RECORD OF PROCEEDINGS AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS IN THE MATTER OF: DOCKET NUMBER: BC-2011-04017 COUNSEL: NONE HEARING DESIRED: NO ________________________________________________________________ APPLICANT REQUESTS THAT: His records be corrected to reflect that: 1. He was retired or medically retired, instead of being discharged. 2. He be paid for 29 days of leave he lost. ________________________________________________________________ APPLICANT CONTENDS THAT: 1. Since being discharged from the Air Force, he has been receiving benefits from the Department of Veterans Affairs (DVA) at a rate of 100 percent for his service connected disabilities. He is also receiving disability compensation from the Social Security Administration (SSA). 2. He was hospitalized from Jul 97 through Mar 98 and, therefore, was unable to take leave. As a result, he lost 29 days of leave. He was not compensated for the leave, nor was he given the opportunity to take terminal leave. He should receive some form of compensation. In support of his request, the applicant provides various correspondence from the DVA, including his DVA rating decision. The applicant’s complete submission, with attachments, is at Exhibit A. ________________________________________________________________ STATEMENT OF FACTS: The applicant’s military personnel records indicate he enlisted in the Regular Air Force on 18 Jun 81. On 4 Jun 97, court-martial charges were preferred against the applicant. The reasons for the action included two specifications of making and uttering checks without sufficient funds in violation of Article 123a, Uniform Code of Military Justice (UCMJ); and one specification of failure to obey a general order by remaining delinquent in the payment of his government travel card in violation of Article 92, UCMJ. On 3 Jul 97, he became suicidal and was medically evacuated from his base and ultimately became an inpatient in the psychiatric ward of Walter Reed Army Medical Center (WRAMC), resulting in an indefinite delay in his trial. While at WRAMC, the applicant was sent to a Sanity Board pursuant to Rule for Courts-Martial 706. The Board determined the applicant had several psychiatric disorders, but also concluded he was capable of understanding the nature of his crimes at the time he committed them and competent to assist in the presentation of his defense. On 8 Oct 97, doctors at WRAMC issued a memorandum stating that returning the applicant to Korea to stand trial was against medical advice and defense counsel requested a change of venue. However, on 9 Jan 98, the military judge denied the request and the court-martial was scheduled for 10 Feb 98. On 26 Jan 98, the applicant submitted a request for discharge in lieu of court-martial in accordance with AFI 36-3208, Administrative Separation of Airmen, lengthy service consideration, and convening of a Medical Evaluation Board (MEB). On 3 Feb 98, the applicant’s requests were forwarded to the court-martial convening authority who granted the applicant’s request for discharge in lieu of court-martial, but recommended his requests for lengthy service probation and an MEB be denied. On 5 Feb 98, the case was determined to be legally sufficient. In addressing the applicant’s request for an MEB, the reviewer noted the absence of any indication from the applicant’s attending psychiatrists at WRAMC that an MEB was warranted. On 10 Feb 98, the Major Air Command Commander concurred with the recommendation to discharge the applicant in lieu of court- martial and recommended he be denied lengthy service probation. On 11 Mar 98, the Secretary of the Air Force denied the applicant’s request for lengthy service probation and directed that the approved administrative discharge be executed. On 23 Mar 98, the applicant was furnished a general (under honorable conditions) discharge and was credited 16 years, 9 months, and 6 days of total active service. On 15 May 98, according to information provided by the Defense Finance and Accounting Service (DFAS), the applicant was provided a lump sum payment of $3,559.80 for the sale of 60 days of leave. The remaining relevant facts pertaining to this application are contained in the letter prepared by the AFBCMR Medical Consultant which is at Exhibit C. ________________________________________________________________ AIR FORCE EVALUATION: The AFBCMR Medical Consultant recommends denial, indicating there is no evidence of an error or injustice. In consideration of the applicant's request, there must be clear and convincing medical evidence of an error or injustice. In view of the plethora of concurrent administrative issues apparent during the matter under review, several salient issues must be addressed to determine whether a medical retirement should have occurred. First, was a pre-existing mental health condition evident prior to the applicant’s misconduct? A review of the mental health and medical records reveals no indication of such a condition. Additionally, the applicant’s performance reports indicate satisfactory or above average performance with several awards and decorations noted. Furthermore, in a 30 Jan 98 memorandum, the applicant indicates that he started getting depressed about being away from his family and started drinking and working long hours to cope. Hence, there is no clear evidence of a pre- existing mental health condition. Second, did the applicant have a severe mental health disease or defect at the time of the misconduct? The expert opinion of the Sanity Board at WRAMC represents the most objective evidence of the applicant's mental state and indicates the applicant did not have a severe mental health disease or defect at the time of his misconduct. The Board found he was able to appreciate the nature and quality or wrongfulness of his misconduct and concluded that he possessed sufficient mental capacity to understand the nature of the proceeding and participate in his defense. Third, in evaluating the appropriateness of an MEB, AFI 36-3212, Physical Evaluation for Retention, Retirement, and Separation, references use of the MEB process for a medical or mental health condition which is unfitting for service. In consideration of performance reports and decorations reviewed in the applicant's records leading to the period of involuntary hospitalization, there appears to be no unfitting or disqualifying medical or mental health conditions present. Moreover, AFI 36-3212, indicates that those charged with one or more offenses that could result in dismissal or punitive discharge, and those convicted and sentenced to dismissal or punitive discharge, may not undergo disability evaluation unless: 1) a medical board questions a member's mental capacity or responsibility, or 2) the commander exercising court martial jurisdiction decides whether to proceed with court martial or dismiss, withdraw, or hold the charges in abeyance until completion of the disability evaluation. Therefore, a MEB would not be warranted in this instance since the commanding officer elected not to pursue a disability evaluation. Ultimately, the applicant elected to terminate his military career with a General Discharge under AFI 36-3208 in lieu of a court-martial for the stated offenses. The decision of the commanding officer and in-patient psychiatrists not to pursue a MEB is wholly justified in the context of an impending court martial. Furthermore, the Department of Veteran Affairs (DVA), operating under Title 38, United States Code, is authorized to offer compensation for any medical condition determined service-connected, without regard to its impact upon a service member's retainability, fitness to serve, or narrative reason for release from military service. A complete copy of the AFBCMR Medical Consultant evaluation is at Exhibit C. ________________________________________________________________ APPLICANT'S REVIEW OF AIR FORCE EVALUATION: A copy of the Air Force evaluation was forwarded to applicant on 22 Jun 12 for review and comment within 30 days. As of this date, no response has been received by this office (Exhibit D). ________________________________________________________________ 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 error or injustice that would warrant changing the basis for the applicant’s discharge. We took notice of his complete submission in judging the merits of the case; however, we agree with the opinion and recommendation of the AFBCMR Medical Consultant and adopt his rationale as the basis for our conclusion the applicant has not been the victim of an error or injustice. As for his contention that he lost 29 days of leave, we do not find his uncorroborated assertions sufficient to convince us he was somehow precluded from taking or selling his leave. In fact, information provided by the Defense Finance and Accounting Service (DFAS) indicates that he was able to sell 60 days of leave in conjunction with his discharge. Therefore, absent evidence to the contrary, we find no basis to recommend granting the relief sought in this application. ________________________________________________________________ THE BOARD DETERMINES THAT: 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-2011-04017 in Executive Session on 26 Jul 12, under the provisions of AFI 36-2603: The following documentary evidence was considered: Exhibit A. DD Form 149, dated 10 Oct 11, w/atchs. Exhibit B. Applicant's Master Personnel Records. Exhibit C. Letter, AFBCMR Medical Consultant, dated 21 Jun 12. Exhibit D. Letter, AFBCMR, dated 22 Jun 12.