RECORD OF PROCEEDINGS AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS IN THE MATTER OF: DOCKET NUMBER: BC-2013-03207 COUNSEL: HEARING DESIRED: YES ________________________________________________________________ APPLICANT REQUESTS THAT: 1. He be returned to active duty status so he can be dual- processed with a Medical Evaluation Board (MEB) or Physical Evaluation Board (PEB). 2. In the alternative his general (under honorable conditions) discharge be upgraded to honorable. ________________________________________________________________ APPLICANT CONTENDS THAT: His medical condition at the time of his discharge required dual processing. His chain of command ignored his medical condition and the lack of evidence as to the alleged misconduct, and discharged him in a way to minimize his due process. In support of his request, the applicant provides a counsel’s brief, copies of his Record of Nonjudicial Punishment Proceedings, Discharge Package, MEB Recommendation, Medical Records, DD Form 214, Certificate of Release or Discharge from Active Duty; Enlisted Performance Reports, medical records, and various other documents associated with his request. His complete submission, with attachments, is at Exhibit A. ________________________________________________________________ STATEMENT OF FACTS: On 22 Apr 2008, the applicant enlisted in the Regular Air Force. On 22 Mar 2013, his commander notified him that 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: On 5 May 2009, he received an Article 15 for violating a lawful order on 1 Feb 2009. He was reduced to the grade of airman and restricted to the limits of the base for 60 days and an Unfavorable Information File (UIF) was created. On 24 Jan 2013, he received an Article 15 for attempting to wrongfully use 100 milligrams of testosterone between on or about 1 Dec 2012 and on or about 31 Dec 2012, a Schedule III controlled substance. In addition, he failed to refrain from attempting to possess the prescription drug Tamoxifen without obtaining a valid prescription, with the intent to use the drug in a manner that would alter his bodily function. For these violations, he was reduced to the grade of airman first class and forfeited $1,007.00 pay, suspended through 29 Jul 2013, and a UIF was created. On 22 Mar 2013, the applicant acknowledged receipt of the discharge notification and on 27 Mar 2013, he provided a statement in his behalf. On 5 Apr 2013, the Staff Judge Advocate (SJA) found the discharge legally sufficient. On 5 Apr 2013, the discharge authority directed the applicant be discharged with a general (under honorable conditions) discharge without the opportunity for probation and rehabilitation. On 18 Apr 2013, the applicant was discharged with service characterized as general (under honorable conditions). His narrative reason for separation is Misconduct (Minor Infractions). He served on active duty for 4 years, 11 months and 27 days. ________________________________________________________________ AIR FORCE EVALUATION: AFPC/DPSOR recommends denial of the applicant’s request to upgrade his discharge to honorable. DPSOR states that based on the documentation on file in the master personnel records, the discharge to include his character of service was consistent with the procedural and substantive requirements of the discharge instruction and was within the discretion of the discharge authority. The applicant did not provide any evidence of an error or injustice that occurred in the discharge processing. According to AFI 36-3208, Paragraph 1.18.2, a general discharge is appropriate when "significant negative aspects of the airman's conduct or performance of duty outweighs positive aspects of the airman's military record." His misconduct in this case clearly outweighs the positive aspects of his service. The commander stated before recommending the discharge, every effort was made by the applicant’s supervision to rehabilitate him. He received numerous verbal and written counseling sessions and two Article 15’s for his misconduct in less than five years of active service. The complete DPSOR evaluation is at Exhibit C. AFPC/DPFD recommends denial of his request to be returned to active duty status so he can be dual-processed with a MEB or PEB. DPFD states that the preponderance of evidence reflects that the Physical Disability Division never received a referral to the PEB. Therefore, they could not have processed a dual action case or given the applicant a medical retirement/separation. The complete DPFD evaluation is at Exhibit D. The BCMR Medical Consultant recommends denial of his request to be returned to active duty status so he can be dual-processed with a MEB or PEB. The Medical Consultant states that the Board is empowered to grant the applicant's petition outright, by directing his return to active duty for completion of a MEB, followed by a referral to a PEB for a determination of his fitness to serve. However, since he 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 and knee ailment and his administrative infractions, had the applicant's MEB and PEB occurred, it is as likely as not the SAFPC would have set aside the medical discharge and executed the previously approved administrative discharge. The Board's awareness of the uses of the drug Tamoxifen may be of some value in deliberation. First, the drug is not a narcotic and is principally used as adjuvant therapy for estrogen receptor-sensitive carcinoma of the breast; acting by blocking the estrogen receptors in the tumor, thereby reducing tumor growth. It, however, has also been utilized by males presenting with breast enlargement, or gynecomastia, and for blocking the effects of estrogen excess in the athlete. The applicant also reportedly had possession of or had attempted to possess the hormone testosterone, a form of anabolic steroid used to promote muscle building and enhance performance; albeit also naturally occurring in the human. Both Tamoxifen and testosterone appear on the prohibited list published by the World Anti-Doping Agency for competitive athletic events. Viewing the applicant's case through the lens of a Discharge Review Board (DRB), the applicant could argue for an upgrade of his discharge characterization to honorable, based upon a possible inequity or impropriety, e.g., the harshness of punishment, nature and timing of his offenses. Nevertheless, after considering the totality of the paper evidence in the case file, the Medical Consultant finds the evidence insufficient to warrant the primary desired change or the alternative desired change of the record. However, the optimal venue for this review would be a personal appearance before the DRB; a non- confrontational Board comprising medical and legal experts, where legal counsel is also made available to him, where witnesses or witness statements may be presented on his behalf, and his testimony (sworn or unsworn] may be taken into account in the exposure of a possible inequity or impropriety in his discharge or the character of his service. The complete Medical Consultant’s evaluation is at Exhibit E. ________________________________________________________________ APPLICANT'S REVIEW OF ADDITIONAL AIR FORCE EVALUATION: The BCMR Medical evaluation strays far from medical topics, including a discussion of how SAFPC would rule in this case, should it be sent back for dual processing. The Medical Consultant goes on to weigh the medical evidence against the evidence of misconduct, again opining on matters reserved for the SAFPC. Although the Medical Consultant provides a retelling of the applicant’s lengthy medical history, very little of that history is discussed in the “DISCUSSION” portion of the opinion. When one looks closely at this medical history, the Medical Consultant does not discuss the fact that the applicant permanently injured a knee and shoulder in the service of his country. The Medical Consultant also ignores the medical opinion of the treating physician who recommended a MEB in this case. However, the process was short-circuited in a concerted effort to discharge the applicant from the Air Force as quickly as possible, in direct violation of his due process rights. The advisory opinions appear heavy-handed and biased. They do not include the positive aspects of the applicant’s service, but attempt to perpetuate the injustice of this case. There are only two ways to right the wrong that has been done – either return him to duty for dual processing, or grant him an honorable discharge. Counsel’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 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 counsel’s response to the BCMR Medical evaluation and Air Force OPR is noted, he has not provided substantial 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. 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 issue(s) 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 this application in Executive Session on 24 Apr 2014, under the provisions of AFI 36-2603: , Chair , Member , Member The following documentary evidence was considered in AFBCMR BC- 2013-03207: Exhibit A. DD Form 149, dated 1 Jul 2013, w/atchs. Exhibit B. Applicant's Master Personnel Records. Exhibit C. Letter, AFPC/DPSOR, dated 30 Aug 2013. Exhibit D. Letter, AFPC/DPFD, dated 23 Sep 2013 Exhibit E. Letter, BCMR Medical Consultant, dated 15 Nov 2013. Exhibit F. Letter, SAF/MRBC, dated 15 Nov 2013. Exhibit G. Letter, Counsel, dated 15 Dec 2013. Chair 1