RECORD OF PROCEEDINGS
AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS

IN THE MATTER OF:	DOCKET NUMBER:  BC-2004-00452
		
		COUNSEL:  

	XXXXXXX	HEARING DESIRED:  NO

MANDATORY CASE COMPLETION DATE:  31 AUG 2005

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APPLICANT REQUESTS THAT:

His under other than honorable conditions discharge be upgraded to general (under honorable conditions) for medical reasons.

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APPLICANT CONTENDS THAT:

His service medical records show he suffered two (2) seizures in 1981 and that he was diagnosed with epilepsy, but he was not aware that he had been diagnosed as epileptic until 29 August 2002, when he received the Department of Veterans Affairs-Rating Decision-stating such.  For this he believes his discharge to be in error primarily due to medical reasons.

In support of his request, applicant provided a copy of DD Form 293, DD Form 214 and a letter from Department Veteran Affairs (VA) Waco, TX.  

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

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STATEMENT OF FACTS:

Applicant enlisted in the Regular Air Force on 10 February 1981 for a period of four years. On 8 September 1981, court-martial charges were preferred against the applicant for issuing 12 insufficient fund checks.  

On 18 October 1981, a mental health evaluation rendered diagnosis of antisocial personality disorder and concluded that the applicant did not have a mental disease or defect which caused him to lack the substantial capacity to know right from wrong and to conform to the law.  The evaluation also concluded that the applicant "has no psychiatric disorder warranting action under the provisions of AFR 35-4" (i.e. did not warrant referral for medical evaluation board).  He was placed in pre-trial confinement in early November 1981. 

On 12 November 1981, applicant submitted a request for discharge for the good of the service and understood that if his request for discharge was approved he could receive an under other than honorable conditions (UOTHC) discharge.  He was afforded the opportunity to consult with legal counsel prior to submitting the request for discharge.  The base legal office reviewed the case and found it legally sufficient and recommended the applicant's request for discharge for the good of the service be approved and that he be issued an UOTHC discharge. The discharge authority approved the applicant's request for discharge for the good of the service, in lieu of trial by court-martial. 

On 1 December 1981, the applicant was notified of his commander’s intent to impose nonjudicial punishment for an alleged violation of Article 134, breaking restriction. After consulting counsel, the applicant waived his right to demand trial by court-martial and accepted nonjudical punishment.  He made a personal appearance and submitted a written presentation. 

On 21 December 1981, the commander found that the applicant had committed the offense alleged and imposed punishment of reduction to airman basic.  The applicant did not appeal either the finding or punishment.

Applicant was separated on 27 January 1982 under the provisions of AFM 39-12, Separation for Unsuitability, Misconduct, Resignation, or Request for Discharge for the Good of the Service and Procedures for the Rehabilitation Program, with an under other than honorable conditions (UOTHC) discharge, after serving 11 months and 18 days of total active military service.    
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AIR FORCE EVALUATION:

AFPC/DPRRS recommended denial and stated that based on the documentation on file in the master personnel record, the discharge was within the discretion of the discharge authority. Applicant did not submit any evidence or identify any errors of injustices that occurred in the discharge processing.  He provided no facts warranting a change to the character of service.

AFPC/DPRRS complete evaluation in at Exhibit C.

The BCMR Medical Consultant recommended denial and stated that the evidence of the record indicates that the applicant was not referred for medical evaluation board. Because the condition had existed for several years prior to service, had not worsened, and evaluation yielded normal results, it was reasonable for the neurologist to not make such a recommendation in the context of a pending involuntary discharge. In order for an enlisted member who is undergoing involuntary separation with an imminent date of separation to undergo medical evaluation board, placement on "medical hold" is necessary. The authority to grant medical hold under these circumstances rested with Medical Standards at the Air Force Military Personnel Center (AFMPC) and was only granted in cases that warranted termination of active duty through the disability evaluation system. Conditions that existed prior to entry onto active service that were not permanently aggravated by service did not warrant disability discharge (resulted in discharge under administrative provisions) and would be denied medical hold by AFMPC. Medical disqualification did not pre-empt discharge for other reasons. Had the applicant been referred and processed through the disability evaluation system, the evidence strongly supports a conclusion that the Physical Evaluation Board would have concluded the applicant's condition existed prior to service, was not permanently aggravated by service, and returned the applicant for administrative processing.

Air Force policy at the time of the applicant's discharge (AFM 39-12, AFR 35-4, AFR 160-43) indicated that members undergoing administrative discharge for misconduct could be referred for evaluation in the disability evaluation system if there was a medical condition present that warranted such referral. If referred, and evaluation by the Physical Evaluation Board concluded with a finding of unfit, the case was then sent for review by the Air Force Personnel Council as a "dual action" case. The Air Force Personnel Council then determined under which basis for discharge the airman would be separated, misconduct or disability. Today, unless the medical disability is the clear cause of the misconduct, rendered the member legally insane, or was of such a compelling and devastating nature, the Personnel Council consistently decides to separate based on the misconduct.
Although the applicant's condition could have resulted in evaluation in the disability evaluation system, there is no evidence of an injustice, as the outcome, discharge for misconduct, would still have been the same as if the case were processed as a dual action case. The Secretary of the Air Force Personnel Council, finding that his existing prior to service medical condition did not cause his misconduct and was not of a devastating nature, would clearly have directed discharge for misconduct with a UOTHC.

BCMR Medical Consultant’s complete evaluation is at Exhibit D.
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APPLICANT'S REVIEW OF AIR FORCE EVALUATION:

The applicant reviewed the Air Force evaluations and stated that the seizures he suffered occurred while still under active duty status and in no way any fault of his own.  The medical development was supposed to be processed medically as well, but was not.  As stated, “There is no documentation present in the case file that the applicant underwent medical evaluation board processing or dual action processing.” Also, a neurologist stated, “Cannot conclude that this patient in fact has epilepsy.” Yet in a Veterans Administration Rating Decision, under title Reasons and Bases, it is reported and shows “Service records show veteran suffered two seizures in 1981, and was diagnosed with epilepsy.  

The original purpose for the Article 15 was because of his immaturity and insufficient fund checks, however, what the file does not show is that he accepted responsibility for his actions and successfully served out a three year probated sentence and repaid all monies and penalties for said actions.  

He never knew when or where he would have a seizure, but when he did, not only did he put himself at risk, but anyone who was within his space, whether it was while he was driving, working, or just socializing.  He prays this Board considers the seriousness of this disability and the risks that accompany it, and grant his request for change of character to his current discharge to general (under honorable conditions)-medical.

Applicant’s complete response is at 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.  After careful consideration of the applicant’s request and the available evidence of record, we see no evidence of an error or injustice that would warrant a change in his discharge.  We agree with the opinions and recommendations of the Air Force offices of primary responsibility and adopt their rationale as the basis for our conclusion that the applicant has not been the victim of an error or injustice.  Therefore, in the absence of persuasive evidence to the contrary, we find no compelling basis to recommend granting the relief sought in this application.
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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 Docket Number BC-2004-00452 in Executive Session on 26 April 2005, under the provisions of AFI 36-2603:

The following documentary evidence was considered:

    Exhibit A.  DD Form 149, dated 3 Feb 04, w/atchs.
    Exhibit B.  Applicant's Master Personnel Records.
    Exhibit C.  Letter, AFPC/DPPRS, 21 Jun 04.
    Exhibit D.  Letter, BCMR Medical Consultant, dated 15 Feb 05.
    Exhibit E.  Letter, SAF/MRBR, dated 23 Feb 05.
    Exhibit F.  Applicant’s Response, dated 7 Mar 05

                                   Panel Chair