RECORD OF PROCEEDINGS AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS IN THE MATTER OF: DOCKET NUMBER: BC-2014-02114 COUNSEL: NONE HEARING DESIRED: NO APPLICANT REQUESTS THAT: His Bad Conduct Discharge (BCD) be upgraded to General (Under Honorable Conditions). His DD Form 214, Certificate of Release or Discharge from Active Duty, be corrected to reflect the award of the following Air Force Medals and/or Ribbons: - NCO Professional Military Education Graduate Ribbon (NCOPMER) with two Bronze Oak Leaf Clusters. - Southwest Asia Service Medal (SWASM) with one Bronze Service Star (Administratively corrected). His DD Form 214, Block 18, Remarks, be corrected to reflect his service between 2 Aug 79 and 3 Mar 88 be characterized as “Honorable”. By amendment at Exhibit A1, He be reimbursed for all attorney fees associated with this petition to the amount of $4,500. By amendment at Exhibit A2, He be compensated for being forced to live with the stigma of a Bad Conduct discharge for more than 22 years, as well as not being able to apply for federal jobs. By amendment at Exhibit F, His Bad Conduct discharge be updated to Honorable. By amendment at Exhibit F, His grade of TSgt (E-6) be restored with a direct promotion to the grades of MSgt (E-7) and SMSgt (E-8) along with all back pay and allowances, effective 23 Nov 92. By amendment at Exhibit F, His reason for separation be changed to “Secretarial Authority” and his separation code be changed to a code depicting “Physical Disability”. By amendment at Exhibit F, He be reimbursed for all expenses incurred for all of his service connected health conditions, to include his Psychotherapy fees and Gallbladder removal surgery, due to his Presumptive Eligibility for his service in Southwest Asia during Operations DESERT SHIELD/STORM. APPLICANT CONTENDS THAT: He served honorably between 2 Aug 79 and 3 Mar 88; which is not properly reflected and cannot be merged into the period of service involving the BCD, as it is a separate and distinct period of service. He waited until now to address his concerns because his crime required proof of rehabilitation which could only come with the passage of time. Furthermore, the failure to recognize his Honorable service prior to 1988 has caused him great harm due to the denial of Department of Veterans Affairs (DVA) benefits. The applicant is asking the Board to recognize that his criminal act was spurred on by a debilitating mental medical condition he has since overcome. He is now a model citizen. His conviction will always stand; however, he asks that his characterization of service be upgraded in light of his service record, overcoming a mental disability, and his post service record. After his release from confinement, the applicant again became a contributing member of society. He has obtained vocational education and increased his skills and became certified in Industrial Refrigeration Operations. He has had no criminal violation in the civilian sector since 1987. The applicant’s complete submission, with attachments, is at Exhibit A. STATEMENT OF FACTS: The applicant initially entered the Regular Air Force on 2 Aug 79. On 17 May 92, the applicant was tried by a General court-martial where a military judge found him guilty, contrary to his plea, of three specifications of indecent acts with minors, in violation of Article 134, Uniform Code of Military Justice (UCMJ). On 13 Aug 92, the military judge sentenced the applicant to be discharged with a BCD, three years confinement and reduction from the grade of Technical Sergeant (E-6) to the grade of Airman Basic (E-1). On 23 Nov 92, the convening authority approved the adjudged sentence. On 18 Apr 94, the Air Force Court of Military Review found that the approved findings and sentence were correct in law and fact. On 19 Aug 94, the United States Court of Military Appeals denied the applicant’s petition for grant of review. On 12 Oct 94, the applicant was furnished a BCD, and was credited with 13 years, 7 months, and 20 days of active service. The applicant’s DD Form 214 reflects that he was awarded the SWASM. On 17 Nov 14, the applicant released his attorney from any further obligations and requested any further correspondence regarding this case be directed to the applicant. The remaining relevant facts pertaining to this application are contained in the memorandums prepared by the Air Force offices of primary responsibility (OPR), which are attached at Exhibits C, D, and E. AIR FORCE EVALUATION: AFLOA/JAJM recommends denial of the applicant’s request to upgrade his discharge indicating there is no evidence of an error or an injustice. The applicant contends he was suffering from a mental condition at the time of the offense which should have served to mitigate against a BCD. At the time of trial, a certified psychiatrist diagnosed the applicant as suffering from paraphilia, meaning he wanted to see young individuals unclothed, but he has since been able to recover from this dysfunction and would like to remove this stigma. The requested relief cannot be done administratively. The application has not been submitted in a timely fashion. The applicant argues the Board should still consider his application because he has lived with the BCD for twenty years, he has lived a productive life, and the BCD does not characterize his years of service. A complete copy of the AFLOA/JAJM evaluation is at Exhibit C. AFPC/DPSID recommends denial of the applicant’s request for the NCOPMER indicating there is no evidence of an error or an injustice. The NCOPMER was established on 28 Aug 1962, and awarded to in- residence graduates of a certified NCO professional military education (PME) school: NCO Preparatory Course, Airman Leadership School, NCO Leadership School, NCO Academy, Senior NCO Academy (or in-residence graduates of the US Army Sergeant Major Academy, the US Navy Senior Enlisted Academy, US Marine Corps Advanced Staff NCO Academy, and the US Coast Guard Chief Petty Officer Academy) and the Chief’s Leadership Course. Do not award the NCOPMER to members who only complete PME correspondence courses or similar PME correspondence courses conducted by other military services. Also, the ribbon is not awarded for completion of local (base or unit offered) professional development seminars, courses or classes. After a thorough review of the applicant’s official military personnel record, they were unable to verify the award of the NCOPMER with two Bronze Service Stars. The Supervisory Development Course listed on the applicant’s Report on Individual Person is not an authorized NCOPME course for award of the NCOPMER. The NCOPMER with one Bronze Service Star as annotated on the applicant’s DD Form 214 is correct. As for his request for the SWASM, a review of the applicant’s records revealed the SWASM should have been awarded to the applicant and his records will be corrected administratively. A complete copy of the AFPC/DPSID evaluation is at Exhibit D. AFPC/DPSOR recommends denial of the applicant’s request to remove the statement “Member has completed first full term of service” indicating there is no evidence of an error or an injustice. They do recommend the Board approve amending his DD Form 214 to add the following statement: “Continuous Honorable Active Service from 2 Aug 79 until 3 Mar 88”. DoDI 1336.01, Certificate of Release or Discharge from Active Duty (DD Form 214/5 Series) and AFI 36-3202, Separation Documents, direct specific use of the statements on the DD Form 214. The reference to completing first full term of service is required by the AFI, Table 4 to indicate if the initial term of service was completed or not and has a direct impact on veteran benefits/entitlements. The presence of the statement of the DD Form 214 is required and accurate as reflected on the applicant’s DD form 214. A review of the applicant’s DD Form 214 did identify the omission of the required statement “Continuous Honorable Active Service from 2 Aug 79 until 3 Mar 88”. The honorable service statement is required in the remarks section (block 18) for service members who have previously reenlisted without being issued a DD Form 214, and who are being separated with any discharge characterization except “Honorable”. The “from” date shall be the date of initial entry into active duty and the “until” date shall be the date before commencement of the current enlistment. A complete copy of the AFPC/DPSOR evaluation is at Exhibit E. APPLICANT'S REVIEW OF AIR FORCE EVALUATION: The applicant provided 22 pages of documents in which he requests additional corrective actions. Of note, he contends that the Trial Defense Counsel failed to object to the Staff Judge Advocate’s characterization of his prior service as satisfactory. This is further evidence of his Trial Counsel failure to perform within legal standards. This issue was presented and granted as a motion to the Air Force Court of Military Review, but was never addressed by either of his Trial Defense counselors in their Sworn Affidavits, when answering his Appellate Defense Counsels assertions of Ineffective Assistance of Counsel. This fact along with other identified deficiencies in their representation of the applicant resulted in him receiving a longer, harsher sentence and materially prejudiced him. He also contends that based on his diagnosis of Paraphilia, he should have been medically retired and receive disability retirement pay at the rate of 30%, from the date of discharge, 12 Oct 94, along with all benefits that go along with retirement. The applicant desires to be duly compensated for being wrongfully forced to serve a three year sentence of confinement and wrongfully blocked of his legally earned DVA benefits, for his prior periods of Honorable service for more than 22 years. ADDITIONAL MEDICAL EVALUATIONS: The BCMR Medical Consultant recommends denial. The Medical Consultant advises the applicant was diagnosed with a mental disorder, paraphilia, and his appeals are related to a mental disorder. He has not challenged the accuracy or appropriateness of his diagnosis. He feels it should have qualified him for a medical separation or retirement. Paraphilia, in accordance with DoD Instruction 1332.38, Physical Disability Evaluation, Nov 96, were listed among specific conditions not constituting a disability and are not ratable in the absence of an underlying ratable causative disorder. Bottom line: the applicant’s paraphilia would not have been considered a condition eligible for processing as a disability. His acts, albeit defined under the diagnosis of paraphilia, constituted misconduct; meaning it may explain the behavior, but does not excuse the behavior. Since the applicant was not concurrently eligible for, nor undergoing disability processing he would not have been eligible for dual-action processing. No evidence has been presented that determined the applicant was mentally incompetent at the time of his misconduct or at the time of his Court proceedings. Moreover, a board-certified psychiatrist testified, in response to the question asking whether there was "some “type of compulsion to act as a result of this disease, “from an absolute sense,” the psychiatrist responded, the applicant “was able to resist the compulsion,” but did concede that there ‘was a point that he reached where it would have been very difficult for him to resist acting on his impulses and urges.” They opine difficulty resisting impulses and urges does not constitute insanity. A complete copy of the BCMR Medical Consultant evaluation is at Exhibit H. The BCMR Mental Health Consultant recommends denial. The BCMR Clinical Mental Health Consultant opines that the applicant’s acts, albeit described under the diagnosis of paraphilia, constituted misconduct. The applicant was not in a state of mind as to mitigate his actions. Additionally, according to DoD Instruction 1332.38 paraphilia is listed among specific conditions not constituting a disability and are not ratable in the absence of an underlying ratable causative disorder. Paraphilia is, therefore, generally classified as an “unsuiting” mental disorder and would not have been considered a condition eligible for processing as a disability. A complete copy of the BCMR Medical Consultant evaluation is at Exhibit I. Copies of the BCMR’s Medical and Clinical Mental Health evaluations were forwarded to the applicant on 15 Sep 15 for review and comment within 30 days (Exhibit J). As of this date, no response has been received by this office. 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 an error or injustice with respect to the applicant’s BCD. We note this Board is without authority to reverse, set aside, or otherwise expunge a court-martial conviction. Rather, in accordance with Title 10, United States Code, Section 1552(f), actions by this Board are limited to corrections to the record to reflect actions taken by the reviewing officials and action on the sentence of the court- martial for the purpose of clemency. We find no evidence which indicates 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). We have considered the applicant’s overall quality of service, the court-martial conviction which precipitated the discharge, and the seriousness of the offenses of which convicted. However, in the absence of any evidence related to the applicant’s post-service activities that would enable us to determine if his accomplishments since his discharge are sufficient to overcome the misconduct for which he was discharged, we find no basis upon which to favorably consider this application. In view of this determination, there exists no basis upon which to recommend favorable consideration on the remainder of his requests. Therefore, the Board denies reinstatement to the grade of TSgt or subsequent promotions, a change in the narrative reason for separation or a change in the applicant’s separation program designation code. Similarly, because this Board found no merit in the applicant’s request to upgrade his discharge, the applicant’s request regarding reimbursement of attorney’s fees, alleged service connected medical expenses, or compensation of any other kind is also denied. The Board notes that even if the applicant’s requested upgrade were granted, we have no authority under AFI 36-2603, Air Force Board for Correction of Military Records, paragraph 8.3 to pay expenses of any kind incurred by or on behalf of an applicant in connection with a correction of military records under 10 U.S.C. §1552. Finally, with regard to the NCOPMER, we are in agreement with the opinion and recommendation of AFPC/DPSID and adopt their rationale that no basis exists to grant relief. 4. Sufficient relevant evidence has been presented to demonstrate the existence of an error or injustice to warrant partial relief regarding the remarks section of the applicant’s DD Form 214. We are in agreement with AFPC/DPSOR’s recommendation to add the statement pertaining to continuous honorable active service as worded “Continuous Honorable Active Service from 2 Aug 79 until 3 Mar 88”. The honorable service statement is required in the remarks section (block 18) for service members who have previously reenlisted without being issued a DD Form 214, and who were separated with any discharge characterization except “Honorable”. Therefore, in addition to the already granted administrative correction, we recommend the applicant’s record be corrected to the extent indicated below. THE BOARD DETERMINES THAT: The pertinent military records of the Department of the Air Force relating to APPLICANT be corrected to reflect that his DD Form 214, Certificate of Release or Discharge from Active Duty, Block 18, Remarks, issued on 12 October 1994, be amended to include the following statement, “Continuous Honorable Active Service from 2 August 1979 through 3 March 1988”. The following members of the Board considered AFBCMR Docket Number BC-2014-02114 in Executive Session on 7 Apr 15 and 15 Oct 15 under the provisions of AFI 36-2603: , Panel Chair , Member , Member The following documentary evidence pertaining AFBCMR Docket Number BC-2014-02114 was considered: Exhibit A. DD Form 149, dated 16 May 14, w/atchs. Exhibit B. Applicant's Master Personnel Records. Exhibit C. Memorandum, AFLOA/JAJM, dated 14 Jul 14. Exhibit D. Memorandum, AFPC/DPSID, dated 8 Aug 14. Exhibit E. Memorandum, AFPC/DPSOR, dated 30 Sep 14. Exhibit F. Letter, SAF/MRBR, dated 10 Nov 14. Exhibit G. Applicant’s Letter, dated 19 Nov 14. Exhibit H. Memorandum, BCMR Medical Consultant, dated 4 Aug 15. Exhibit I. Memorandum, BCMR Clinical Mental Health Consultant, dated 14 Sep 15. Exhibit J. Letter, SAF/MRBR, dated 15 Sep 15.