RECORD OF PROCEEDINGS
AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS

IN THE MATTER OF:	DOCKET NUMBERS:  BC-2003-03093
		INDEX CODE 106.00
	 	COUNSEL:  None

	 	HEARING DESIRED:  No

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APPLICANT REQUESTS THAT:

The applicant indicates in his appeal that he is not sure what he is asking for but, essentially, he appears to want his 2003 bad conduct discharge (BCD) upgraded to a general discharge and he receive retirement and full Department of Veterans Affairs (DVA) benefits.

[Note: As discussed in the AFLSA/JAJM advisory, the Board cannot reverse, set aside, or otherwise expunge a court-martial conviction that occurred on or after 5 May 50; only the sentence can be changed.]

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APPLICANT CONTENDS THAT:

He is not questioning his guilt of the offenses but believes there was injustice regarding perjury by a prosecution witness, the assault charge, and actions by the defense and trial counsels. He had 110% honorable service until his depression. He used alcohol and drugs to self-medicate his depression, which was exacerbated by legal, financial and marital problems. His head injury in an auto accident also contributed to his misbehavior.

The applicant’s complete submissions, with attachments, are at Exhibit A. 

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STATEMENT OF FACTS:

The applicant’s military service records are, in some instances, incomplete and/or virtually illegible.  The following available and decipherable information is provided below.

The applicant enlisted in the Regular Air Force on 12 Feb 81. Over his career, he had tours in Kunsan AB, Korea and Misawa AB, Japan. His last two assignments were with the ---------------- -------- at Misawa AB, Japan, and the ---------------------- at Cannon AFB, NM.

His enlisted performance reports (EPRs) through Sep 99 reflect excellent duty performance. However, prior to his conviction by court-martial in 2001, he had received nonjudicial punishment on different occasions for various offenses.  

In Dec 81, the applicant received an Article 15 for possession and use of marijuana and was punished with forfeiture, extra duty and a suspended reduction from airman to airman basic.  

In Feb 88, he received an Article 15 for domestic assault and assault on an enlisted member and was punished with forfeiture, restriction, and a suspended reduction from staff sergeant to sergeant. 

In Nov 88, he received an Article 15 for drunk, disorderly and threatening conduct and was punished with forfeiture and a suspended reduction to sergeant. 

The applicant received an Article 15 on 11 Jul 94 for being drunk and disorderly on 26 June 94 and was punished with forfeiture, 45 days of extra duty, and a suspended reduction to senior airman. 

During 1999, while assigned in Japan, the applicant experienced the onset of symptoms of depression and anxiety related to marital discord and separation, financial difficulties, and occupational stress. He was treated with medication and psychotherapy. 

The applicant reenlisted on 25 Jun 99 for five years and was promoted to master sergeant on 1 Jul 99.

The Misawa AB Mental Health Clinic (MHC) diagnosed the applicant with major depression in Oct 99, and he was placed on profile for this condition through 13 Sep 00.

He was reassigned to Cannon AFB, NM, at the end of 1999, and continued care in the MHC for his symptoms of depression and anxiety. In the spring of 2000, he reported an episode of amnesia regarding an altercation with his live-in girlfriend and difficulties with short-term memory loss. 

The applicant received another Article 15 in 22 May 00 for failing to go to a medical appointment on 9 May 00 and was reduced from master sergeant to technical sergeant. 

A 1 Jun 00 evaluation at the Texas Tech University School of Medicine, Department of Neuropsychiatry and Behavioral Sciences, found no evidence of organic brain disease and felt the applicant had an atypical, treatment-resistant depression.  

On 19 Jun 00, the applicant underwent surgery at the University of NM Hospital for cervical fractures of the fourth and fifth vertebra. He had sustained these injuries in a single car rollover on 17 Jun 00; he was not intoxicated. Several physicians diagnosed the applicant with a c-spine fracture, compression of the brainstem and cranial nerves, chronic migraines, depression, memory dysfunction, and prolonged insomnia. Some medical documents indicate the applicant suffered a severe head injury in the accident and had a post-concussive syndrome with possible change in his behavior as a result. However, according to the AFBCMR Medical Consultant, the primary medical documents from the University Hospital that cared for the applicant did not appear to indicate a severe head injury. 

The applicant was released from the University Hospital on 5 Jul 00, and returned to military service, where he received outpatient physical/occupational therapy and psychiatric follow-up.

On 15 Aug 00, the Secretary of the Air Force (SAF) found the applicant did not serve satisfactorily in any higher grade than technical sergeant and would not be advanced under the provisions of Title 10, USC, Section 8964.

The applicant apparently was discovered to have used cocaine in Oct 00 and the medical records refer to his incarceration at a local civilian adult detention center from approximately Jan 01 to Apr 01, when he was released from the center. He was found to have been in possession of marijuana in Feb 01 while at the center.

On 11 Apr 01, the applicant was reduced from technical sergeant to staff sergeant as nonjudicial punishment for failure to pay rent and other indebtedness.

On 23 Apr 01, the ----------------- commander requested a sanity board for the applicant, who was facing probable court-martial for suspected wrongful use of cocaine in Oct 00 and wrongful possession of marijuana in Feb 01. Several recent incidents had raised concerns regarding the applicant’s ability to assist in his defense (wandering in the dormitory hall at night, sleeping barefoot in the base post office, talking to himself, and attempting to catch or use nonexistent objectives). Further, the applicant had received extensive treatment for emotional problems in the past and was currently undergoing inpatient treatment and assessment.

The evaluation by the William Beaumont Army Medical Center concluded there was mild residual neuropsychological impairment and resolving post-concussive syndrome with no evidence of continuing organic personality disorder. The final diagnoses included delirium, unknown, unresolved; major depressive disorder; history of alcohol abuse; status post cervical fracture; history of migraines, psychosocial stressors, severe, financial problems, primary support group problems, occupational and legal problems. 

On 29 May 01, the sanity board determined the applicant did not have a severe mental disease or defect. The clinical disorders were depressive disorder, alcohol abuse, and a transient amnestic disorder not otherwise specified, most likely due to alcohol and prescription benzodiazepines. The applicant was found able to assist in his defense.

In a general court-martial on 30 Oct 01, the applicant pled to and was found guilty of the following charges, which were initially preferred on 27 Jun 01:

Wrongful use of cocaine between, on or about 17 and 25 Oct 00; wrongful possession of marijuana on or about 12 Feb 01, wrongful use of cocaine between, on or about 7 and 15 May 01; and, on or about 3 Jul 01, failing to go to his appointed place of duty, unlawfully striking an airman first class on the arm with his leg, assaulting a technical sergeant, and threatening to kill a technical sergeant. 

He was sentenced to a BCD, confinement for 3 years and 9 months with forfeiture of $1,100.00 pay per month for 45 months, and reduction to airman. The sentenced was adjudged on 31 Oct 01. The sentence was approved on 4 Jan 02.  On 11 Jun 02, the Air Force Court of Criminal Appeals (AFCCA) affirmed the findings of guilty and the sentence. The US Court of Appeals for the Armed Forces (USCAAF) denied the applicant’s petition for review on 25 Sep 02.

The applicant was separated in the grade of airman with a BCD on 10 Jan 03 with 20 years, 8 months and 19 days of active service and lost time for the period 31 Oct 01 to 10 Jan 03. The DD Form 214 reflects the applicant had continuous honorable active military service from 12 Feb 81 through 5 Apr 94.  

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AIR FORCE EVALUATION:

The AFLSA/JAJM addresses the applicant’s contentions and further notes, in part, that the maximum punishment authorized for his conviction of multiple counts of drug use, threats to kill a military member, drunkenness, assault, and failure to report to work was a dishonorable discharge, confinement for 18 years and 8 months, forfeiture of all pay and allowances, and reduction to the lowest enlisted grade.  The sentence was well within the legal limits and was an appropriate punishment. While clemency is an option, there is no reason for it to be exercised. There are consequences for criminal behavior, and it would be unjust to change the characterization of the applicant’s service to one that hundreds of thousands of airmen, who have served honorably, also carry. Further, DVA benefits are for veterans who have served honorably, which cannot be said of the applicant. He has provided no evidence of a clear error or injustice related to the sentence. The applicant’s improved conduct regarding his drug addiction does not erase his criminal behavior during his enlistment, which appropriately ended with a BCD. The applicant presents insufficient evidence to warrant upgrading the BCD and does not demonstrate an equitable basis for relief. Denial is recommended.

A complete copy of the evaluation is at Exhibit C.

The AFBCMR Medical Consultant advises that a computed axial scan of the applicant’s head at the time of the accident was normal and an electroencephalogram performed 10 months later was normal, both objective evidence arguing against serious brain trauma or its residuals.  Mild brain injury, concussion, may result in cognitive symptoms, including disturbances in memory and concentration and psychological symptoms, including anxiety and depressed mood. However, it does not result in severe cognitive impairment that renders an individual unable to appreciate the wrongfulness of his/her conduct. These symptoms usually resolve in most individuals over three months and, at the time of the 16 Apr through 3 May 01 evaluation, there was no evidence of organic personality disorder. The preponderance of the evidence indicates that action and disposition in this case were proper and equitable reflecting compliance with directives. Denial is recommended.

A complete copy of the evaluation is at Exhibit D.

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APPLICANT'S REVIEW OF AIR FORCE EVALUATION:

Complete copies of the Air Force evaluations were forwarded to the applicant on 26 May 04 for review and comment within 30 days.  As of this date, this office has received no response.

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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 timely filed.

3.	Insufficient relevant evidence has been presented to demonstrate the existence of error or injustice. The applicant indicates he is unsure what he is asking for, but he appears to want his BCD upgraded to a general discharge with retirement and full DVA benefits. After a thorough review of the evidence of record and the applicant’s submissions, we are not persuaded any changes to his records are warranted. The applicant’s contentions were duly noted; however, we do not find these assertions, in and by themselves, sufficiently persuasive to override the available evidence and the rationale provided by the Air Force legal and medical advisors.  The 2001 sanity board, which was comprised of a psychiatrist and two physicians, determined the applicant did not have a severe mental disease or defect and was able to appreciate the nature and quality, or wrongfulness, of his conduct. The Medical Consultant concluded neither the applicant’s depression nor his accident impaired his ability to know right from wrong and act accordingly. We agree. In this regard, the applicant’s misconduct began as early as 1981, long before his diagnosis of depression in 1999 and his vehicular accident in 2000.  His infractions included assault, threats, and multiple episodes of drug and alcohol abuse. Many military members endure the same problems the applicant encountered but without resorting to criminal or inappropriate behavior. The applicant has provided no persuasive evidence that he was denied due process or that the actions taken against him were inappropriate or unsupported by his own misconduct. We therefore agree with the recommendations of the Air Force and adopt the rationale expressed as the basis for our decision that the applicant has not sustained his burden of having suffered either an error or an injustice. In view of the above and absent persuasive evidence to the contrary, we find no compelling basis to recommend granting relief in this case.

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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 this application in Executive Session on 14 July 2004 under the provisions of AFI 36-2603:

The following documentary evidence relating to AFBCMR Docket Number BC-2003-03093 was considered:

  Exhibit A.  DD Forms 149 (2), dated 10 Aug & 20 Oct 03,
                 w/atchs, Letters, dated 10 Feb & 25 Apr 04, &
                 undated Medical Records Summary, w/atchs.
  Exhibit B.  Applicant's Master Personnel Records.
  Exhibit C.  Letter, AFLSA/JAJM, dated 5 Jan 04.
  Exhibit D.  Letter, AFBCMR Medical Consultant, dated 19 May 04.
  Exhibit E.  Letter, SAF/MRBR, dated 26 May 04.