make a recommendation regarding the EPR closing 8 April 1992 because they can find nothing contesting this report.

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

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APPLICANT’S REVIEW OF ADDITIONAL AIR FORCE EVALUATION:

After reviewing the additional evaluations, he states he is submitting documentation showing he never admitted to the offenses in the Article 15.  He is submitting information from the Department of Veterans Affairs (DVA) showing service connection for several medical conditions.  He further submits documentations from mid and senior level enlisted members plus officers demonstrating his skills and abilities thereby showing the contested EPRs are inaccurate.  He questions the merit of the Article 15 he received while in confinement.

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

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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 his requests he be advanced to the retired grade of staff sergeant effective 7 June 2003, and he be given an Air Force disability rating.  Notwithstanding his assertions concerning these requests, we do not find the documentation presented in support of his appeal sufficiently persuasive to override the rationale provided by the Air Force offices of primary responsibility (OPRs).  Based on this reason, and in the absence of sufficient evidence to the contrary, we agree with the recommendation 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, his requests are not favorably considered.

4.  Concerning his request the Article 15 dated 7 January 1994 be set aside, the evidence of record reflects that, after considering all matters presented by the applicant, his commander determined that he had committed one or more of the offenses alleged, and made the decision to impose nonjudicial punishment under Article 15.  The applicant appealed the punishment but it was denied.  We choose not to disturb the discretionary judgments of commanding officers, who are closer to events, absent a strong showing of abuse of that authority.  Therefore, in the absence of persuasive evidence the applicant’s substantial rights were violated, he was coerced to waive any of his rights, or the commander who imposed the nonjudicial punishment abused his discretionary authority, we conclude that no compelling basis exists to recommend granting the requested relief.

5.  Regarding his request his 6 March 1991 EPR be upgraded or removed and his 8 April 1992 EPR be upgraded, we note that evaluators are required to assess a ratee’s performance, honestly and to the best of their ability, based on their observance of an individual’s performance.  No evidence has been presented which has shown to our satisfaction the applicant’s evaluators were unable to render accurate, unbiased evaluations of his performance, or that the contested reports were based on factors other than the applicant’s duty performance during the contested rating periods.  Additionally, we found no evidence the contested reports were prepared contrary to the governing regulation nor did we find a rater’s failure to conduct counseling or feedback sessions to be a sufficient basis to invalidate a report.  In view of the foregoing, and in the absence of evidence to the contrary, we find no compelling basis to recommend favorable action on the applicant’s requests.

6.  It appears the applicant’s request pertaining to his AFSCs has been resolved administratively.  We further note the Board staff has been advised his request that his DD Form 214 be corrected to reflect his service at various overseas locations will also be resolved administratively once his records are returned to the Air Force Personnel Center.  In view of the above, no further action is necessary regarding these requests.

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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-2003-00560 in Executive Session on 22 April 2004, under the provisions of AFI 36-2603:

	Panel Chair
	Member
	Member

The following documentary evidence was considered:

    Exhibit A.  DD Form 149, dated 8 February 2003, w/atchs.
    Exhibit B.  Applicant's Master Personnel Records.
    Exhibit C.  Letter, AFPC/DPPAC, dated 4 April 2003.
    Exhibit D.  Letter, AFPC/DPPRRP, dated 9 May 2003, w/atchs.
    Exhibit E.  Letter, SAF/MRBR, dated 23 May 2003.
    Exhibit F.  Letter, applicant, dated 3 June 2003, w/atchs.
    Exhibit G.  Letter, AFBCMR, dated 2 September 2003.
    Exhibit H.  DD Form 149, dated 8 September 2003, w/atchs.
    Exhibit I.  Letter, AFLSA/JAJM, dated 8 October 2003.
    Exhibit J.  Letter, Medical Consultant, dated 5 January 2004.
    Exhibit K.  Letter, AFPC/DPPPE, dated 3 March 2004.
    Exhibit L.  Letter, SAF/MRBR, dated 5 March 2004.
    Exhibit M.  Letter, applicant, dated 31 March 2004, w/atchs.

                                   
                                   Panel Chair