ADDENDUM TO 
RECORD OF PROCEEDINGS
AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS

IN THE MATTER OF: 			DOCKET NUMBER: BC-2005-01794

   						COUNSEL:   

						HEARING DESIRED:  YES 

APPLICANT REQUESTS THAT:

His active service in the Air Force be changed to reflect twenty years of service with an active duty retirement, or in the alternative, a medical retirement. 

RESUME OF THE CASE:

On 25 May 11, the Board considered and denied the applicant’s original request for his administrative discharge to be set aside, he be given constructive service credit for his time in service from his date of discharge (20 Dec 04) through the current date to allow him to retire due to length of service, and “some portion” of his grade be reinstated.  In the original case, the applicant contended the Morphine Sulfate (MS) Contin [a morphine derivative painkiller and Schedule II Controlled Substance] he used on two occasions, which had been prescribed for his wife, was not recreational drug use.  He suffered from a backache and severe headache, and was experiencing severe emotional stress due to his family's catastrophic medical conditions which left his wife, daughter, and other close relatives disabled.  Even though he cooperated in the underlying investigation and saved the command much time, effort, and expense by pleading guilty, he was unjustly separated after over 18 years of active duty.  The Board determined insufficient relevant evidence had been presented to demonstrate the existence of an error or injustice.  The Board noted the applicant’s contentions were, in and by themselves, insufficient to persuade them to override the multiple levels of legal review performed during the applicant’s discharge process.  The extenuating circumstances presented by the applicant’s family situation were throughout the record and were acknowledged and weighed during his trial, discharge process, and lengthy service deliberation.  The Air Force was not culpable for either his family’s misfortune or for the applicant’s chosen behavior.  The applicant chose to take his wife’s prescribed MS Contin on multiple occasions over a three-year period.  He lashed out at co-workers and superiors and, during his confinement resisted all efforts by Brig Counseling and security staff to address his confining offense and behavior.  He consistently failed to attend or participate in the Rehabilitative Substance Abuse Group.  The applicant had the right to present his case to an Administrative Discharge Board (ADB) in 2004, but he elected to waive that right.  His counsel failed to show the applicant had no recourse but illegal self-medication over a three-year period with a controlled substance prescribed for another, he was denied any rights to which he was entitled during his trail and subsequent discharge, or his poor judgment while an NCO and antagonistic response to rehabilitation efforts while confined entitled him to retention until eligible for retirement with restoration of his lost rank.  For an accounting of the facts and circumstances surrounding the applicant’s original request and the rationale of the earlier decision by the Board, see the Record of Proceedings (ROP) at Exhibit H.

On 13 Apr 15, through counsel the applicant submitted a request for reconsideration of his original application again requesting a twenty-year retirement, or in the alternative, a medical retirement.  Along with reiterating each of the contentions from his original applicant, the applicant is contending that while on active duty he suffered from severe “medically disqualifying” depression and was eligible to be medically retired.    

The applicant’s complete submission, with attachments, is at Exhibit I.

AIR FORCE EVALUATIONS:

AFPC/JA recommends denial indicating there is no evidence of an error or an injustice.  Pursuant to AFI 36-3208, Administrative Separation of Airman, paragraph 5.54, drug use constitutes a basis for involuntary discharge.  For an individual tried at Special Court-Martial and convicted of a wrongful use of a controlled substance under Article 112a of the Uniform Code of Military Justice (UCMJ), the UCMJ authorizes a maximum punishment of a bad conduct discharge (BCD), 2/3 forfeitures of pay for up to 12 months, 12 months confinement, reduction in grade to E-1 and the possibility of a fine.  The Military Judge’s Benchbook, cited by the applicant in his argument, highlights a variety of mitigating factors which may and should be considered when determining an appropriate punishment.  The Military Judge’s Benchbook is a secondary source; i.e. it is not itself controlling authority but generally an accurate restatement of the law.  Evidence the applicant knowingly and intentionally took an illegal drug for a headache or back pain multiple times because it was faster than going to a medical provider to obtain a valid prescription is not persuasive evidence of injustice in the applicant’s case.  The applicant contends he was suffering emotional stress related to his wife and daughter’s medical conditions.  While that is a proper matter in mitigation, we note the sentencing authority, convening authority, and separation authority, as well as the DRB, all had this evidence before them as they made their determinations about the applicant’s case.  The applicant also argues his cooperation in the investigation into his crime and his court-martial, which saved the government time, effort, and expense, should weigh in his favor.  Those facts did, indeed, weigh in his favor at his court-martial and were considered in his sentence.   Moreover, the fact someone admits to and pleads guilty to a crime does not remove the fact the individual committed a crime and is subject to the consequences thereof.  The applicant also argues he had an unblemished military career prior to his court martial, and his punishment was excessive.  However, the convening authority, as well as any appellate authorities who reviewed the applicant’s court-martial had all of this information available to them, considered the potential for excessive punishment, and determined the punishment he received was appropriate.  While the applicant experienced a variety of extreme stressors in his lifetime, to include the illness and death of multiple family members in a short period of time, he knowingly and intentionally used illegal drugs and had an opportunity to present all of the mitigating circumstances he is now presenting to this board to multiple other decision-makers.  We do not find the circumstances discussed above to be persuasive evidence of injustice in this case, and recommend denial of the applicant’s request.

A complete copy of the AFPC/JA evaluation is at Exhibit J.

BCMR Medical Consultant recommends denial of the applicant’s request for a medical retirement, indicating there is no evidence of an error or an injustice.  Current and previous alleged matters in extenuation and mitigation include the applicant’s abusive childhood [mental and physical], the stressors attendant with being the breadwinner with a wife who suffered from chronic pain emanating from a congenital bone condition, a daughter with a craniofacial developmental condition requiring several surgeries, and other family members who suffered serious illnesses.  The implicit sentinel event leading to the applicant’s use of his wife’s MS Contin, reportedly followed a back injury sustained while moving fallen “large pine trees” and debris from a driveway following a “severe ice storm” [at the request of his mother] while visiting her home in the mountains of North Carolina.  Although there is an implicit single, or at least sentinel, use of the medication, the Notification Memorandum for a Board Hearing, dated 8 Mar 04, cites the wrongful use of Morphine occurred over a three-year period, between 1 Jan 00 and 7 Mar 03 as documented by an AF 1359, Report of Result of Trial, dated 10 Sep 03.

A review of the applicant’s service treatment record and medical documentation include documentation revealing the applicant was referred to the mental health clinic at Griffis AFB, NY in Oct 88, in response to an off-base DWI incident, during which he reportedly “refused breathalyzer” testing.  The evaluating provider found “no mental health diagnosis” and recommended attendance at the Substance Abuse Seminar alone.  Thereafter, seeking a “more challenging and interesting” career field, the applicant underwent a mental health evaluation on 3 Oct 89, and was cleared for cross-training into the Explosive Ordinance & Disposal (EOD) career field.  In Mar 03, the applicant received a command-referral due to behavioral outbursts, was diagnosed as Adjustment Disorder, and received a Mental Health referral, attended a 6-hour ADAPT seminar, was given “no diagnosis,” and then attended individual counseling for Axis I diagnosis, Partner-Relational Problem in Apr-May 03.  More contemporary clinical assessments during calendar years (CY) 04-05 appear to focus more upon the applicant’s mental health, which initially led his health care providers to consider a Medical Evaluation Board (MEB).  However, after apparently noting the predominant Axis I mental health diagnosis of Adjustment Disorder was considered an unsuitable and not ratable by the Military Department at the time, the MEB idea was rescinded and the administrative discharge was carried out.  A 6 Apr 04 two-page notice of the applicant’s progress while in confinement discloses that his “adjustment [had] been unsatisfactory,” which included a failure to attend individual or group counseling, with instances of disrespect to facility staff, “displaying utmost contempt for the Armed Forces of the United States.”  On 7 Apr 04, the applicant received a mental health assessment by a civilian mental health professional.  The evaluating provider issued an Axis I diagnosis of Major Depressive Disorder, Recurrent.  Thereafter, however, on 22 Apr 04 military records continued with the Axis I diagnosis of Adjustment Disorder.  An incomplete medical entry, dated 2 Dec 04, again indicates the applicant was under consideration for an MEB, noting his prior history of Adjustment Disorder diagnosed in Mar 03, followed by the Command Referral for “behavioral outbursts;” resulting in the diagnosis of Partner Relational Problem and Adjustment Disorder.  Ultimately, on 20 Dec 04, a medical entry discloses a decision had been made that “No MEB was indicated” and the applicant’s “profile will be changed to indicate “No MEB will be initiated.”  A memo, also dated 20 Dec 04, was dispatched to the applicant’s Squadron/CC from the Chief, Life Skills, providing a summary assessment of the applicant’s clinical history and status, indicating while the applicant was experiencing psychological distress, his diagnosis does not warrant further consideration for an MEB.  The provider concluded, “At this time, judgment regarding his suitability for continued military service is an administrative decision that should be based upon the recommendations of his commander.”

The Medical Consultant found the evidence insufficient to warrant a medical retirement for any of the applicant’s somatic complaints; Although the applicant was indeed issued an “S4T” profile for a mental health condition, Adjustment Disorder, in accordance with DoDI 1332.38, Physical Disability Evaluation, in effect at the time of the applicant’s service, Adjustment Disorder was not considered a compensable disorder qualifying for an MEB and a disability separation or retirement.  While under current Department of Defense guidance a Chronic Adjustment Disorder would qualify for a Medical Evaluation Board, an Acute Adjustment Disorder currently remains an unsuitable and non-compensable diagnosis.  In this case, Adjustment Disorder was the prevailing diagnosis at the “snap shot” time of the applicant’s military service.  The applicant is also reminded that, operating under Title 38, United States Code (USC), the Department of Veterans Affairs (DVA) is authorized to offer compensation for any medical condition determined service-incurred, without regard to [and independent of] its demonstrated or proven impact upon a service member’s retainability, fitness to serve, or the narrative reason for separation.  This is the reason why an individual can be found fit for release from military service for one reason and yet sometime thereafter receive a compensation rating from the DVA for  one or more medical conditions that were service-connected, but not proven militarily unfitting at the time of release from military service.  The DVA is also empowered to conduct periodic re-evaluations for the purpose of adjusting the disability rating awards (increase or decrease) as the level of impairment from a given service connected medical condition may vary (improve or worsen, affecting future employability) over the lifetime of the veteran.  The Medical Consultant opines the applicant has not met the burden of proof of error or injustice to warrant the desired change of the record.

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

APPLICANT'S REVIEW OF AIR FORCE EVALUATIONS:

Copies of the Air Force evaluations were forwarded to the applicant on 20 May 16 for review and comment within 30 days (Exhibit L).  As of this date, no response has been received by this office.

THE BOARD CONCLUDES:

1.  In an earlier finding, the Board determined there was insufficient evidence to warrant any corrective action.  After thoroughly reviewing the additional documentation submitted in support of his appeal and the evidence of record, we do not believe the applicant has overcome the rationale expressed in the previous decision.  We took notice of the applicant’s complete submission in judging the merits of the case; however, we agree with the opinions and recommendations of the Air Force office of primary responsibility (OPR) and the AFBCMR Medical Consultant and adopt their rationale as the basis for our conclusion the applicant has not been the victim of an error of injustice.  Therefore, in the absence of evidence to the contrary, we find no basis to recommend favorable reconsideration of the applicant’s request.  

2.  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 issues involved.  Therefore, the request for a hearing is not favorably considered.

THE BOARD DETERMINES:

The applicant be notified the evidence presented did not demonstrate the existence of material error or injustice; the application was denied without a personal appearance; and the application will only be reconsidered upon the submission of newly discovered relevant evidence not considered with this application.

The following members of the Board considered AFBCMR Docket Number BC-2005-01794 in Executive Session on 21 Jun 16 under the provisions of AFI 36-2603:

	Chair
	Member
	Member

The following documentary was considered:

	Exhibit H.  Original ROP, dated 20 Oct 05, w/atchs.
Exhibit I.  RECON Request, DD Form 149, dated 13 Apr 15, w/atchs. 
Exhibit J.  Memorandum, AFPC/JA, dated 17 May 16.
Exhibit K.  Memorandum, BCMR Medical Consultant, dated 18 May 16.
	Exhibit L.  Letter, SAF/MRBR, dated 20 May 16.