RECORD OF PROCEEDINGS
         AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS

IN THE MATTER OF:	DOCKET NUMBER:  BC-2004-02738
		INDEX CODE:  A74.00

		COUNSEL:  

		HEARING DESIRED:  YES

MANDATORY CASE COMPLETION DATE:  6 Mar 06

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APPLICANT REQUESTS THAT:

His Under Other than Honorable Conditions (UOTHC) discharge be upgraded and his narrative reason for separation be changed.

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APPLICANT CONTENDS THAT:

His emotional state when he entered active duty in the Air Force contributed to his misuse of prescription medicine.  His condition justified and required rehabilitation which he had requested from his commander, but his request was denied.  To avoid the stigma of a criminal conviction, he requested discharge in lieu of court-martial and was quickly sent on his way to continue his abuse of the pain killers he relied on to survive his grief, depression, and despair.

In support of his appeal, the applicant provided a counsel’s brief, a personal statement, and other documents associated with the matter under review.

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

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STATEMENT OF FACTS:

Applicant’s available military personnel records indicate he was appointed a major, Reserve of the Air Force (Medical Corps), on 26 Feb 80 and was voluntarily ordered to extended active duty on 26 Mar 80.

On 21 Jan 81, court-martial charges were preferred against the applicant for numerous drug offenses.  On 27 Feb 81, he voluntarily tendered his resignation from all appointments in the Air Force in lieu of trial by court-martial.

On 13 Mar 81, the Office of the Staff Judge Advocate (Air University) recommended the applicant’s request for resignation in lieu of trial by court-martial be disapproved and he be tried by general court-martial.

On 20 Mar 81, the Commander, Air University (AU/CC), recommended the applicant’s request for resignation in lieu of trial by court-martial be approved.

On 29 May 81, the applicant was discharged under the provisions of AFR 36-12 (Voluntary Resignation - Conduct Triable by or in Lieu of Court-Martial) and was furnished a UOTHC discharge.  He was credited with three years, two months, and four days of total active service.

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AIR FORCE EVALUATION:

The Medical Consultant recommended denial noting the applicant’s voluntary resignation was accepted and he was discharged with a UOTHC characterization of service.  The evidence of record clearly documents repeated misconduct in the procurement by deception and abuse of narcotics and other controlled medications.  Conviction by court-martial would have resulted in far more restrictive consequences with respect to employment as a physician than a UOTHC administrative discharge.  The applicant in his statement notes that no notification of state medical boards was made at the time of his discharge.  Under current Air Force policies, such notification is possible since parallel administrative action with respect to clinical privileges occurs under these circumstances.  The applicant asserts that he was unjustly and improperly denied drug rehabilitation.  Evidence of the clinical record indicated he was not considered a suitable candidate for the inpatient alcohol rehabilitation program since he did not appear to have an alcohol abuse problem.  He was instead recommended for outpatient drug rehabilitation and documentation in the personnel file indicated he enthusiastically participated and progressed satisfactorily in that program.  He stated that to avoid the stigma of a criminal conviction he requested the resignation in lieu of court martial and was quickly sent on his way.  The Air Force was under no obligation to retain him in order to provide continued rehabilitation for drug abuse, a problem and its roots the evidence of record indicated he brought into the Air Force.  Retention of the applicant on active duty was inconsistent with Air Force policy then as it is today.  The evidence of record showed the applicant demonstrated excellent progress in rehabilitation while still on active duty and, therefore, possessed sufficient insight into his problem to have the capacity to choose to seek continued rehabilitation once separated.  In fact, in his letter requesting resignation in lieu of court martial, he indicated he had already made arrangements for continued rehabilitation following separation.  In his statement accompanying the application for correction, he stated that he sought rehabilitative services through programs specifically for impaired physicians and indicated this was ultimately successful.  His curriculum vitae reflected a successful medical career in physical medicine and rehabilitation following his discharge.

According to the Medical Consultant, there is no medical basis upon which to consider an upgrade of the applicant's discharge.  In his opinion, the evidence of record shows the applicant was afforded prompt and appropriate rehabilitative services as well as compassionate consideration resulting in acceptance of his resignation in lieu of trial by court martial.  The action and disposition in this case were proper and equitable reflecting compliance with Air Force directives that implement the law, and no change in the records is warranted.

A complete copy of the Medical Consultant’s evaluation is at Exhibit C.

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APPLICANT'S REVIEW OF AIR FORCE EVALUATION:

A copy of the Air Force evaluation was forwarded to applicant on 25 May 05 for review and response.  As of this date, no response has been received by this office (Exhibit D).

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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.  The evidence of record reflects the applicant was discharged with a UOTHC discharge after submitting his resignation in lieu of trial by court-martial after charges were preferred against him for numerous drug offenses.  As a physician, he had procured by deception and abused narcotics and other controlled medications.  No evidence has been presented which would lead us to believe his discharge was improper or contrary to the directive under which it was effected.  Notwithstanding this, it appears there were mitigating circumstances that may have contributed to the applicant’s misconduct.  It also appears he has made great strides in overcoming the problems that resulted in his misconduct and ultimate discharge, and has made a successful transition to civilian life.  We believe that to continue to stigmatize him with a UOTHC would be unduly harsh and serves no purpose.  Therefore, we are of the opinion that upgrading the applicant’s discharge and changing his reason for separation, based on clemency, would be appropriate in this case.  Accordingly, we recommend the applicant’s UOTHC discharge be upgraded to general and his narrative reason for separation be changed to “Voluntary Resignation:  Miscellaneous Reasons," with a separation code of “FND.”

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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 29 May 81, he was discharged under the provisions of AFR 36-12 (Voluntary Resignation:  Miscellaneous Reasons) with service characterized as general (under honorable conditions) and a separation code of “FND.”

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The following members of the Board considered AFBCMR Docket Number BC-2004-02738 in Executive Session on 28 Jun 05, under the provisions of AFI 36-2603:

All members voted to correct the records, as recommended.  The following documentary evidence was considered:

     Exhibit A.  DD Form 149, dated 30 Aug 04, w/atchs.
     Exhibit B.  Applicant's Master Personnel Records.
     Exhibit C.  Letter, Medical Consultant, dated 24 May 05.
     Exhibit D.  Letter, SAF/MRBR, dated 25 May 05.

                                   

AFBCMR BC-2004-02738

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 , be corrected to show that on 29 May 81, he was discharged under the provisions of AFR 36-12 (Voluntary Resignation:  Miscellaneous Reasons) with service characterized as general (under honorable conditions) and a separation code of “FND.”