RECORD OF PROCEEDINGS
AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS

IN THE MATTER OF:	DOCKET NUMBER:  BC-2003-03246
		INDEX CODE:  110.00

		COUNSEL:  NONE

		HEARING DESIRED:  NO

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APPLICANT REQUESTS THAT:

His general (under honorable conditions) discharge be changed to a disability discharge.

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APPLICANT CONTENDS THAT:

He desires a disability discharge.

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 19 February 2002 in the grade of airman basic for a period of six years.

On 3 October 2002, the applicant was notified of his commander's intent to impose nonjudicial punishment upon him for the following:  He did, at or near Lackland Air Force Base, Texas, on or about 16 September 2002, with intent to deceive, falsely alter a WHMC Form 3530, Training Temporary Duty Restriction Form, to wit: adding the words bed rest, which conduct was prejudicial to good order and discipline.

The applicant waived his right to court-martial proceedings and accepted nonjudicial punishment proceedings; he did not consult a lawyer, and did not submit a written presentation.

He was found guilty by his commander who imposed the following punishment: a forfeiture of $257.00 pay.

The applicant did not appeal the punishment.  The Article 15 was filed in his Unfavorable Information File (UIF).

On 2 December 2002, the applicant underwent corrective left shoulder surgery.  During technical training, the applicant experienced chronic left shoulder laxity with complaints of pain and recurrent movement out of joint following an undocumented injury at the end of basic training.

On 7 January 2003, the applicant was notified of his commander's intent to initiate discharge action against him for Commission of a Serious Offense.  Specifically, on 9 November 2002, an investigation revealed that on 28 November 2002, he consumed alcohol while under the legal drinking age of 21, and knowingly used an altered Military Identification Card to purchase alcohol.  As a result, he received a Letter of Reprimand (LOR), dated 10 December 2002.

The commander advised the applicant of his right to consult legal counsel and to submit statements in his own behalf; or waive the above rights after consulting with counsel.

The applicant waived his right to consult legal counsel and to submit statements in his own behalf.

On 10 January 2003, the applicant was served an addendum to the notification memorandum which included the 3 October 2002 Article 15, and changed the basis for the discharge to Minor Disciplinary Infractions.

The commander advised the applicant of his right to consult legal counsel and to submit statements in his own behalf; or waive the above rights after consulting with counsel.

The applicant waived his right to consult legal counsel and to submit statements in his own behalf.

On 23 January 2003, the Acting Staff Judge Advocate recommended the applicant be discharged with a general (under honorable conditions) discharge without probation and rehabilitation.

On 30 January 2003, a Line of Duty Determination, AF Form 348, indicated the applicant dislocated his left shoulder during basic training.  He never sought medical attention at that time.  He was able to pop it back in place and took Motrin for pain.  He stated he did not have any further problems with his shoulder, which he attributes to the number of push-ups required in the security forces training school.  Due to continued complaints, he was referred to physical therapy and orthopedics whom eventually operated on his shoulder.  On 6 February 2003, as a result of the investigation, the commander determined the injury was in the line of duty.

On 26 February 2003, a Narrative Summary indicated the applicant traumatically dislocated his left shoulder in April 2002.  He had recurrent subluxations and dislocations since that time.  He tried several courses of therapy targeted at strengthening his rotator cuff, but was unsuccessful.  After discussing all of the risks, benefits, and alternatives to the planned procedure, which included a diagnostic shoulder arthroscopy followed by an anterior capsular shift, he elected to have the procedure.  The Narrative Summary further indicated it was recommended the applicant be granted either separation with instructions to return to active duty after resolution of his problem or placed on the temporary disability retired list (TDRL) pending resolution of his symptoms.

On 5 March 2003, a commander’s evaluation indicated the applicant had not been able to perform the necessary security forces training requirements in such a manner as to reasonably fulfill the purpose of his employment on active duty.  He was pending administrative action that would result in dismissal from the Air Force.  He further indicated it was in the best interest of the Air Force that the applicant not be retained.

On 6 March 2003, a Medical Board Report indicated the applicant was found to have status post (S/P) left shoulder anteroinferior capsular shift for traumatic dislocation, 1 April 2002, (right hand dominate).  It was determined the injury existed prior to service.  It was recommended the applicant return to duty.

The case was forwarded on 19 March 2003, the findings and recommended disposition of the Informal Physical Evaluation Board (IPEB) indicated the applicant was diagnosed with category I - unfitting conditions which were compensable and ratable - Left shoulder chronic pain and anteroinferior capsular shift secondary to traumatic dislocation during basic military training spontaneously relocation in shoulder socket.  It was determined the applicant was unfit because of a physical disability and the disability was incurred in the line of duty.  It was recommended the applicant be discharged with severance pay with a disability rating of 10 percent.

On 31 March 2003, the discharge authority approved applicant’s discharge and that same day, the applicant was discharged with a general (under honorable conditions) discharge, in the grade of airman first class (A1C), under the provisions of AFI 36-3208 (Misconduct).  He served a total of 1 year, 1 month, and 13 days of active military service.

On 7 May 2003, HQ AFPC/DPPD advised the applicant of an error in his release from active duty and provided him an opportunity to apply for correction of the error.  They indicated he was in disability channels at the time of his release from active duty.  He was being offered discharge with severance pay by the Informal Physical Evaluation Board (IPEB), but was erroneously discharged prior to finalization of his disability case.  His administrative separation package and his disability case should have been forwarded to the Secretary of the Air Force Personnel Council (SAFPC) for adjudication.  They believe he should be given the opportunity to apply to the Air Force Board for Correction of Military Records (AFBCMR).

On 6 January 2004, AFPC/DPPD indicated in a letter to SAFPC/AFPB the disability processing records revealed a Medical Evaluation Board (MEB) was initiated on 6 March 2003, and the results referred to the IPEB for adjudication of the case.  The Board determined his chronic pain in his left shoulder as unfitting for continued military service and recommended he be discharged with entitlement to severance pay with a 10 percent disability rating.  The applicant agreed with the IPEB’s findings and recommendation and was briefed of his rights by the Physical Evaluation Board Liaison Officer (PEBLO).  They were notified the applicant had been released from active duty and all disability-processing actions were ceased.  They recommended SAFPC adjudicate the applicant’s records as a dual action case to determine which action SAFPC wished to pursue to be finalized.

On 12 February 2004, SAFPC advised there was no cause or mitigating relationship between the applicant’s medical condition and the minor disciplinary infractions he committed and therefore, advised the previous AFI 36-3208 action should remain the same.

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AIR FORCE EVALUATION:

AFPC/DPPD recommended denial.  They highly recommend the AFBCMR support the SAFPC’s decision, dated 12 February 2004, and the administrative discharge action under AFI 36-3208 remain firm.

The evaluation, with attachments, is at Exhibit C.

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APPLICANT'S REVIEW OF AIR FORCE EVALUATION:

On 27 February 2004, a copy of the Air Force evaluation was forwarded to the applicant for review and response within 30 days.  As of this date, no response has been received by this office.

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ADDITIONAL AIR FORCE EVALUATION:

The BCMR Medical Consultant recommended denial.  He indicated an MEB was initiated following initiation of administrative discharge action for misconduct.  Evaluation in the disability system concluded with a recommendation for disability discharge with severance pay; however, the administrative discharge was executed without consideration by the SAFPC as a dual action case.

Members who are pending separation under provisions that authorize a characterization of service of UOTHC, even if the actual characterization that the member receives is general are not eligible for referral into the Disability Evaluation System (DES) unless the medical impairment or extenuating circumstances may be the cause of the misconduct.  At the time of initiation of the MEB, the applicant was pending an administrative discharge for misconduct under provisions that authorized a UOTHC.

When an airman is the subject of involuntary discharge for misconduct and may also be eligible for disability separation or disability retirement, action is required by the Secretary of the Air Force Personnel Council to determine under which basis for discharge the airman will be separated.  It appears that an error may have been made by discharge without dual action processing of this case.

There is no evidence the applicant’s medical condition caused or mitigated his misconduct.  Although an error may have occurred, it does not appear the applicant’s rights were prejudiced, as the discharge would have remained the same if the error had not been made.  The Secretary of the Air Force Personnel Council found his medical condition did not cause his misconduct.

Although there appears to have been an error, there is no evidence of an injustice, as the outcome, discharge for misconduct, would still have been the same if the case were processed as a dual action case.

The evaluation, with attachments, is at Exhibit C.

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APPLICANT'S REVIEW OF AIR FORCE EVALUATION:

On 20 May 2004, a copy of the Air Force evaluation was forwarded to the applicant for review and response within 30 days.  As of this date, no response has been received by this office.

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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 an injustice.  We note at the time the applicant was administratively separated from active duty, he was being processed through disability channels but was discharged prior to finalization of his disability case.  The applicant’s case should have been forwarded to the Secretary of the Air Force Personnel Council (SAFPC) for final adjudication of this “dual action” case.  It is important to note while the Personnel Council performs a record review in dual action cases, no personal hearing is involved.  Since the applicant is no longer on active duty, SAFPC does not have the authority to decide the case and correct the record.  Nevertheless, they were asked to advise the Board as to what decision they would likely have reached had the case been referred to them.  In what amounts to an advisory opinion, SAFPC noted there was no causal or mitigating relationship between the applicant’s medical condition and the minor disciplinary infractions he committed, and as such, the previous administrative discharge action should remain in effect.  Therefore, while it appears there was a procedural error in processing the applicant’s discharge, the Board is persuaded the result (discharge not disability separation) would have been the same had the case been referred to SAFPC.  Thus, the failure to refer the case to SAFPC under these circumstances constitutes a harmless error.  In view of the foregoing and in the absence of compelling evidence to the contrary, we find no basis upon which to recommend granting the requested relief.

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THE BOARD DETERMINES THAT:

The applicant be notified that the evidence presented did not demonstrate the existence of an 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-2003-03246 in Executive Session on 14 July 2004, under the provisions of AFI 36-2603:

The following documentary evidence was considered:

   Exhibit A.  DD Form 149, dated      2003, w/atchs.
   Exhibit B.  Applicant's Master Personnel Records.
   Exhibit C.  Letter, AFPC/DPPD, dated 24 February 2004,
			w/atchs.
   Exhibit D.  Letter, SAF/MRBR, dated 27 February 2004.
   Exhibit E.  Letter, BCMR Medical Consultant, dated
               11 May 2004.
   Exhibit F.  Letter, AFBCMR, dated 20 May 2004.