RECORD OF PROCEEDINGS
AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS

IN THE MATTER OF:	DOCKET NUMBERS:  BC-2003-00805
		INDEX CODE 105.00 110.00 100.06
	 	COUNSEL:  XXXXX

	 	HEARING DESIRED:  Yes

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APPLICANT REQUESTS THAT:

The 1985 special court-martial (SCM) bad conduct discharge (BCD) be upgraded to an honorable or general discharge with a neutral reenlistment eligibility (RE) code. 

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APPLICANT CONTENDS THAT:

The military judge of the SCM recommended on the record on 23 Mar 84 that the BCD and the two-grade reduction be suspended. Despite this and numerous other recommendations for clemency, the convening authority approved the sentence as imposed. Counsel asserts the SCM was too harsh. The applicant has paid an unfair and extraordinarily high price for submitting false vouchers for a total value of less than $900 over 20 years ago.  The applicant lost 17 years of retirement equity and has endured financial loss, domestic strain, employment frustrations and the shame of the conviction and the BCD. His Vietnam tour carried not only the usual dangers but also the traumatic and demoralizing job of photographing the victims of air crashes over there. This led to his seeking psychiatric help and, although he was diagnosed with post-traumatic stress disorder (PTSD), he was returned to work. Young men that ran off to Canada to avoid this unpopular war have been forgiven but the applicant, who did his “patriotic chore,” is condemned for life unless the Board intervenes. Counsel explains why the Board should grant relief even though in 1996 the Air Force Discharge Review Board (AF/DRB) did not. The applicant’s misconduct over 20 years ago was obviously an aberration. He has been an extremely hard-working model citizen, normally working two jobs to support his family. Counsel pleads that after all this time, compassion should be shown to this very decent man.

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

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STATEMENT OF FACTS:

The applicant enlisted in the Regular Air Force on 6 Dec 67 and was ultimately promoted to the grade of technical sergeant (TSgt) effective 30 Nov 80. During the period in question, he was a medical photographer assigned to the Armed Forces Institute of Pathology at Walter Reed Regional Medical Center (WRRMC). His duties included making a photographic record of fatalities at accident sites and subsequent autopsies. He also served as an investigative photographer for the National Transportation Safety Board in the event of a major civil aircraft accident. The applicant’s performance reports are at Exhibit B. [Note: The applicant’s records do not have the original performance reports, only photocopies of the front pages.] Among the applicant’s decorations are the Air Force Commendation Medal with One Oak Leaf Cluster, National Defense Service Medal, Vietnam Service Medal, Air Force Good Conduct Medal with Three Oak Leaf Clusters, Republic of Vietnam Gallantry Cross with Palm, and Republic of Vietnam Campaign Medal.

A 25 Aug 83 narrative summary by the Malcolm Grow USAF Medical Center at Andrews AFB, MD, reveals that the applicant was hospitalized from 19 Jul to 12 Aug 83 at the Psychiatric Service of WRRMC for PTSD. On 25 Aug 83, he was referred to Malcolm Grow for a profile evaluation on an outpatient basis and was hospitalized for diagnostic reevaluation and final disposition. The applicant had been experiencing stress associated with prolonged work with dead bodies and the termination of his first marriage, remarriage and separation. His job and family difficulties led to progressive exacerbation of anxiety, sadness, irritability and frustration when he was taken to court in 1982 because of “bad checks.” He developed memory lapses, recurrent nightmares about Vietnam, negative attitude, and suicidal/homicidal ideation. The applicant apparently had also been under OSI investigation since Feb 83, which added to his problems. The applicant was integrated into the community program and recovered with individual, recreational, occupational and group therapies. He did not receive psychotropic medications and there was no evidence of psychotic or neurotic deterioration, intellectual limitations, alcohol/drug abuse, or major depressive illness. Diagnosis was adjustment disorder with mixed emotional features, acute, severe, recovered. He was found worldwide qualified with no psychiatric disorder warranting medical action.

On 22 Dec 83, the applicant requested discharge in lieu of trial by court-martial and the institute director recommended approval. However, the request was disapproved and the applicant stood trial by SCM on 5 Jan 84 at Andrews AFB for five specifications of making a false claim against the government. He pled guilty and was found guilty of the following:

	1.  Did, at Bolling AFB, DC, on or about 14 May 81, present a travel voucher in the amount of $50.12, which was false in that he knew no temporary duty (TDY) travel was performed.

	2.  Did, at Bolling AFB, DC, on or about 30 Jun 82, present a travel voucher in the amount of $72.80, which was false in that he knew vicinity taxicabs were not used and were not a necessary expense of official travel.

	3.  Did, at Bolling AFB, DC, on or about 4 Aug 82, present a travel voucher in the amount of $462.80, which was false in that he knew taxicabs were not used and were not a necessary expense of official travel.

	4.  Did, at Bolling AFB, DC, on or about 13 Sep 82, present a travel voucher in the amount of $198.00, which was false in that he knew taxicabs were not used and were not a necessary expense of official travel.

	5.  Did, at Bolling AFB, DC, on or about 12 Nov 82, present a travel voucher in the amount of $114.55, which was false in that he knew vicinity taxicabs were not used and were not a necessary expense of official travel.

The sentence was a BCD, confinement at hard labor for three months, forfeiture of $100.00 per month for three months and reduction in grade from TSgt to airman first class. After announcing sentence, the military judge stated his recommendation that the BCD and that two-grades of the reduction be suspended for a six-month period.

A clemency interview was conducted on 13 Jan 84 at the Andrews AFB Legal Office. The Assistant Staff Judge Advocate noted the applicant seemed confused and troubled by his punishment, feeling it was more severe than the offense. The applicant’s financial situation deeply distressed him and he wanted to finish his career with the Air Force. Several post-trial clemency evaluations were submitted and, while some recommendations were mixed, the majority recommended the trial recommendations of clemency be accepted. 

The staff judge advocate’s review of the SCM on 20 Mar 84 found the sentence within legal limits and the punitive separation appropriate.

On 23 Mar 84, the SCM military judge recommended that suspension of the BCD and two-grade reduction be approved. The judge indicated he was particularly impressed by the obvious stress in the applicant’s work environment, adding the military physicians who testified made the fact of this stress clear. The physicians further testified that there was no formalized program designed to assist these medically untrained photographers in coping with the stress of dealing with burned, dismembered and decaying bodies and body parts. An additional factor in the judge’s recommendation was the immediate response, no-questions-asked nature of the applicant’s job. The judge felt the sentence was appropriate for the offenses, but the obvious mitigating and extenuating evidence presented made it clear to him that the recommended suspension was appropriate. 

The 2 Apr 84 addendum to the staff judge advocate’s review disagreed with the SCM military judge and adhered to his original recommendation that the sentence as adjudged be approved. On 3 Apr 84, the sentence was affirmed but the forfeitures of $100.00 per month for three months would apply only to pay becoming due on or after the date of the convening authority action.

On 3 Apr 85, after 17 years, 3 months, 27 days of active service, the applicant was discharged in the grade of airman first class with a BCD for conviction by court-martial.  He was issued an RE code of “2B” (involuntarily separated with a general or under-other-than-honorable-conditions (UOTHC) discharge).

On 5 Dec 96, the applicant appealed to the Air Force Discharge Review Board (DRB). However, after a personal hearing, the DRB denied the applicant’s requests for an honorable discharge and a change of narrative reason and RE code. Two of the DRB members voted to upgrade the applicant’s BCD to an under-other-than-honorable-conditions (UOTHC) discharge. The majority found insufficient mitigation to substantiate granting the applicant clemency.

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AIR FORCE EVALUATION:

HQ AFPC/DPPRS believes the discharge was consistent with the procedural and substantive requirements of the discharge regulation. Additionally, the discharge was within the discretion of the discharge authority.  The DRB stated that the BCD was a punitive discharge resulting from an SCM, and the only basis for changing a BCD is clemency, for which there was insufficient basis in this case. The applicant has not identified any errors or injustices or submitted any new evidence or other facts warranting an upgrade. Denial is recommended.

A complete copy of the evaluation is at Exhibit C.

HQ AFPC/DPPAE advised that the RE code the applicant received is correct. [Note: The definition for 2B is actually “Involuntarily Separated with a General or UOTHC Discharge” - See Statement of Facts.]

A complete copy of the evaluation is at Exhibit D.
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APPLICANT'S REVIEW OF AIR FORCE EVALUATION:

Counsel indicates he will not reiterate clemency issues already addressed in the application. As for timeliness, counsel and the applicant rely on the mercy of the Board. The 3-2 vote to deny by the DRB in 1996 was demoralizing. That, combined with financial limitations, were the main reasons the applicant delayed appealing to the Board. The applicant stole because he and his family were in desperate financial straits. The applicant has since spent the past 21 years leading an honest, very hard-working life. Counsel includes a handwritten statement from the applicant to illustrate how decent, hardworking, and kind his client is. The supporting statements show the applicant has walked the straight-and-narrow for over two decades under very difficult circumstances. Counsel asks the Board to especially note the judge, who was the chief judge of the circuit, recommended suspension of the BCD and the two-grade reduction, but neither form of clemency was extended. There is no benefit to anyone to continue this punishment; the applicant has been punished enough and paid his debt to society. His client is only asking for his discharge to be upgraded and recategorized; he is not asking for service credit, retirement or back pay. Counsel prays that clemency be extended to his client.

In the attached statement, the applicant indicates he would appreciate an upgrade to a general discharge if honorable was not possible. He has worked hard for what he has, sometimes working at two or three jobs at a time just to maintain himself. He’s truly sorry for what he did and apologizes to those he hurt.

A complete copy of counsel’s response, with attachment, is at Exhibit G.

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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.	Sufficient relevant evidence has been presented to demonstrate the existence of error or injustice to warrant partial relief. The Board took special note that the SCM military judge recommended the BCD and the two-grade reduction be suspended for six months, and that the applicant was hospitalized for PTSD, primarily as a result of his occupation. We agree with the judge that the stress created by the applicant’s often horrific duties as a medical photographer was clearly mitigating.  We were also impressed by the applicant’s more than 17 years of generally excellent duty performance and the fact that he accepted responsibility for his infractions by pleading guilty. Further, the applicant appears to have rehabilitated himself into a dependable, hard-working citizen. We agree that relief is warranted, but the majority of the Board believes the discharge characterization should be upgraded to general, rather than honorable. In this regard, the Board majority is not persuaded that the above factors completely overcome the seriousness of the applicant’s misconduct. He fraudulently submitted false travel vouchers on five occasions over a six-month period, for a total of nearly $900. Nevertheless, we applaud the applicant’s determination to rise above his many difficulties, as evidenced by the active duty and post-service letters of support. While the BCD may have been appropriate at the time, we believe he should not continue to suffer its stigma. The Board majority therefore concludes that an equitable form of clemency would be to upgrade the applicant’s 1985 BCD to a general discharge, and this we so recommend. 

4.	The applicant’s request for a “neutral” RE code was noted. However, as the “2B” RE code the applicant currently has is used for individuals involuntarily separated with a general or UOTHC discharge, and we are recommending his BCD be upgraded to general, his existing RE code is accurate and no change is necessary. He has provided no compelling basis for us to recommend further amendment.

5.	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 issue(s) involved. Therefore, the request for a hearing is not favorably considered.

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THE BOARD RECOMMENDS THAT:

The pertinent military records of the Department of the Air Force relating to APPLICANT be corrected to show that, on 3 April 1985, he was discharged with service characterized as general (under honorable conditions).

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The following members of the Board considered this application in Executive Session on 3 September 2003 under the provisions of AFI 36-2603:

			Panel Chair
			Member
			Member

By a majority vote, the Board recommended the applicant’s BCD be upgraded to general. Mr. Petkoff voted to upgrade the discharge 
to honorable, but does not wish to submit a Minority Report. The following documentary evidence relating to AFBCMR Docket Number BC-2003-00805 was considered:

	   Exhibit A.  DD Form 149, dated 9 Feb 03, w/atchs.
	   Exhibit B.  Applicant's Master Personnel Records.
	   Exhibit C.  Letter, HQ AFPC/DPPRS, dated 10 Apr 03.
	   Exhibit D.  Letter, HQ AFPC/DPPAE, dated 21 May 03.
	   Exhibit E.  Letter, SAF/MRBR, dated 30 May 03.
	   Exhibit F.  Letter, AFBCMR, dtd 25 Jun 03.
	   Exhibit G.  Letter, Counsel, dated 16 Jul 03, w/atch.

                                   
                                   Panel Chair

AFBCMR BC-2003-00805

MEMORANDUM FOR THE CHIEF OF STAFF

	Having received and considered the recommendation of the Air Force Board for Correction of Military Records and under the authority of Section 1552, Title 10, United States Code (70A Stat 116), it is directed that:

	The pertinent military records of the Department of the Air Force relating to XXXXX, be corrected to show that, on 3 April 1985, he was discharged with service characterized as general (under honorable conditions).

                                                                          
                                                                          Director
                                                                          Air Force Review Boards Agency