RECORD OF PROCEEDINGS
AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS

IN THE MATTER OF:		DOCKET NUMBER:  BC-2007-01870
		INDEX CODE: 110.00
XXXXXXX					COUNSEL:  NONE 
			  		HEARING DESIRED:  YES

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APPLICANT REQUESTS THAT:

His records be corrected to reflect he was medically retired retroactive to his date of separation (DOS).

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APPLICANT CONTENDS THAT:

He was diagnosed with a schizoid personality, chronic neurotic depressive prior to his separation from the Air Force.  Despite that diagnosis, he was tried and found guilty by a Special Court-Martial and later administratively separated.  Although it has been many decades since his separation, he recently learned about this process when he attempted to reopen his Department of Veterans Affairs (DVA) claim.  He and his family suffered greatly from the time he was separated in 1956 until the DVA granted his service connection and compensation for his mental health disorder.  He has been pre-occupied with this injustice for the last 51 years. 

In support of his request, the applicant submits personal letters and documentation extracted from his military personnel and medical records, copies of his Record of Trial, character references, Social Security Earnings report, FBI inquiry/correspondence, exceptional service performance documents, information from his personal files, adverse in-service stressors documents, Tuskegee Airman correspondence and an inquiry from Senator Patty Murray. 

His complete submission, with attachments, is at Exhibit A.

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STATEMENT OF FACTS:

On 13 September 1955 he was convicted by a special court-martial for three specifications of being absent without leave (AWOL) on three separate occasions between July and August 1955.  His sentence included a reduction from staff sergeant to airman first class. 

On 7 March 1956, he was administratively discharged from the Air Force with a general (under honorable conditions) discharge.

He served a total of 9 years, 8 months and 26 days on active duty.

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AIR FORCE EVALUATION:

HQ AFLOA/JAJM recommends denial.  JAJM states the AFBCMR’s ability to correct records related to courts-martial is limited.  Specifically, it permits the correction of a record to reflect actions taken by reviewing authorities under the Uniform Code of Military Justice (UCMJ).  Additionally, it permits the correction of records related to action on the sentence of courts-martial for the purpose of clemency.  Apart from these two limited exceptions, the AFBCMR is without authority to reverse, set aside, or otherwise expunge a court-martial conviction that occurred in or after 5 May 1950 (the effective date of the UCMJ).  With respect to the choice of forum made in this situation, commanders “on the scene” have first-hand access to facts and a unique appreciation for the needs of morale and discipline in their command that even the best-intentioned higher headquarters cannot match.  So long as they are lawfully acting within the scope of authority granted by law, their judgment should not be disturbed just because others might disagree.  While his diagnosis is a mental health condition, there is no showing on his part, or in the records provided, that his diagnosis prevented his understanding of his actions, or prevented him from being able to assist in his own defense at the time of his court-martial.  At his court-martial, he was represented by defense counsel and elected to testify in his own defense.  There is nothing in the record, or the court-martial summary, to indicate that a nine-year veteran of military service did not know how to follow the rules to obtain a leave or pass, or did not have the knowledge that without such permission his absence could be characterized as absence without leave.  While clemency is an option, there is no reason for the Board to exercise clemency in this case.  It seems clear that the applicant is looking to improve his situation.  The applicant presents no evidence to warrant upgrading his discharge characterization, and does not demonstrate an equitable basis for relief.  In addition, his request, made over fifty years after the court martial, is untimely.  

The complete JAJM evaluation is at Exhibit C.

The BCMR Medical Consultant recommends denial.  The Medical Consultant states the applicant's personality disorder may manifest with altered perceptions but did not interfere with his ability to differentiate right from wrong.  Hence, his wrongdoings were not the result of his personality disorder, although he may have perceived that he would/should not be punished for his actions.  Additionally, current DoD polices consider personality disorders as non-compensable conditions.  It is unknown if this policy was in effect at the time of his discharge, but there is no evidence that his personality disorder was disabling at the time of discharge.  Thus a medical retirement with compensation would not be appropriate.  The evidence of record shows the applicant’s schizoid personality disorder was neither disabling nor disqualifying for disability consideration at the time of his discharge.  Action and disposition in this case are proper and equitable reflecting compliance with Air Force directives that implement the law.

The complete Medical Consultant evaluation is at Exhibit D.

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APPLICANT'S REVIEW OF AIR FORCE EVALUATION:

The applicant responded with a detailed account of some the issues he faced prior to his separation from the Air Force.

The applicant’s son responded with his opinion/disagreement with the Medical advisory and some of issues his father faced.

The complete response, with attachments, is at Exhibit E.

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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 an error or injustice.  The applicant has requested his discharge be upgraded based on his diagnoses of a schizoid personality, prior to his separation from the Air Force.  However, we agree with the opinion of the Medical Consultant concerning this issue and find the applicant's assertions, alone, do not provide a basis to support a finding that his misconduct or his ability to serve satisfactorily was attributable to or affected by his medical condition.  Therefore, finding no evidence that a medical condition existed at the time of his discharge which would warrant processing through the disability evaluation system, we find no basis upon which to recommend granting the relief requested.

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 issues 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-2007-01870 in Executive Session on 27 February 2008, under the provisions of AFI 36-2603:

The following documentary evidence was considered:

Exhibit A.  DD Form 149, dated 16 May 2007, w/atchs.
Exhibit B.  Applicant's Master Personnel Records.
Exhibit C   Letter, AFLOA/JAJM, dated 1 October 2007.
Exhibit D   Letter, BCMR Medical Consultant, dated 16 November 2007.
Exhibit E.  Letter, SAF/MRBR, dated 21 November 2007.
Exhibit F.  Letter, Applicant, dated 24 November 2007, w/atchs.