RECORD OF PROCEEDINGS AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS IN THE MATTER OF: DOCKET NUMBER: BC-2014-03646 COUNSEL: NONE HEARING DESIRED: YES APPLICANT REQUESTS THAT: His Bad Conduct Discharge (BCD) be upgraded to a medical separation. APPLICANT CONTENDS THAT: 1.  The Air Force failed to give him a blood test before sending him to prison. While in prison, he was found to be HIV-positive. His medical condition would have been a reason for a medical discharge. 2.  He was not properly represented during his court-martial. His medical information, to include his mental status, was not presented during his court-martial. His lawyer did not even investigate the possibility of a medical discharge. The lawyer had him scared into thinking if he didn’t accept the pre-trial agreement, we was looking at close to 60 years in prison. The applicant’s complete submission, with attachments, is at Exhibit A. STATEMENT OF FACTS: The applicant initially entered the Regular Air Force on 15 Jan 08. On 28 Oct 09, the applicant received a referral enlisted Performance Report (EPR) covering the period 15 Jan 08 through 14 Sep 09 on which he was marked “Does Not Meet“ standards in Block 2, Standards, Conduct, Character, and Military Bearing, and in Block 5, Teamwork/Followership. The EPR indicated he had received two Letters of Reprimand (LORs) for financial irresponsibility, and a Letter of Counseling (LOC) and an LOR for insubordination and failure to execute a lawful order. On 12 May 10, the applicant’s commander punished him through non-judicial punishment (Article 15 of the Uniform Code of Military Justice (UCMJ)), for six instances of being absent without leave in violation of Article 86, UCMJ, and making a false official statement with the intent to deceive in violation of Article 107, UCMJ. For this he received a reprimand, and was reduced in the grade of Airman Basic (suspended for six months). Under General Court-Martial Order No. 7, dated 30 Sep 10, the applicant was found guilty by general court-martial of: 1.  One charge and six specification of using, distributing, and/or bringing onto a military installation, various illegal drugs, to include psilocybin mushroom, ecstasy, and marijuana in violation of Article 112a, UCMJ. 2.  One charge and one specification of assault and battery based upon unlawfully pushing and punching an individual in the face and head with a closed fist four times in violation of Article 128, UCMJ. 3.  One charge and one specification of going Absent Without Leave (AWOL) in violation of Article 86, UCMJ. 4.  One charge and one specification of wrongful and reckless conduct by grabbing the steering wheel while traveling as a passenger in a moving vehicle and causing it to crash in violation of Article 134, UCMJ. The applicant’s sentence was to be discharged with a BCD, to serve 10 months confinement, to be reduced from the grade of airman (E-2) to the grade of airman basic (E-1), and to forfeit all pay and allowances. On 25 Oct 13, the applicant was furnished an BCD, with a narrative reason for discharge of “Court Martial (Other),” after serving five years, one month, and nine days of active service. The remaining relevant facts pertaining to this application are contained in the memoranda prepared by the Air Force offices of primary responsibility (OPRs), which are attached at Exhibits C, D, and F. AIR FORCE EVALUATIONS: AFLOA/JAJM recommends denial indicating there is no evidence of an error or an injustice. The punishment adjudged by a military judge and approved by the convening authority was within the range of permissible punishments. The applicant was afforded all his appellate rights. On 11 Feb 13, the applicant petitioned the Court of Appeal for the Armed Forces (CAAF) for review, but the CAAF denied the applicant’s petition for grant of review. In accordance with 10 USC § 1552(f), the Board has no authority to overturn the court-marital conviction but may, only on the basis of clemency, correct the actions taken by the reviewing authorities, i.e., the sentence. However, in this case the applicant submitted no evidence for consideration of clemency. Therefore, we recommend the Board not grant relief based on any error or injustice with the court-martial process. A complete copy of the AFLOA/JAJM evaluation is at Exhibit C. BCMR Clinical Mental Health Consultant recommends denial indicating there is no evidence of an error or an injustice. During the course of his active-duty service the applicant endorsed recurrent episodes of depression and suicidal ideations. He first came to the attention of military mental health in Jul 09, when he was returned from deployment after reporting he had held a loaded gun to his head. He revealed in treatment that he first attempted suicide at the age of 14 by trying bed sheets around his neck in an attempt to strangle himself. He also endorsed an extended history of recurrent depression and suicidal ideation dating back to his early teens. The applicant’s medical record from prior to his court-martial proceedings contains no significant reference to any form of mental illness (psychotic process, PTSD, bipolar disorder) which might have been effectively presented as extenuating or mitigating factors at his court martial. The most consistent mental health diagnosis observed in the pre-trial medical record is a general consensus the applicant suffers from borderline personality disorder. This condition is not generally considered to be mitigating in questions of criminal behavior, and is, in fact, considered to be unsuiting (non-compensable) for continued military service and not unfitting (compensable). Furthermore, had the subject of mental health been brought up by the applicant’s trial defense, the question of the applicant’s extensive pre-service mental health history may then have been raised, bringing up the possibility of a charge of fraudulent enlistment. While the applicant does have a substantiated history of mental illness, there is no convincing evidence that having brought forth this history at the applicant’s court martial would have changed the decision of the court, either with respect to the convictions or the punishment. A complete copy of the BCMR Clinical Mental Health Consultant evaluation is at Exhibit D. APPLICANT'S REVIEW OF AIR FORCE EVALUATIONS: Copies of the Air Force evaluations were forwarded to the applicant on 4 Jan 16 for review and comment within 30 days (Exhibit E). As of this date, no response has been received by this office. ADDITIONAL AIR FORCE EVALUATION: The AFBCMR Medical Advisor recommends denial indicating there is no evidence of an error or an injustice. AFI 36-3212, Physical Evaluation for Retention, Retirement, and Separation, states “Members not eligible for disability processing are: Members Under Court-Martial (CM) Charges. Those charged with one or more offenses that could result in dismissal or punitive discharge, and those convicted and sentenced to dismissal or punitive discharge, may not undergo disability evaluation…” Therefore, individuals undergoing a court martial or who are pending a discharge are not eligible for processing through the Disability Evaluation System (DES). Addressing the applicant’s implicit contention his HIV positivity, if discovered prior to his discharge, would have formed an alternative medical basis for separation, this condition would not mitigate the court-martial charges, the discharge action, or justify a medical discharge. Even if found HIV positive, a member would not be universally medically separated following initial evaluation. An individual who is HIV positive may be found fit for retention. There is no medical basis for change in the applicant’s discharge characterization. A complete copy of the AFBCMR Medical Advisor evaluation is at Exhibit F. APPLICANT'S REVIEW OF ADDITIONAL AIR FORCE EVALUATION: A copy of the additional Air Force evaluation was forwarded to the applicant on 12 Jan 16 for review and comment within 30 days (Exhibit G). 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 applicant was timely filed 3.  Insufficient relevant evidence has been presented to demonstrate the existence of an 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 offices of primary responsibility (OPRs) and adopt their rationale as the basis for our conclusion the applicant has not been the victim of an error of injustice. Therefore, in the absence of evidence to the contrary, we find no basis to recommend granting the requested relief. 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 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-2014-03646 in Executive Session on 16 Feb 16 under the provisions of AFI 36-2603: Panel Chair Member Member The following documentary evidence was considered: Exhibit A.  DD Form 149, dated 1 Aug 14, w/atchs. Exhibit B.  Applicant's Master Personnel Records. Exhibit C.  Memorandum, AFLOA/JAJM, dated 6 Nov 14. Exhibit D.  Memorandum, BCMR Clinical Mental Health Consultant, dated 29 Dec 15. Exhibit E.  Letter, SAF/MRBR, dated 4 Jan 16. Exhibit F.  Memorandum, AFBCMR Medical Advisory, dated 12 Jan 16. Exhibit G.  Letter, SAF/MRBR, dated 12 Jan 16.