ADDENDUM TO RECORD OF PROCEEDINGS
AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS

IN THE MATTER OF: 			DOCKET NUMBER: BC-2014-02114

 						COUNSEL:  NONE

						HEARING DESIRED:  YES

APPLICANT REQUESTS THAT:

His Bad Conduct Discharge (BCD) be upgraded to general (under honorable conditions).  

RESUME OF FACTS:

The applicant entered the Regular Air Force on 2 August 1979.

According to General Court-Martial Order, Number 2, dated 23 November 1992, the applicant was charged, pled not guilty, and found guilty of three specifications in violation of Article 134, Uniform Code of Military Justice (UCMJ) in that on or about 17 May 1992 at Misawa AB, Japan commit an indecent act upon the body of a female under 16 years of age, not his wife, by repeatedly rubbing her vaginal area with intent to gratify his sexual desires.  The sentence adjudged on 13 August 1992 was a BCD, confinement for three years and reduction to the grade of Airman Basic (AB, E-1).  

On 12 October 1994, he was discharged with a BCD.  He served 13 years, 7 months and 20 days of active duty service.  

In the applicant’s initial case, he requested the Board upgrade his BCD to general (under honorable conditions), he be awarded the Noncommissioned Officer Professional Military Education Graduate Ribbon with two Bronze Oak Leaf Clusters (NCOPMER w/2 BOLCs), he be reimbursed the costs for all attorney fees in the amount of $4,500, he be compensated for being forced to live with the stigma of a BCD, his grade of Technical Sergeant (TSgt, E-6) be restored, he be promoted to the grade of master sergeant (MSgt, E-7) and senior master sergeant (SMSgt, E-8) with back pay, his narrative reason for separation be changed to “Secretarial Authority,” his separation program designator (SPD) code be changed to reflect “physical disability” and he be reimbursed for medical expenses incurred since his discharge.  The applicant’s request for award of the Southwest Asia Service Medal with one Bronze Service Star (SWASM w/1 BSS) was administratively corrected.

On 7 April and 15 October 2015, the Board considered the applicant’s requests.  The Board agreed with the opinion of AFPC/DPSOR that the applicant served honorably during a prior enlistment and recommended his DD Form 214, Certificate of Release or Discharge from Active Duty, Item 18, Remarks, be amended to reflect “Continuous Honorable Active Service from  2 August 1979 until 3 March 1988.”  The Board noted per 10 U.S.C. § 1552(f) it was without authority to reverse, set, aside or otherwise expunge a court-martial conviction and was limited to corrections to the record to reflect actions taken by reviewing officials and actions on the sentence of the court-martial for the purpose of clemency.  The Board found no evidence to indicate the applicant’s service characterization, which had its basis in his court-martial conviction and was a part of the sentence of the military court was improper or that it exceeded the limitations set forth in the Uniform Code of Military Justice (UCMJ).  The Board found that based on the absence of any information regarding the applicant’s post-service activities, there was no basis to warrant granting an upgrade of his discharge based on clemency.  In view of the aforementioned and the recommendations of the Air Force offices of primary responsibility (OPR), the Board denied the applicant’s remaining requests.    

In a new DD Form 149, dated 14 December 2015, the applicant requests reconsideration of his request for upgrade of his BCD to general (under honorable conditions).  The applicant states the Board violated his due process rights by not referring the additional evaluations rendered in his case by the BCMR Medical and Mental Health Consultants and that not all of his issues were addressed before his case was denied.  The applicant also contends the mental health evaluation did not include the opinion of a clinical psychologist or psychiatrist as required.  He suffered from a severe mental disease, paraphilia, not otherwise specified (NOS) or defect at the time of his alleged misconduct.  He was diagnosed by an Air Force Sanity Board while on active duty.  An Air Force board certified psychiatrist and Chief of Mental Health at Yokota AB, Japan testified his behavior was a result of his disorder.  The psychiatrist testified in court that he was suffering from cognitive distortions which is reflected in the record of trial.  He has lived with the stigma of a BCD for more than 22 years.  He has been a law abiding and tax paying citizen since his release from confinement.  He still struggles with his disease and suffers from anxiety but remains steadfast in keeping it in control with medication, mental health counseling, psychotropic drugs and family support.  He has been gainfully employed and married for 22 years. 

The applicant states as a condition of his parole, he completed sex offender treatment.  He satisfied this requirement prior to his release from prison on 14 August 1995.  The characterization of his discharge prevented him from Veterans Affairs (VA) benefits and services.  He was advised by the VA to pursue correction of his records through the BCMR.  Upon correction of his records to show his honorable service for the period of 2 August 1979 through 3 March 1988, he immediately sought treatment by a VA psychiatrist.  

The Air Force Sanity Board should have referred him for a medical evaluation board (MEB).  The decision of the Air Force to court-martial him deprived him of the opportunity to have his severe mental disease, his diabetes, hypertension and athlete’s foot evaluated through the Disability Evaluation System (DES) prior to his discharge.   There is evidence of arbitrary and capricious actions by his command.  All requirements of law and regulations were not met and his rights were not fully protected through the separation process.  The act committed on his part was not viewed as a mental illness but as a negative and deviant action that reflected negatively on the Air Force.  

In further support of his request, the applicant submits a letter from the National Association for Black Veterans, North Carolina State Command Commander, dated 28 September 2016.  The letter states the applicant’s request for upgrade of his BCD to general (under honorable conditions) warrants reconsideration due to the applicant’s age, character, health and belief that a change in the applicant has taken place.  The applicant requires medical assistance which cannot be obtained without a change in his discharge.  The applicant continues to serve a life sentence of inconveniences. 

In the initial case, the BCMR Medical Consultant noted the life sentence as a sexual offender with a BCD may have upon the applicant, noting he has reportedly turned his life around and has become a productive, married and employed citizen.  The Medical Consultant noted the option of the Board to upgrade the applicant’s discharge based upon clemency pending an opinion from a psychologist or psychiatrist.  The BCMR Mental Health Consultant recommended denial of the applicant’s requests and found no evidence of inequity or injustice.  The applicant’s acts, albeit described under the diagnosis of paraphilia, constituted misconduct.  He was not in a state of mind as to mitigate his actions.  Additionally DODI 1332.38, Physical Disability, November 1996, did not include paraphilia as a condition constituting a disability and it was not a ratable condition in the absence of an underlying ratable causative disorder.  Paraphilia is generally classified as an “unsuiting” mental disorder and would not have been considered a condition eligible for processing through the DES.  

On 27 September 2017, the applicant was provided a copy of the Secretary of Defense, Consideration of Discharge Upgrade Requests Pursuant to Supplemental Guidance to Military Boards for Correction of Military/Naval Records Considering Discharge Upgrade Requests by Veterans Claiming Post Traumatic Stress Disorder, dated 24 February 2016, which states efforts were required to ensure all veterans who sacrificed much in service receive the benefits listed in the Supplemental Guidance dated 3 September 2014.  The BCMR will fully and carefully consider every petition based on PTSD brought by each veteran.   Liberal consideration will be given in petitions for changes in characterization of service for members whose service treatment record entries document one or more symptoms with the diagnostic criteria of PTSD or PTSD related conditions.  Special consideration will be given to VA determinations which document PTSD or PTSD related conditions connected to military service and liberal consideration in cases where civilian providers confer the diagnosis of PTSD or PTSD related symptoms at the time of service or the PTSD or a PTSD-related disorder existed at the time of discharge which might have mitigated the misconduct that caused the under other than honorable conditions characterization of service.  It noted PTSD is not a likely cause of premeditated misconduct.  Correction Boards will exercise caution in weighing evidence of mitigation in all cases of misconduct by carefully considering the likely causal relationship of symptoms to the misconduct.  
	
In a rebuttal response, the applicant states the Board should obtain an opinion from a clinical psychologist or psychiatrist before rendering an opinion in his case.  He also states the BCMR Medical Consultant is not qualified to give an advisory opinion on non-medical issues and that AFLOA/JAJM has not addressed all of his issues.  He also submitted new evidence through the National Association of Black Veterans which has not been addressed by the advisory opinions.   To ensure due process, all correspondence should be referred to the applicant.  

The applicant cites Army BCMR case AR2002076552 as precedent to grant his case.  The applicant in that case, like him, suffered from an anxiety disorder and met a sanity board.  He was an outstanding soldier for many years and was not involved in any misconduct prior to the incidents that led to his discharge.  Notwithstanding the advisory opinions, the Army BCMR believed the applicant was suffering from PTSD, which was not diagnosed at the time of his discharge.  The psychiatrist concluded his condition was a “personality disorder;” however the Army BCMR granted full relief.  On 27 January 1989, the VA found the applicant in this case to be 100 percent disabled due to PTSD.  The Army BCMR found the applicant served honorably in Vietnam and was awarded the Silver Star for gallantry in action.  He was also hospitalized for psychiatric reasons several times following his return from Vietnam.  

The applicant’s complete submission, with attachments, is at Exhibit R.  

THE BOARD CONCLUDES THAT:

1.  After thoroughly reviewing the additional documentation submitted in support of his appeal and the evidence of record, we do not believe the applicant has overcome the rationale expressed in the previous decision.  The applicant also contends his due process rights were violated in his initial application as the advisory opinions rendered by the BCMR Medical and Mental Health Consultants were not provided to him for review and comment prior to the Board’s review of his case.  We do not know why the applicant was not in receipt of these advisory opinions.  However, it is evident based on the additional submission the applicant is now in receipt of these advisory opinions.   The applicant asserts he was denied a Medical Evaluation Board (MEB) based on his mental health diagnosis; however, we disagree.  In this respect, we agree with the opinions and recommendations of the BCMR Medical and Mental Health Consultants that the applicant’s condition of paraphilia at the time was classified as “unsuiting” and was not a condition eligible for processing through the Disability Evaluation System (DES).  Therefore, we find no evidence the applicant was unjustly denied a MEB.  With respect to the applicant’s assertion that a clinical psychiatrist did not provide a mental health evaluation in his case, we have confirmed the BCMR Mental Health advisory opinion dated 14 September 2015 was in fact issued by a clinical psychiatrist as required.  The applicant also asserts relief is warranted based on precedent established in an Army BCMR case; however, we disagree.  Every case before this Board is considered on its merit since the circumstances in each case are seldom identical.  After a careful review of the case provided by the applicant, we find that case distinguishable from the applicant’s requests.  We considered upgrading the discharge based on clemency; however, we do not find the evidence presented sufficient to grant on that basis.  In view of the above, and in the absence of evidence to the contrary, we find no basis to recommend granting the requested relief.

2.  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 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-2014-02114-2 in Executive Session on 7 November 2017 under the provisions of AFI 36-2603:

	Panel Chair
	Member
	Member

The following documentary evidence in AFBCMR Docket Number BC-2014-02114-2 was considered:

	Exhibit K.  DD Form 149, dated 14 December 2015, w/atchs.
	Exhibit L.  Excerpts of Personnel Records
	Exhibit M.  Record of Proceedings, w/Exhibits, undated
	Exhibit N.  Memorandum, BCMR Medical Consultant, dated 
			  4 August 2015.
	Exhibit O.  Memorandum, BCMR Mental Health Consultant, dated
			  14 September 2015.
	Exhibit P.  Memorandum, Secretary of Defense, dated 24 February 
			  2016, w/atch.
	Exhibit Q.  AFBCMR Letter, dated 27 September 2017.
	Exhibit R.  Applicant Letter, dated 11 October 2017, w/atchs.