RECORD OF PROCEEDINGS AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS IN THE MATTER OF: DOCKET NUMBER: BC-2012-05222 COUNSEL: NONE HEARING DESIRED: YES ________________________________________________________________ APPLICANT REQUESTS THAT: 1. His under other than honorable conditions (UOTHC) discharge be upgraded. 2. His narrative reason for discharge be changed. ________________________________________________________________ APPLICANT CONTENDS THAT: He had reconstructive foot surgery to stay in the military and become an officer. After his surgery, he confided in his psychiatrist that he was considering whether to self-medicate in order to alleviate his pain. The physiatrist breached the confidentiality agreement and informed the Office of Special Investigations. While recovering from surgery and heavily medicated, he was presented with paperwork to sign. He thought his leaders had his best interests in mind, however, he was ultimately discharged with an under other than honorable conditions discharge. He was also left to live with chronic pain and no medical assistance for the rest of his life. In support of his appeal, the applicant provides a 15-page personal statement and documentation from his master personnel record. The applicant’s complete submission, with attachments, is at Exhibit A. ________________________________________________________________ STATEMENT OF FACTS: The applicant enlisted in the Regular Air Force on 12 December 2000. On 24 November 2003, his commander preferred charges against him for wrongfully using marijuana and the wrongful distribution of a controlled substance, in violation of Article 112a of the Uniform Code of Military Justice (UCMJ). On 1 March 2004, the applicant, under advisement of counsel, requested that he be discharged from the Air Force in lieu of trial by court-martial. The request was approved on 4 March 2004. Pursuant to dual action processing, the applicant’s case was reviewed by the Secretary of the Air Force Personnel Council. The Board determined while the applicant indicated his use of marijuana was for the purpose of pain relief, his medical condition did not impair his ability to determine the difference between right and wrong. They found no causal relationship between his violation of the UCMJ and his medical condition and concluded the approved administrative discharge was appropriate. The applicant was discharged on 11 February 2005 and his service was characterized as under other than honorable conditions. His narrative reason for separation was listed as triable by court- martial. On 16 February 2012, the Air Force Discharge Review Board denied the applicant’s request to upgrade his discharge to honorable. ________________________________________________________________ AIR FORCE EVALUATION: AFPC/DPSOR recommends denial. The applicant faced one charge of wrongful use of marijuana and two specifications of wrongful distribution of a controlled substance, in violation of Article 112a, UCMJ. The seriousness of the offenses warranted the preferral of charges to trial by a general court-martial. If convicted, the maximum permissible punishment was a dishonorable discharge, confinement of 32 years, forfeiture of all pay and allowances and reduction to the grade of E-1. The applicant requested discharge in lieu of court-martial and in that request, he acknowledged that he could be separated with an under other than honorable conditions discharge. He was afforded the opportunity to consult with counsel and advised of the possible consequences that discharge characterization. Based on the documentation in the applicant’s master personnel file, the discharge was consistent with the procedural and substantive requirements of the discharge regulation and was within the discretion of the discharge authority. The applicant did not submit any evidence or identify any errors or injustice that occurred during the discharge process that warrants a change to his characterization of discharge. The complete DPSOR evaluation is at Exhibit C. ________________________________________________________________ APPLICANT'S REVIEW OF AIR FORCE EVALUATION: He submitted his application with medical documentation and requests the Boards consideration of the medications that he was under during the period in question. He attempted to inform the Board of how these medications affected him; he can also provide a list of the side effects to show how the medication changed his body chemistry. The applicant’s complete response, with attachments, is at Exhibit E. ________________________________________________________________ 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. We took notice of the applicant's complete submission in judging the merits of the case; however, we find no evidence of an error or injustice that occurred during the discharge process. Based on the available evidence of record, it appears the discharge was consistent with the substantive requirements of the discharge regulation and within the commander's discretionary authority. While the applicant contends the record is unjust because he was heavily medicated when making decisions regarding this discharge, under the advisement of counsel, he voluntarily requested discharge in lieu of trial by court-martial at which time he acknowledged that he understood the adverse nature of service characterized as UOTHC and the possible consequences thereof. The applicant has provided no evidence, which would lead us to believe the characterization of the service was contrary to the provisions of the governing regulation, or unduly harsh. Additionally, in the absence of any evidence concerning his post-service activities, we do not find it would be in the interest of justice to upgrade the discharge on the basis of clemency. Therefore, in view of the above and in the absence of evidence to the contrary, we find no basis upon which to recommend granting the relief sought. 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. ________________________________________________________________ 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. ________________________________________________________________ The following members of the Board considered AFBCMR Docket Number BC-2012-05222 in Executive Session on 1 August 2013, under the provisions of AFI 36-2603: The following documentary evidence was considered: Exhibit A. DD Form 149, dated 31 Oct 12, w/atchs. Exhibit B. Applicant's Master Personnel Records. Exhibit C. Letter, AFPC/DPSOR, dated 8 Jan 13. Exhibit D. Letter, SAF/MRBR, dated 3 Feb 13. Exhibit E. Letter, Applicant’s Response, 11 Feb 13, w/atchs.