RECORD OF PROCEEDINGS
AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS

IN THE MATTER OF:				DOCKET NUMBER:  BC-2004-03869
							INDEX CODE:  110.00

							COUNSEL: XXXXX

							HEARING DESIRED:  YES

MANDATORY CASE COMPLETION DATE:  20 JUN 06

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APPLICANT REQUESTS THAT:

His under honorable conditions (general) discharge be upgraded to honorable.

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APPLICANT CONTENDS THAT:

He was discharged unjustly.  He was medically unfit to continue active duty service.  He should have received an honorable discharge under medical conditions.

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

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STATEMENT OF FACTS:

On 15 January 2003, the applicant enlisted in the Regular Air Force (RegAF) as an airman basic (AB) for a period of six years.

On 8 October 2003, the applicant requested an evaluation for Attention Deficit Disorder (ADD).  The medical note states “Pt states he is always moving and doing something with his hands, and his instructors told him to come and be checked for ADD.”  States he was treated from ages 9-11 for it and was medicated with Ritalin.”  The physician determined the applicant had Attention Deficit/Hyperactivity Disorder (ADHD) and referred him for a psychological evaluation.

On 16 October 2003, the applicant was seen at the Life Skills Support Center (LSSC) for an assessment for symptoms consistent with ADHD.

On 20 October 2003, the applicant was diagnosed with ADHD, Combined Type, Adult Persistent and was prescribed Strattera.

On 3 November 2003, a medical note indicates the applicant had some improvement with attention, including the absence of reported disciplinary problems.

The mental health evaluation dated on 14 November 2003, indicated the applicant’s report of symptoms of ADHD since childhood.  The evaluator contacted the applicant’s mother who reported the applicant had a history of having been diagnosed and treated for ADHD since the first grade.  

On 6 May 2004, the applicant was notified of his commander’s intent to recommend him for discharge under the provision of Air Force Instruction (AFI) 36-3208, paragraph 5.49, Minor Disciplinary Infractions.  The specific reasons for the discharge action were:

	a.	On 14 March 2003, the applicant failed a room inspection.  For this misconduct, he received a Letter of Reprimand (LOR).

	b.	On 22 July 2003, the applicant was derelict in the performance of his duties in that he failed to attempt to pass his Electronic Intelligence test.  For this misconduct, he received an Article 15 on 5 September 2003.

	c.	On 30 July 2003, the applicant displayed disrespect to the flag, airmen leader and the uniform.  For this misconduct, he received a Letter of Counseling (LOC).

	d.	On 5 August 2003, the applicant was smoking while in uniform in violation of the phase program.  For this misconduct, he received an Excellence/Discrepancy Report, AETC Form 341 and a Memorandum for Record (MOR) and on 9 August 2003, he was assigned Remedial Military Training (RMT).

	e.	On 14 August 2003, the applicant failed to go to a casual formation.  This was the fourth formation he missed in five months.  For this misconduct, he received two AETC Form 341s and an LOC.

	f.	On 27 October 2003, the applicant received an Article 15 for disobeying a lawful order.

	g.	On 5 February 2004, the applicant received an LOR for making a false official statement and committing conspiracy in violation of Article 92.

In the notification for discharge, the commander cited the following derogatory information:

	a.	On 8 January 2003, the applicant was disrespectful to a fellow airman.  For this misconduct, he received an AETC Form 341.

	b.	On 7 March 2003, the applicant failed to go to physical conditioning (PC).  For this misconduct, he received an AETC Form 341.

	c.	On 19 March 2003, the applicant failed an open ranks inspection of his uniform.  For this misconduct, he received an AETC Form 341.

	d.	On March 2003, the applicant received an AETC Form 341 for being in the day room at 1130 hours wearing half of his uniform, a superman shirt and wearing a large necklace and displaying attitude.

	e.	On 5 April 2003, the applicant received an AETC Form 341 for using a cell phone while in uniform, a violation of the phase program.

	f.  On 14 May 2003, the applicant failed to go to a casual formation.  For this misconduct, he received an AETC Form 341.

	g.	On 22 May 2003, the applicant received an AETC Form 341 for not having his phase card at PC.

	h.	On 24 July 2003, the applicant received an AETC Form 341 for failing a room inspection.

	i.	On 25 July 2003, the applicant failed to go to flag detail.  For this misconduct, he received an AETC Form 341.

	j.	On 4 August 2003, the applicant received an AETC Form 341 for his uniform not being in compliance with AFI 36-2903.

	k.	On 16 September 2003, the applicant received an AETC Form 341 for being disrespectful to a noncommissioned officer and displaying a poor attitude.

	l.	On 22 September 2003, the applicant received an AETC Form 341 for climbing a light pole in the courtyard while dressed as Spiderman and not having any AETC Form 341 on his person.

	m.	The applicant received an AETC Form 341 on 30 September 2003 for being disrespectful to a noncommissioned officer.

	n.	On 9 January 2004, the applicant received an AETC Form 341 for failing a room inspection.

	o.	On 9 February 2004, the applicant received an AETC Form 341 for missing a formation.

The commander advised the applicant of his right to consult legal counsel and that military legal counsel had been obtained for him; submit statements in his own behalf; and that failure to consult counsel or to submit statements would constitute a waiver of his right to do so.

On 12 February 2004, after consulting with counsel, the applicant invoked his right to submit a statement.

A legal review was conducted in which the staff judge advocate recommended the applicant receive a general discharge without probation and rehabilitation.

On 11 May 2004, the discharge authority directed the applicant be discharged with a general discharge without probation and rehabilitation.

Applicant was discharged on 12 May 2004, in the grade of airman first class with an under honorable conditions (general) discharge, in accordance with AFI 36-3208 (Misconduct).  He served 1 year, 3 months and 28 days of active duty service.

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AIR FORCE EVALUATION:

The Chief Medical Consultant, AFBCMR, states the applicant while serving on active duty was diagnosed and treated for ADHD.  The evidence of records indicates the applicant’s ADHD existed since early childhood and had been previously diagnosed and treated.  The evaluating providers determined the applicant’s condition contributed to his pattern of misconduct and based on significant response to medication recommended the applicant be retained on active duty.  However, in the months following the initiation of treatment, the applicant continued a pattern of misconduct which led to an administrative discharge.

The Medical Consultant further states ADHD is a constitutional/developmental condition that is noncompensable under the rules of the disability evaluation system (DES).  It is considered unsuiting and may form the basis for an administrative discharge under the provisions for unsuitability.  Separations under this provision normally afford an honorable characterization of service with a narrative reason for discharge of “personality disorder” and a reenlistment code that bars reenlistment.  The policy outlined in AFI 36-208, paragraph 5.11. Conditions that Interfere with Military Service, specifically states “The existence of a condition that is a basis for discharge under this provision does not bar separation for any other reason authorized in this instruction.  Discharge under this provision is not appropriate if the airman’s record would support discharge for another reason, such as misconduct or unsatisfactory performance.”  The applicant’s condition does not impair his ability to know right from wrong or adhere to the right and therefore is accountable for his behavior.  A review of the applicant’s misconduct finds some of the misconduct can be attributed to or at least in part to his ADHD, but also it finds misconduct that is willful and inconsistent with continued service in the Air Force.  The Medical Consultant concludes that the preponderance of the evidence does not show an error or injustice resulted when the applicant’s commander chose to discharge him under the provisions for misconduct.  Therefore, he recommends the requested relief be denied.

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

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APPLICANT'S REVIEW OF AIR FORCE EVALUATION:

A copy of the Air Force evaluation was forwarded to the applicant on 2 December 2005, for review and response.  As of this date, no response has been received by this office.

On 9 January 2006, the Board staff forwarded a copy of the Air Force evaluation to the applicant’s counsel for review and response.  As of this date, no response has been received.

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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 error or an injustice to warrant upgrading the applicant’s discharge.  We took notice of the applicant's complete submission in judging the merits of the case; however, we agree with the opinion and recommendation of the Medical Consultant and adopt his rationale as the basis for our decision that the applicant has failed to sustain his burden that he has suffered either an error or an injustice.  The applicant’s contention is duly noted; however, he reported during his mental health evaluation that he was diagnosed and treated for ADHD as a child.  The applicant was treated for the ADHD and displayed improvement in symptoms and behavior.  However, in January 2004, he again was being disciplined for a variety of infractions, which led to his commander initiating administrative action for discharge for misconduct.  The applicant’s commander noted the applicant’s diagnosis of ADHD along with the report of a good response to treatment, but concluded the applicant’s continued pattern of misconduct was not caused substantially by his treated medical condition.  Therefore, in the absence of evidence to the contrary, we find no compelling basis to recommend granting the relief sought in this application.

4.	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 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 AFBCMR Docket Number BC-2004-03869 in Executive Session on 23 February 2006, under the provisions of AFI 36-2603:

The following documentary evidence was considered:

	Exhibit A.	DD Form 149, dated 16 Nov 04, w/atchs.
	Exhibit B.	Applicant's Master Personnel Records.
	Exhibit C.	Letter, AFBCMR Medical Consultant, dated
				30 Nov 05.
	Exhibit D.	Letter, SAF/MRBR, dated 2 Dec 05.
	Exhibit E.	Letter, AFBCMR, dated 9 Jan 06.