RECORD OF PROCEEDINGS AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS IN THE MATTER OF: DOCKET NUMBER: BC-2008-00319 INDEX CODE: 110.00 COUNSEL: NONE HEARING DESIRED: YES ________________________________________________________________ _ APPLICANT REQUESTS THAT: His under other than honorable conditions (UOTHC) discharge be upgraded to an honorable discharge and he be placed on the Temporary Disability Retired List (TDRL) with a 30% disability rating. ________________________________________________________________ _ APPLICANT CONTENDS THAT: He was unfairly discharged from the Air Force. He was denied a physical disability discharge. He was scared into taking an administrative discharge. He was never given the opportunity to submit evidence. There was not enough evidence to prosecute him. In support of his request, the applicant provided a personal statement and documents extracted from his military personnel records. Applicant’s complete submission, with attachments, is at Exhibit A. ________________________________________________________________ _ STATEMENT OF FACTS: Applicant enlisted in the Regular Air Force on 27 July 1988 in the grade of airman basic. In February 1992, court-martial charges were brought against the applicant for the following: a. The applicant did on or about 6 February 1991 attempted to steal money ($18,895.00) from the American Concept Insurance Company. b. The applicant did on or about 18 April 1991 and on or about 27 April 1991, steal sixty-four compact discs valued at more than $100.00, property of the Air Force. c. The applicant did on or about 18 April 1992 and 27 April 1992, unlawfully enter a dormitory room with intent to commit larceny. d. The applicant did on or about 27 March 1991, present an Air Force Form 180 to the staff judge advocate, a claim against the United States in the amount of $894.75 for a video camera, which claim was false in the amount of $894.75 in that the camera was not missing from the applicant's hold-baggage household goods shipment, and was then known by applicant to be false. e. The applicant did on or about 6 February 1991, make a false official statement. On 1 April 1992, the applicant requested discharge in lieu of trial by court-martial. On 18 May 1992, the commander approved the applicant’s request for discharge in lieu of trial by court-martial. He recommended the applicant be furnished a UOTHC discharge without probation and rehabilitation. On 28 May 1992, the discharge authority concurred with the recommendations and directed a UOTHC discharge, without probation and rehabilitation. In a legal review of the case file, the staff judge advocate found the case legally sufficient and recommended discharge. The applicant was involved in a motor vehicle accident in September 1990 while serving a tour of duty at Aviano Air Base, Italy. He suffered injuries to the left elbow, left knee, and a left femur fracture. A Medical Evaluation Board (MEB) convened on 5 August 1992 and referred his case to an Informal Physical Evaluation Board (IPEB) with a diagnosis of bilateral knee pain. On 19 August 1992, the IPEB found him unfit for further military service and recommended discharge with a combined compensable rating of 20%. The applicant disagreed with the findings and recommended disposition of the IPEB and requested an FPEB. On 2 October 1992, the FPEB found him unfit for further military service based on a compensable diagnosis of left knee pain with missing inferior pole of left patella and degenerative joint changes, status post surgical removal of inferior pole after fracture from automobile accident in September 1990. The FPEB further recommended the applicant be placed on the TDRL with a compensable rating of 30%. The applicant agreed with the findings and recommended disposition of the FPEB. On 16 December 1992, the Secretary of the Air Force Personnel Council (SAFPC) determined that the applicant's previously approved AFR 39-10 action should be executed, terminating the pending action under the provisions of AFR 35-4, the policy governing physical evaluation for retention, retirement, medical separations. Applicant was discharged with an UOTHC discharge on 7 January 1993. He served 4 years, 5 months and 11 days on active duty. ________________________________________________________________ _ AIR FORCE EVALUATION: AFPC/DPSD recommends denial. DPSD states the applicant initiated a request on 1 April 1992 for discharge in lieu of trail by court-martial. The applicant was facing charges that involved the alleged theft of property from the dormitory room of another Air Force member whose room adjoined his own, and who had died in an automobile accident. Additionally, he was charged with trying to defraud an insurance company by submitting a false claim. He did not succeed on either count. There was no real loss to any victim, and whatever sentence the applicant would have received from a court would have been relatively light. Without a real victim to vindicate, administrative action would accomplish as much, at least in a practical sense, as would a court-martial conviction. The applicant was undergoing an MEB for diagnosis of left knee pain with missing inferior pole of left patella and degenerative joint changes after fracture from an automobile accident in 1990. On 2 October 1992, the IPEB reviewed the medical case file and recommended temporary retirement with a 30% disability rating. Due to the court-martial action, the applicant's medical board process was stopped. Per AFR 35-4, Section 1-5, paragraph a., "A member under sentence that does not involve dismissal or punitive discharge is not usually eligible for disability evaluation until final disposition of the sentence of charges." Once the applicant was offered discharge in lieu of court-martial it became a dual action case and the medical board should have been allowed to process. The complete DPSD evaluation is at Exhibit C. ________________________________________________________________ _ APPLICANT'S REVIEW OF AIR FORCE EVALUATION: On 4 April 2008, a copy of the Air Force evaluation was forwarded to the applicant for review and comment within 30 days (Exhibit D). As of this date, this office has received no response. ________________________________________________________________ _ AFBCMR MEDICAL CONSULTANT EVALUATION: The AFBCMR Medical Consultant recommends denial. The AFBCMR Medical Consultant states the applicant requested, was granted, and accepted a UOTHC discharge in lieu of trial by court- martial. Due to the aforementioned medical issues, the applicant was concurrently the subject of a medical separation (TDRL) with a 30% disability rating. The final disposition of concurrent administrative and medical separations is determined by the Secretary of the Air Force Personnel Council (SAFPC). In performing this "dual-action" review and determination, the SAFPC collectively addresses the severity of the subject's medical condition(s), the nature of the administrative offenses, and seeks to establish a causal or mitigating relationship between the medical conditions and the acts of misconduct. In the case under review, the SAFPC likely found no causal or mitigating relationship between the applicant's administrative violations and his medical condition(s) and executed its authority to separate the applicant under the previously approved AFR 39-10 action. The Medical Consultant did not set out to re-litigate the applicant's case, noting his disagreement with the actions taken by this commander and the 10 points he raised; citing his lack of guilt, the physical impairment he endured, the proximity to completing his tour of duty, his efficiency ratings, and reported good citizenship since his discharge, among other factors. Based upon a preponderance of evidence in the applicant's case, the AFBCMR Medical Consultant found no evidence of an error or injustice in executing the applicant's discharge, the establishment of the narrative reason for discharge, or his service characterization. Notwithstanding the serious nature of the charges brought against the applicant, the Board may, however, consider as a matter of clemency, upgrading the applicant's discharge characterization to general (under honorable conditions) noting his otherwise commendable service and letters of commendation, and the doubts raised regarding the validity of some of the evidence brought against him, thereby allowing him the opportunity to receive the benefit of health care of the Department of Veterans Affairs. The AFBCMR Medical Consultant acknowledges that the applicant may have developed other medical conditions, with a possible origin during his military service, e.g., post-traumatic stress disorder, and malunion of the left femur fracture. However, the current state of the applicant's health has no bearing upon the medical facts that were present at the time of his separation; a time in which the aforementioned conditions were likely not diagnosable. The AFBCMR Medical Consultant's evaluation is at Exhibit D. ________________________________________________________________ _ APPLICANT'S REVIEW OF AFBCMR MEDICAL CONSULTANT EVALUATION: The applicant reviewed the evaluation and states he feels that he is being falsely accused of a crime he did not commit and denied the retirement he rightfully deserves. He never was given back his personal property that was confiscated by the AFOSI. Receipts for these items were enclosed in the original package. He was not allowed by his defense attorney to provide evidence; the information he is providing now. He should have received a court-martial and took the minimal sentence or no sentence at all. Then he would have received a 30% TDRL rating which did not include the serious medical malpractice by gross malunion of his femur by 53-plus degree inward rotation. He is now in a wheelchair because of that operation. He received no compensation for his permanent disability, which was clearly the fault of the military. He will state under oath that he did not commit the alleged offenses. Since he was the only one frauded and suffered permanent physical and mental damage, approving the TDRL and granting a general (under honorable conditions) discharge seems to be a minimal but fair request. He deserves to have base and commissary privileges. The applicant's complete response is at Exhibit G. ________________________________________________________________ _ 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 warranting approval of the requested corrective actions. The applicant’s contentions are duly noted; however, after reviewing the evidence of record, it appears the applicant did in fact go through the Disability Evaluation System (DES) and was the subject of an involuntary administrative discharge action during the same time frame. It was determined by the Secretary of the Air Force that the discharge action be executed, terminating processing under the DES. Therefore, since it appears that the applicant received full and fair consideration by all levels of review and he has not provided any evidence which would lead us to believe he was denied rights to which he was entitled, we find no compelling basis to recommend granting the relief sought. 4. Notwithstanding the above, although we find no impropriety in the characterization of applicant's discharge. Considered alone, we conclude the discharge proceedings were proper and characterization of the discharge was appropriate to the existing circumstances. Consideration of this Board; however, is not limited to the events which precipitated the discharge. Further, we may base our decision on matters of equity and clemency rather than simply on whether rules and regulations which existed at the time were followed. Under our broader mandate and after careful consideration of all the facts and circumstances of applicant's case, we are persuaded that some form of corrective action is appropriate as a matter of equity and on the basis of clemency. Therefore, as recommended by the AFBCMR Medical Consultant, we agree that under the circumstances of this case, it would be appropriate to upgrade the applicant's discharge to general. Therefore, it is our recommendation that his records should be corrected as indicated below. 5. 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 THAT: The pertinent military records of the Department of the Air Force relating to APPLICANT be corrected to show that on 7 January 1993, he was discharged with service characterized as general (under honorable conditions). ________________________________________________________________ _ The following members of the Board considered this application in Executive Session on 29 January 2009, under the provisions of AFI 36-2603: XXXXXXXXXXXXXXX, Panel Chair XXXXXXXXXXXXXXX, Member XXXXXXXXXXXXXXX, Member The following documentary evidence pertaining to AFBCMR Docket Number BC-2008-00319 was considered: Exhibit A. DD Form 149, dated 10 September 2007, w/atchs. Exhibit B. Applicant's Master Personnel Records. Exhibit C. Letter, AFPC/DPSD, dated 10 March 2008. Exhibit D. Letter, SAF/MRBR, dated 4 April 2008. Exhibit E. Letter, AFBCMR Medical Consultant, dated 9 December 2008. Exhibit F. Letter, SAF/MRBR, dated 12 December 2008. Exhibit G. Letter, Applicant, dated 8 January 2008. AFBCMR BC-2008-00319 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 XXX, be corrected to show that on 7 January 1993, he was discharged with service characterized as general (under honorable conditions). .