RECORD OF PROCEEDINGS
AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS

IN THE MATTER OF: 			DOCKET NUMBER: BC-2015-00999

 						COUNSEL:  NONE

						HEARING DESIRED:  YES 

APPLICANT REQUESTS THAT:

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

APPLICANT CONTENDS THAT:

He requests his discharge be upgraded for mental and health care benefits.  Both of his daughters are seeing psychologists and therapists for the anguish he experienced and because of his behavior during their childhood.  He also needs help.  He asks the Board to realize the pain of recalling the events of his Vietnam experience.

In 1981, he was the store room supervisor of the dining hall at RAF Chicksands, UK.  He and his supervisor were friends and they became friends with a British citizen.  Later, his supervisor called him into the office and instructed him to deliver a product to the British citizen.  He asked how to show accountability for the product but was told just to do it.   The items were found during a routine check and he admitted to giving him the items.  He did not incriminate his supervisor and was told by the senior enlisted advisor that if he pled guilty he would at most lose a stripe.  He then pled guilty to distributing a government item to a British citizen.  To his shock, he was given a BCD.  He was young and scared and did not know what to expect and did what he was instructed.  He knew many people who were not minorities who received lesser punishments for more serious crimes.  During his time in Vietnam, he was always instructed to follow directives.

At the time of his discharge, he was angry, depressed and distraught.  He destroyed all the court-martial materials.  His supervisor died 10 years ago and the senior enlisted advisor is also deceased.  Both of these individuals knew his character and work ethic.  They were also aware of the numerous medals and excellent performance evaluations he received.  He was also a happily married Christian with a two year old daughter.  He was active in the base chapel and was the president of the choir.  The base chaplain and the senior enlisted advisor were character witnesses at his trial.

He regrets the behavior and takes full responsibility for the role he played in the crime.  He was young and did not think of it as being a crime nor did he consider the consequences.  He was only doing what he was instructed.  He knows that he made a very unwise decision and has a great deal of remorse for the immature and unthoughtful behavior and realizes he should also not have taken the fall for his supervisor.

It has been difficult to face these facts and revisit the unfairness of his discharge.  It was even more disturbing recalling the unpleasant incidents of Vietnam.  The rage continues and his dreams and visions of Vietnam are getting worse.  His wife says he needs anger management classes and medicine to control his anger, outbursts and crying.  It is his hope that the Board will consider how the discharge and the three years he spent in Vietnam have impacted him mentally.  As a result of the discharge, he elects not to have friends for fear of betrayal.  He is also afraid to trust people and does not allow his wife and children to have friends in their home.  He feels everyone is going to betray him in some manner.  He would very much like to have peace of mind and know that the truth has been told and accepted as truth.  

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

STATEMENT OF FACTS:

The applicant entered the Regular Air Force on 21 August 1968.

The applicant’s AF Form 7, Airman Military Record, reflects he served at Tan Son Nhut AB, Vietnam and Da Nang Air Field, Vietnam from May 1969 to May 1972. 

AF Forms 910, TSgt, SSgt and Sgt Performance Report, for the reporting periods ending 29 June 1970, 29 December 1970, 29 June 1971, and 27 April 1972 reflect the applicant was assigned to the 377th Services Squadron, Tan Son Nhut AB, Vietnam.  

AF Form 910, for the reporting period ending 31 August 1972 reflects the applicant was assigned to the 6498th Air Base Wing/Services, Da Nang Air Field, Vietnam. 

According to Special Court-Martial Order (SCMO), Number 1, dated 3 March 1975, the applicant pled and was found guilty by special court-martial of stealing cleaning compounds and food items, value of less than $100, the property of the Army Air Force Exchange Service (AAFES).  Punishment included reduction to the grade of Airman First Class (A1C, E-3), forfeiture of $100 pay for two months and restriction to the limits of Eglin AFB, FL for 30 days.  Per SCMO, Number 2, dated 16 April 1975, the reduction to the grade of A1C was suspended until 2 September 1975.  

Per General Court-Martial Order (GCMO), Number 4, dated 16 December 1981, the applicant pled and was found guilty of one charge and one specification under Article 121, UCMJ for theft of food items in excess of $100 and one charge and one specification under Article 108, UCMJ for wrongful disposal of a variety of food items in excess of $100.  On 17 October 1981, the applicant was sentenced to a BCD and reduction to the grade of A1C.  On 16 December 1981, the convening authority approved the adjudged sentence.  

On 20 August 1982, he was discharged with a BCD and a narrative reason for separation of “Conviction by court-martial–other than desertion.”  He served 14 years of active duty service.  

Secretary of Defense, Supplemental Guidance to Military Boards for Correction of Military/Naval Records Considering Discharge Upgrade Requests by Veterans Claiming Post Traumatic Stress Disorder, dated 3 September 2014, states the BCMR will fully and carefully consider every petition based on Post Traumatic Stress Disorder (PTSD) brought by each veteran.  Quite often, those who served in the Vietnam theatre before PTSD was recognized do not contain substantive information concerning medical conditions in either the Service Treatment Record (STR) or personnel record.  It has therefore been extremely difficult to document conditions that form a basis for mitigation in punitive, administrative, or other legal actions to establish a nexus between PTSD and the misconduct underlying the service member’s discharge with a characterization of service of under other than honorable conditions.  The policy guidance intended to ease the application process for veterans who are seeking redress and assist the Boards in reaching fair and consistent results in these difficult cases states PTSD is not a likely cause of premeditated misconduct.  Corrections Boards will also exercise caution in weighing evidence of mitigation in all cases of misconduct by carefully considering the likely causal relationship of symptoms to the misconduct.      

On 17 June 2016, the AFBCMR provided the applicant with an opportunity to provide information pertaining to his activities since leaving the service (Exhibit F).  As of this date, this office has not received a response.  

On 6 July 2016, a copy of the Secretary of Defense memorandum dated 3 September 2014 was forwarded to the applicant for review and comment within 30 days (Exhibit H).  As of this date, no response has been received by this office.  

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 D and E.    

AIR FORCE EVALUATION:

AFLOA/JAJM recommends denial.  There is no evidence of an error or injustice with the court-martial process.  The punishment adjudged and approved by the convening authority was within the range of permissible punishments.  There is no evidence or claim that the applicant was not afforded all of his appellate rights.  In accordance with 10 U.S.C. § 1552(f), the Board has no authority to overturn the court-martial conviction but may only on that basis of clemency, correct the actions taken by the reviewing authorities.  In this case, the applicant submitted a letter in which he places blame on two deceased supervisors for his actions.  He pleads that the results of the court-martial have impacted him emotionally and resulted in him lashing out at his family.  There is no new evidence that would negate the crimes he committed, nor bring into question the appropriateness of the sentence.  Additionally, final action was taken in 1981, over 30 years ago; therefore, the application is untimely.  The applicant was also convicted at a previous court-martial which is not listed in the application for upgrade.  He was tried by special court-martial on 24 February 1975 on Eglin AFB, FL and was found guilty in accordance with his plea of one charge and one specification under Article 121, UCMJ for theft of food and cleaning compounds.  The applicant was punished with a reduction in grade to A1C and forfeiture of $100 of pay for two months and restriction to the base for 30 days.  

A complete copy of the AFLOA/JAJM evaluation is at Exhibit D.

The BCMR Psychiatric Advisor recommends upgrade of the discharge to general based solely upon clemency.  The applicant remains very ambivalent about the theft that led to his discharge and he continues to blame others for the incident and at the same time acknowledges some responsibility for his actions.  The applicant also claims the court-martial destroyed his life and affected his entire family and that he is haunted by the memories sustained during his Vietnam deployment.  As indicated per his Enlisted Performance Reports (EPRs), he served honorably in Vietnam for three years.  There are no indications he suffered from any psychiatric issues while on active duty but it is possible that he has some psychological problems with a nexus to his military service at this time.  A search of the Department of Veterans Affairs (DVA) electronic medical records did not produce any reasons and it appears the applicant has never been seen in the DVA system.  The DVA is authorized under 38 U.S.C. to offer care and compensation for any medical condition with a nexus with military service, without regard its proven impact a former service member’s fitness to serve, the narrative reason for release from service or the duration of time passed since separation.  However, even if such a nexus is established in the applicant’s case, his BCD will likely serve as a lifelong barrier to receiving these services.  

The AFLOA/JAJM advisory states that the Board has no authority to overturn the court-martial conviction, but may only on the basis of clemency, change the sentence.  The Secretary of Defense on 3 September 2014 released a directive to give “liberal consideration to veterans of the Vietnam era.”  The memorandum was directed towards veterans with possible PTSD, since PTSD was not recognized as a psychiatric condition until the 1980s.  Though not perfectly applicable to this application, the Psychiatric Advisor would recommend an upgrade of his discharge to general in order to assure the applicant’s access to the VA care since the BCD can be a barrier to obtaining the VA services.  The applicant served in the Air Force for 14 years and was deployed to Vietnam for three years and the crimes he committed did not involve violence, aggression, violation of freedoms and rights of others.  Therefore, the Psychiatric Advisor opines he should have access to treatment through the VA system.

A complete copy of the BCMR Psychiatric Advisor’s evaluation is at Exhibit E.   

APPLICANT'S REVIEW OF AIR FORCE EVALUATION:

Copies of the Air Force evaluations were forwarded to the applicant on 3 June 2016 for review and comment within 30 days (Exhibit F).  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.   We note that this Board is without authority to reverse, set aside, or otherwise expunge a court-martial conviction.  Rather, in accordance with 10 U.S.C § 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.  In this case, 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 note recent guidance from the Secretary of Defense to the Service Correction Boards that require liberal consideration of Post-traumatic Stress Disorder (PTSD) as a mitigating factor in cases like this and that said guidance requires us to liberally consider whether or not there was a causal nexus between the PTSD, or PTSD-like symptoms, and the misconduct that precipitated the discharge.  After a careful review of the circumstances in this case, we do not find any evidence that would lead us to believe there were any symptoms present at the time of the applicant’s discharge that could serve as a mitigating factor in his misconduct.  Therefore, while we note the BCMR Psychiatric Advisor recommends the applicant’s character or service should be upgraded on the basis of clemency, we find no basis to recommend granting relief under the basis of liberal consideration or on the basis of clemency.  Accordingly, we agree with the opinion and recommendation of AFLOA/JAJM and adopt its rationale as the basis for our conclusion the applicant has not been the victim of an error or 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-2015-00999 in Executive Session on 9 August 2016  under the provisions of AFI 36-2603:

	 , Panel Chair
	 , Member
	 , Member

Due to the unavailability of  ,   will sign as Acting Panel Chair.  The following documentary evidence pertaining to AFBCMR Docket Number BC-2015-00999 was considered:

	Exhibit A.  DD Form 149, dated 5 March 2015, w/atchs.
	Exhibit B.  Applicant's Master Personnel Records.
	Exhibit C.  Memorandum, SecDef, 3 September 2014.
	Exhibit D.  Memorandum, AFLOA/JAJM, dated 5 June 2015.
	Exhibit E.  Memorandum, BCMR Psychiatric Advisor, dated 
  		  2 June 2016.
	Exhibit F.  Letter, AFBCMR, dated 3 June 2016.
	Exhibit G.  Letter, AFBCMR, dated 17 June 2016, w/atch.
	Exhibit H.  Letter, AFBCMR, dated 6 July 2016.