RECORD OF PROCEEDINGS
AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS

IN THE MATTER OF:	DOCKET NUMBER:  BC-2005-00019
		INDEX CODE:  100.03, 126.04
	XXXXXXX	COUNSEL:  NONE

	XXXXXXX	HEARING DESIRED:  NO

MANDATORY CASE COMPLETION DATE:  7 JULY 2006

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APPLICANT REQUESTS THAT:

Her nonjudicial punishment under Article 15 of the Uniform Code of Military Justice (UCMJ) be expunged from her records; she be awarded the Air Force Good Conduct Medal (AFGCM); and her discharge be changed to a medical/retirement.

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APPLICANT CONTENDS THAT:

The Article 15 was invalid because the reasons were untrue.  She did not fail to go and she was not allowed the benefit of legal counsel during the Article 15 process. Meanwhile, she has no reputation of neglect of any duties whatsoever.  The denial of the AFGCM was based on the issuance of the Article 15.  She contracted post traumatic stress disorder (PTSD) symptoms three months prior to discharge and was not given enough time for medical referral to a PEB for a medical discharge.

In support of her application, applicant provided a personal statement, a copy of DD Form 214, Certificate of Release or Discharge from Active Duty, documents associated with her Article 15 proceedings, Department of Veterans Affairs (DVA) Rating Decision, character references, and a copy of her Bachelor of Arts certificate from University of Arizona. 

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

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STATEMENT OF FACTS:

The applicant contracted her initial enlistment in the Regular Air Force on 28 July 1988.  She was progressively promoted to the grade of senior airman, having assumed that grade effective and with a date of rank of 11 October 1991. 

The first evidence of involvement with weight management in the service medical records is an October 24, 1989 entry that states she was previously 2 pounds over the maximum allowable weight of 159 lbs but on that date had lost weight to fall under that limit at 157 3/4 lbs. On November 6, 1989 she was seen for nutritional counseling at which time her weight was 156 pounds. By an    April 25, 1990 nutritional clinic quarterly counseling session, her weight was documented at 167 pounds (8 over the maximum of 159 pounds). By November 1990 she had again lost weight to 162 pounds and a January 16, 1991 medical record entry recorded her weight as 160 pounds. In February 1991 she received non-judicial punishment for failure to go (apparently to mandatory physical training). At an April 10, 1991 nutrition clinic appointment she weighed in at her maximum allowable weight of 159 pounds. However by September 1991 she again exceeded her maximum allowable weight by 6 pounds and continued to gain weight with a recorded weight of 177 pounds at a February 24, 1992 clinic visit. In April 1992 she was non-selected under the selective reenlistment program due to weight management issues. 

On July 10, 1992 the applicant presented to the clinic with emotional distress and inability to sleep due to nightmares since a sexual assault on June 6, 1992. Mental health evaluation dated July 13, 1992 noted "rekindling of prior abusive relationships, one of which resulted in her terminating a pregnancy at age 18. Feeling this issue still somewhat unresolved" and concluded with probable diagnosis of PTSD and initiated therapy. Mental health entries indicate expected worsening of symptoms that results from discussing issues in therapy and antidepressant medication was prescribed to assist with disturbed sleep. Her primary care physician at the time of an August 12, 1992 appointment noted imminent separation scheduled for September 16, 1992 and indicated plans to discuss whether Medical Evaluation Board (MEB) was indicated prior to separation with mental health providers. On August 19, 1992, mental health clinic note documented continuing symptoms but that she had stopped her medications on her own. The mental health provider documented a discussion about possible MEB in light of imminent separation.

On 12 February 1991, applicant was notified by her commander of his intent to impose punishment under Article 15 of the UCMJ for failure to go at the time prescribed to her appointed place of duty at Building 40006, Base Gymnasium on divers occasion between 4 and 6 February 1991. 

On 19 February 1991, the applicant waived her right to demand trail by court-martial and accepted nonjudicial punishment. On the AF Form 3070, Record of Nonjudicial Punishment Proceedings, she marked and initialed Block 5 stating, "I have consulted a lawyer." She submitted numerous character references. On        25 February 1991, her commander determined the applicant committed the offense alleged, and imposed punishment of 30 days correctional custody. The applicant appealed the punishment. The appeal authority partially granted her request mitigating the punishment to 21 days correctional custody and 9 days of extra duty.  

On 30 March 1992, applicant's supervisor prepared an AF Fm 418 and recommended that she be selected for reenlistment. On 7 April 1992, her commander nonconcurred with the recommendation and rendered her ineligible for reenlistment. The specific reasons for his action were that she had received numerous letters of reprimand and counselings regarding her failure to meet the requirements of the Air Force weight management program.     

On 16 September 1992, applicant was separated from the Air Force for completion of required service with service characterized as honorable.  She was issued and RE code of "2X."  She completed 4 years, 1 month, and 18 days of total active military service.

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AIR FORCE EVALUATION:

AFLSA/JAJM recommends denial and states a set aside should only be granted when the evidence demonstrates a material error or injustice. The applicant has failed to do so. The applicant contends that the Article 15 was invalid, based on untruths, that she was not afforded legal counsel, and that she had no reputation of neglect of duties whatsoever. Applicant claims, while stationed in Germany, she had complained of another airman arriving late at his duty station, intoxicated, following a unit recreation event, and carrying several bottles of beer. The airman attempted to grab and kiss her. She reported the incident and then, as the only female in the facility, began experiencing harassment. Soon after the incident, she was placed on a Weight Management Program being four ounces over the maximum. Because of the Persian Gulf conflict and low manning during the drawdown era, the applicant claims her supervisor excused her from attending the fitness training (FIT) program that was at the base gymnasium. Her shifts ended at midnight and the FIT program required attendance at 0500. She stated she was allowed to check in at the fitness center desk each day at lunch for a certain period of time. The FIT program log provided with the applicant’s requests indicates she was in an authorized absence status from 24 January through 3 February 1991, and then indicates X’s for 4 through 6 February 1991, which presumably means unauthorized absence. There is no record of whether or why her authorized absence ended. 

AFLS/JAJM’s complete evaluation is at Exhibit C.

AFPC/DPPRP recommends denial and states the AFGCM is awarded to Air Force enlisted personnel for exemplary conduct while in active military service. Individuals must demonstrate a positive attitude toward the Air Force and their jobs. Award of the AFGCM is based upon specific recommendation of the unit commander. Commander may deny the award in cases where an individual’s conduct has been less than exemplary.

AFPC/DPPPR’s complete evaluation is at Exhibit D.

The BCMR Medical Consultant is of the opinion that no change in the records is warranted. There is no error in not accomplishing an MEB prior to the applicant’s separation because the applicant did not consent to retention on active duty for disability evaluation. The fact that the DVA has granted service connected disability compensation for her service connected condition does not establish a basis for the Air Force to retroactively grant a disability discharge. The fact that the DVA has retroactively raised her disability rating also does not establish an error or injustice warranting correction of military records. Action and disposition in this case are proper and equitable reflecting compliance with Air Force directives that implement the law.  

BCMR Medical Consultant’s complete evaluation is at Exhibit E.

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APPLICANT'S REVIEW OF AIR FORCE EVALUATION:

Copies of the Air Force evaluations were forwarded to the applicant on 17 March 2006 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.  We find no evidence of error in this case and after thoroughly reviewing the documentation provided in support of her appeal, we do not believe she has suffered an injustice.  In cases of this nature, we are not inclined to disturb the judgments of commanding officers absent a strong showing of abuse of discretionary authority. The evidence of record indicates that during the processing of the Article 15 action, the applicant was afforded every right to which she was entitled, waived her right to demand trial by court-martial, and submitted matters for review by the imposing commander and appellate authority.  After considering the matters raised by the applicant, the commander determined that she had committed the offenses alleged" and imposed punishment.  Persuasive evidence has not been provided which would lead us to believe that the imposing commander or the reviewing authority abused their discretionary authority, that her substantial rights were violated during the processing of the Article 15 punishment, or that the punishment exceeded the maximum authorized by the UCMJ.  In regard to the Air Force Good Conduct Medal, it is awarded to those enlisted personnel who, for three consecutive years, perform in an exemplary manner.  The applicant’s commander felt the applicant, a recipient of an Article 15, did not perform in an exemplary fashion, and absent evidence to the contrary, we cannot find fault with the commander’s decision. Therefore, we agree with 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.  

4.	With respect to changing her discharge to a medical/retirement, the Board took notice of the applicant's complete submission in judging the merits of this case.  However, evidence has not been provided warranting a change in her administrative discharge to a medical discharge. The Board notes her contentions and is of the opinion that the detailed comments provided by the BCMR Medical Consultant accurately address the applicant’s allegations.  Therefore, we are in agreement with BCMR Medical Consultant’s opinions and recommendation and adopt his rationale as the basis for our conclusion that the applicant has not been the victim of either an error or an injustice.  In view of the above findings, we find no basis upon which to change the applicant’s discharge to a medical/retirement.
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THE BOARD DETERMINES THAT:

The applicant be notified that the evidence presented did not demonstrate the existence of probable 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-2005-00019 in Executive Session on 18 April 2006, under the provisions of AFI 36-2603:

	Panel Chair
	Member
	Member

The following documentary evidence was considered:

    Exhibit A.  DD Form 149, dated 29 May 01, w/atchs.
    Exhibit B.  Applicant's Master Personnel Records.
    Exhibit C.  Letter, AFLSA/JAJM, dated 11 Apr 05.
    Exhibit D.  Letter, AFPC/DPPPR. dated 4 May 05.
    Exhibit E.  Letter, BCMR Medical Consultant, dated 14 Mar 06.
    Exhibit F.  Letter, SAF/MRBR, dated 17 Mar 06.

                                   
                                   Panel Chair