RECORD OF PROCEEDINGS AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS IN THE MATTER OF: DOCKET NUMBER: BC-2013-01949 XXXXXXX COUNSEL: NONE HEARING DESIRED: NO ________________________________________________________________ APPLICANT REQUESTS THAT: 1. His general (under honorable conditions) discharge be upgraded to honorable. 2. His narrative reason for separation be changed to “physical disability.” ________________________________________________________________ APPLICANT CONTENDS THAT: His discharge is unjust. A Medical Evaluation Board (MEB) should have been initiated; instead he was administratively discharged. An honorable discharge is appropriate when the quality of the service has generally met standards of acceptable conduct and performance or is otherwise meritorious. He was found guilty for his actions that resulted in Letters of Reprimand (LOR). The rebuttals he presented were not even considered. He accepts responsibility for his actions; however, they should not be considered a “pattern of misconduct.” He has never been in trouble on duty and in fact has passed all training, certifications, furthered his education, attended squadron events and contributed to causes. He was initially injured in 2010 during Basic Military Training (BMT); however, he was instructed not to go to the hospital if he could help it and to finish BMT and Technical School. One year after his arrival to his first duty station he realized he could no longer bear the pain and had surgery. In 2012, he reinjured his shoulder in a car accident. His surgeon advised him that the only way to remain in the service was to have surgery involving a bone graft. However, he elected not to have surgery due to the possible side effects. His Primary Care Manager (PCM) advised him he would undergo an MEB because he would never be worldwide qualified. His PCM also told him that he would receive a medical separation with no disability benefits because he had declined full military care. He was fine with this choice because he made the best decision concerning his health. Later that day his commander administered the notification of discharge. He was subsequently told by his PCM that the MEB process would be terminated due to his pending discharge. He never signed documentation denying medical care, which meant he still had an opportunity to accept surgery. He has no doubt that his discharge was processed because his commander knew he would be medically separated in the near future. He refuses to believe that the Air Force would enforce a discharge that would deny a veteran medical care. In support of his request, the applicant provides a personal statement, copies of his DD Form 214, Certificate of Release or Discharge from Active Duty; Referral Enlisted Performance Report (EPR), medical records, and various other documents associated with his request. His complete submission, with attachments, is at Exhibit A. ________________________________________________________________ STATEMENT OF FACTS: On 7 Sep 2010, the applicant enlisted in the Regular Air Force for a period of four years. On 15 Oct 2012, his commander notified him he was recommending he be discharged from the Air Force under the provisions of AFPD 36-32, Military Retirements and Separations and AFI 36-3208, Administrative Separation of Airman. The specific reasons for his action are reflected in the Notification Memorandum at Exhibit B. On 15 Oct 2012, the applicant acknowledged receipt of the discharge notification and on 18 Oct 2012, he provided a rebuttal. On 24 Oct 2012, the Staff Judge Advocate (SJA) found the discharge legally sufficient. The applicant stated that he was undergoing a MEB; however, JA contacted his PCM who indicated the applicant was not undergoing an MEB, nor was he required to based on his current medical condition. On 9 Nov 2012, the applicant was discharged with a service characterized as general (under honorable conditions). His narrative reason for separation is Misconduct (Other). He served a total of two years, two months and three days of active duty. The remaining relevant facts pertaining to this application are contained in the letters prepared by the appropriate office of the Air Force and the BCMR Medical Consultant. Accordingly, there is no need to recite these facts in this Record of Proceedings. ________________________________________________________________ AIR FORCE EVALUATION: AFPC/DPSOR recommends denial. DPSOR states that based on the documentation on file in the master personnel records, the discharge was consistent with the procedural and substantive requirements of the discharge instruction and was within the discretion of the discharge authority. DPSOR found no error or injustice in the applicant's discharge from the Air Force, nor did the applicant submit any evidence or identify any errors or injustices in the discharge processing. Airmen are subject to separation for misconduct that disrupts order, discipline, or morale within the military community. This category of misconduct usually involves causing dissent, disruption, and degradation of mission effectiveness. As reflected in the applicant's discharge package, he has shown a continued disregard for military standards and good order and discipline. The applicant received numerous counselings on various occasions. Despite the unit's best efforts, he did not respond to the counselings he received. His repeated incidents of misconduct were reflective of airmen who were unwilling to conform to Air Force Standards. Moreover, according to AFI 36- 3208, paragraph 1.18.2, if an airman's service has been honest and faithful, a general (under honorable conditions) service characterization is warranted when significant negative aspects of the airman's conduct or performance of duty outweigh positive aspects of the airman's military record. The negative aspects of the applicant’s short Air Force career outweigh the positive. Therefore, a general (under honorable conditions) service characterization is most appropriate in this case. The complete DPSOR evaluation is at Exhibit C. The BCMR Medical Consultant recommends denial. The Medical Consultant states that the applicant implicitly contends that his administrative discharge was carried out to prevent him from receiving the medical discharge which he believes would have taken place, had it not been for his commander's intervention. Reflecting upon reasons for the applicant's initial proposed MEB action, the Medical Consultant is aware of policies covering actions when a service member refuses care or is noncompliant with recommended treatment. However, given the uncertain outcome of a second surgical procedure to treat his shoulder, noting that it would also require bone grafting, he acted reasonably when he elected to decline this second procedure. Thus, had the applicant's MEB been continued with a subsequent review by a Physical Evaluation Board (PEB), the PEB would have considered the reasonableness of the declination and would have found him unfit with disability compensation. However, since the applicant would have been concurrently the subject of an approved administrative discharge, his case would have been referred to the Secretary of the Air Force Personnel Council (SAFPC) for a "dual-action" review of both the administrative and medical bases for discharge, and to determine which was the appropriate reason for discharge and the appropriate characterization of service. In conducting such reviews, the SAFPC considers the relative gravity of the administrative infractions and the seriousness of the medical condition, as well as a search for any causal or mitigating relationship between the administrative infractions and the medical condition, in making its final determination. Since there is no causal or mitigating relationship between the applicant's shoulder ailment and his administrative infractions, had the applicant's MEB and PEB been continued, it is as likely as not that SAFPC would have set aside the medical discharge and executed the previously approved administrative discharge. Thus, aside from the appearance of an impropriety by issuance of the discharge notification on the very day of the planned MEB proceeding, notwithstanding the higher standards of conduct expected of security forces members, the Medical Consultant found this paper review alone insufficient to prove error or injustice to warrant the requested change of the record. However, viewing the applicant's case through the lens of a Discharge Review Board (DRB), the applicant could argue for an upgrade of discharge characterization to honorable, based upon a possible inequity or impropriety, e.g., the harshness of punishment, noting the issues in extenuation he raised in his rebuttals to the LORs, his response to the referral EPR, and in his response to the discharge notification. However, the optimal venue for this review would be a personal appearance before the DRB, where the applicant's sworn or unsworn testimony can be heard, witness statements considered, live statements from witnesses may be heard, the assistance of legal counsel made available, and his post-service conduct and accomplishments collectively taken into consideration. The complete Medical Consultant’s evaluation is at Exhibit E. ________________________________________________________________ APPLICANT'S REVIEW OF ADDITIONAL AIR FORCE EVALUATION: He disputes the advisory opinions – specifically the Medical Consultant who underestimates the length of time he had his shoulder injury and minimizes its severity. The applicant goes into extensive detail about the errors and injustices of his discharge and petitions the Board to approve his request. He asserts he was found unfit for worldwide duty and medical personnel had an obligation to process him for a MEB. The MEB should have been allowed to occur before any other administrative separation actions were allowed to take place. Instead he was administratively discharged. He should be compensated for his injury. He was permanently disqualified from worldwide duty. Therefore, if all instructions were followed, he would have been separated under the provisions of AFI 36-3212, Physical Evaluation for Retention, Retirement, and Separation, as well as, DoD Directive 1332.18, Separation or Retirement for Physical Disability, with a characterization of honorable and narrative reason of physical disability. In further support of his request, the applicant provides extracts of AFI 36-3208, AFI 48-123, Medical Examinations and Standards, and various other documents related his appeal. The applicant’s complete response, with attachments, is at Exhibit F. ________________________________________________________________ THE BOARD CONCLUDES THAT: 1. The applicant has exhausted all remedies provided by existing law or regulations. 2. The application was timely filed. 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 agree with the opinions and recommendations of the Air Force Office of Primary Responsibility (OPR) and the BCMR Medical Consultant and adopt their rationale as the basis for our conclusion the applicant has not been the victim of an error or injustice. While the applicant’s response to the BCMR Medical Consultant and Air Force OPR is noted, he has provided no evidence which, in our opinion, successfully refutes the assessment of his case by the aforementioned evaluations. Therefore, in the absence of 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 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 this application in Executive Session on 11 Feb 2014, under the provisions of AFI 36-2603: , Panel Chair , Member , Member The following documentary evidence was considered in AFBCMR BC-2013-01949: Exhibit A. DD Form 149, dated 19 Apr 2013, w/atchs. Exhibit B. Applicant's Master Personnel Records. Exhibit C. Letter, AFPC/DPSOR, dated 21 Jun 2013. Exhibit D. Letter, BCMR Medical Consultant, dated 1 Jul 2013. Exhibit E. Letter, SAF/MRBC, dated 3 Jul 2013. Exhibit F. Letter, Counsel, dated 4 Jul 2013, w/atchs. 8 9