RECORD OF PROCEEDINGS
AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS

IN THE MATTER OF:			DOCKET NUMBER:  BC-2015-02862
		
  						COUNSEL:  NONE

						HEARING DESIRED:  NO

APPLICANT REQUESTS THAT:

The following changes to her record:
1.	Narrative reason be changed to medical disability or retirement;
2.	Her separation code be changed from GKL (Sexual Perversion); (to be administratively corrected)
3.	Her rank of Staff Sergeant (E-5) be reinstated;
4.	Her character of service be changed from Under Honorable Conditions (General) to Honorable; and,
5.	Her date of entry be changed to 3 Oct 96.

APPLICANT CONTENDS THAT:

Her discharge was unjust due to her undiagnosed medical condition for Post-Traumatic Stress Disorder (PTSD) that contributed to her inability to perform her duties properly.  

The discharge was in error because no one reviewed her records or asked if she was a victim of Military Sexual Trauma (MST); her 2013 hysterectomy was not considered for medical disability or separation; and her separation code is wrong.  

Finally, her discharge was unjust because her service in the Gulf War, humanitarian, mortuary affairs, honor guard, and during the Oklahoma City bombing were not considered.  Military policies have changed concerning PTSD, MST, and infertility since 1999; therefore, her record and medical conditions should be considered under the new guidelines.  

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

STATEMENT OF FACTS:

The applicant initially entered the Regular Air Force on 21 Mar 89.  

On 3 Dec 98, the applicant’s rater notified the applicant of a referral AF Form 910, Enlisted Performance Report (EPR), for the rating period of 3 Dec 97 to 2 Dec 98, stating, “Failure to deploy presented a severe breach of conduct and adversely affected member’s ability to lead.” 

On 17 Dec 98, the applicant responded to the referral EPR noting her failure to deploy incident was being investigated and requested that until the failure to deploy had been legally affirmed, that her rating be based on her work performance excluding the incident.

On 15 Apr 99, according to Special Court-Martial Order No. 8, the applicant was found guilty of willfully disobeying an order by her superior commissioned officer and derelict in the performance of her duties.  Her sentence was reduction to the grade of E-3, forfeiture of $849.00 pay per month for 3 months, and hard labor without confinement for 3 months.  

On 12 Oct 99, the applicant was furnished an Under Other Than Honorable Conditions (UOTHC) discharge, and was credited with 10 years, 6 months, and 22 days of active service.

On 5 Nov 14, the Air Force Discharge Review Board (AFDRB) granted the applicant request for an upgrade discharge and on 6 Jan 15, the applicant’s previous DD Form 214 was voided and replaced with an Under Honorable Conditions (General) discharge.  

The remaining relevant facts pertaining to this application are described in the memoranda prepared by the Air Force offices of primary responsibility (OPR), which are included at Exhibits C through H.

AIR FORCE EVALUATION:

The AFBCMR Medical Consultant recommends partially granting the applicant’s request limiting the relief to removing the SPD code (Sexual Perversion) related to her discharge.  However, he further recommends a supplemental review by a psychologist or psychiatrist, in accordance with the 2015 National Defense Authorization Act (NDAA), Section 521.  The Medical Consultant noted poor impulse control may result in inappropriate verbal or non-verbal behavior, as seen in Bipolar Disorder, thought disorders, some personality disorders, as well as with substance abuse.  It is not known if the applicant was of unsound mind at the time of her refusal to deploy.  Noting the applicant’s was likely pre-briefed on the consequences of refusing to follow a direct order, was given an opportunity to comply, then signed a document to indicate her conscious refusal to comply, the Medical Consultant found no clear demonstrable association with an undiagnosed or allegedly misdiagnosed PTSD.  However, despite the serious nature of refusal to follow a direct order, the Medical Consultant noted the AFDRB determined the applicant’s overall service was best characterized by an Under Honorable Conditions (General) discharge and recommends a change the applicant’s SPD code, as no service administrative documentation appears to justify this designation.  With regard to the applicant’s implicit desire for a medical retirement, the Board is reminded that the Military Department, operating under Title 10, United States Code (U.S.C.), only offers compensation medical conditions found unfitting by a Physical Evaluation Board.  None of the applicant’s medical conditions appear to have reached the threshold for referral for a Medical Evaluation Board due to sustained non-worldwide qualification or as a chronic impediment to duty.  On the other hand, the Department of Veterans Affairs (DVA), operating under a different set of laws (Title 38, U.S.C.), is authorized to offer compensation for any medical condition with a nexus with military service, without regard to its proven or demonstrated impact upon a former member’s fitness to serve, narrative reason for discharge, or the length of time since discharge.  Moreover, the DVA is authorized to adjust the disability rating(s) as the level of impairment for a given medical condition may vary [improve or worsen] over the lifetime of the veteran.  

A complete copy of the BCMR Medical Consultant evaluation is at Exhibit C.  

AFPC/DP2STM-SEP recommends denying the applicant’s request for a change to her discharge, indicating there is no evidence of an error or injustice.  Although the complete discharge documentation is absent from the applicant’s record, based on the presumption of regularity, the discharge was consistent with the procedural and substantive requirements of the discharge instruction and was within the discretion of the discharge authority.  Subsequently, the AFDRB determined that an under honorable conditions (general) discharge was more appropriate than an honorable.  AFI 36-3208 states that a general discharge service characterization is warranted when “the airman’s service has been honest and faithful but significant negative aspects of the airman’s conduct or performance of duty outweigh the positive aspects of the airman’s military record.”  The applicant disobeyed a lawful, direct order from a commissioned officer and willfully failed to prepare for deployment which constituted dereliction of duty.  These actions were considered prejudicial to the good order and discipline expected of all Air Force personnel and adversely affected morale within the military unit.  Therefore, it is AFPC/DP2STM-SEP’s conclusion that the service characterization granted by the AFDRB was sufficient.

However, with regard to the applicant’s request to change her SPD code, AFPC/DP2STM concluded the SPD code “GKL” (Misconduct-Sexual Perversion) currently listed on the DD Form 214 is incorrect and determined that SPD code “GKQ” (Misconduct-Serious Offense) is more applicable.  Once the BCMR has concluded its review of the applicant’s entire case, their office will have the DD Form 214 corrected accordingly to reflect SPD code “GKQ” (Misconduct-Serious Offense). 

A complete copy of the AFPC/DP2STM-SEP evaluation is at Exhibit D.

AFPC/DP2LT recommends denying the applicant’s request to change her date of entry, indicating there is no evidence of an error or injustice since she served continuously from 21 Mar 89 through 3 Oct 99.  However, with regard to her DD Form 214 in item 12e, Total Prior Inactive Service, the applicant’s Air Force Reserve Delayed Entry/Enlistment Program (DEP) period of service starting 13 Feb 89 for a period of 1 month and 8 days is not annotated and has been administratively corrected.  

A complete copy of the AFPC/DP2LT evaluation is at Exhibit E.

AFLOA/JAJM recommends denying the applicant’s request for an upgrade in rank, indicating there is no evidence of an error or injustice.  .  While the applicant raises a number of issues which may provide context or explanation for her conduct which led to the court-martial and subsequent discharge proceedings, she does not make any allegations of any specific or general errors in the court-martial process.  It appears from the applicant’s submission the underlying reasons that she states led to her misconduct (such as medical issues, sexual harassment by co-workers, personal conflicts at home, etc.) were known to her at the time of her court-martial and would have been pertinent, available evidence to raise at trial.  It was with a full picture of the applicant’s duty history, the aggravating circumstances of the crime, and any extenuation/mitigation evidence provided by the applicant that the court-martial fashioned an appropriate sentence.  In accordance with 10 U.S.C., section 1552(f), the Board has no authority to overturn the court-martial conviction, but may, on the basis of clemency, adjust the sentence.  AFLOA/JAJM sees no basis in law to suggest the applicant’s court-martial conviction, or the resulting sentence resulting in her reduction in grade, is an injustice warranting correction by this Board.  In addition, the application is untimely.  

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

The AFBCMR Psychiatric Advisor fully agrees with the Medical Consultant’s conclusions and recommends the applicant’s SPD code be changed to something other than GKL, as there is no evidence that this existed.  The AFBCMR Consultant, further explains the underlying motivations for the actions of the applicant in her refusal to deploy.  The refusal was a very serious offense and the outcome of discharge was justified.  Clearly, the stress of having a supervisor, who was inappropriate, made her life difficult.  What was an even stronger factor was her marriage, her child, and the plan to have another within a short time period.  The pregnancy issue was the crucial factor and a very expensive procedure to induce her ovaries to ovulate.  Consequently, this was a significant motivation to stay in the military to finance this project.  On the other hand, she needed to remain in a location where there are specialists to do the procedures.  The applicant already gone through one series of injections that did not work. To complicate her decision further, she had a one year old infant at home.  Previously, her priority was the military and her ratings, which were all 5’s until she started working for her current supervisor, who was making inappropriate advances toward her.  Now, she was married and her family was her focus.  Had she not been given the orders to deploy there would have been no conflict.  Clearly, her priorities in life changed and consequently, she chose to refuse to deploy.  Although the military is more sensitive at this time to the needs of their female members, the rules remain the same.  She had to follow orders or take the consequences.  This was the conflict the applicant found herself in, she signed the refusal to deploy, and was prosecuted for her action.  

A complete copy of the AFBCMR Psychiatric Advisor evaluation is at Exhibit G.

AFPC/DP3SP has no equity in the case and defer to the AFLOA/JAJM recommendation.  

A complete copy of the AFPC/DP3SP evaluation is at Exhibit H.

APPLICANT'S REVIEW OF AIR FORCE EVALUATION:

The applicant refutes many of the points made by the OPRs and states she has been under the care of a Department of Veterans Affairs health provider for treatment of Post-Traumatic Stress Disorder and Military Sexual Trauma.  She argues several of the facts cited by the OPRs are in error and provides applicable evidence.  In support of her rebuttal, she provides a more detailed account of her medical conditions, family situation, alcohol abuse and treatment, and her sexual assault, and how these issues affected her during her service leading up to her court-martial and how they still persist today.  

A complete copy of the applicant’s rebuttal, with attachments, is at Exhibit J.

THE BOARD CONCLUDES THAT:

1.  The applicant has exhausted all remedies provided by existing law or regulations.

2.  The application was not timely filed.  The Board notes two of the Air Force offices of primary responsibility (OPRs) state the application is untimely; however, we reviewed the applicant’s discharge request as timely based on the fact the applicant submitted her request within three years of her Air Force Discharge Review Board decision.  

3.  Insufficient relevant evidence has been presented to demonstrate the existence of an error or injustice beyond the administrative relief provided regarding her discharge.  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 OPRs as well as the Air Force Discharge Review Board decision regarding her character of service 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.  With regard to her request to change her discharge to a medical retirement, reinstatement of her rank to Staff Sergeant, and her date of entry changed, the Board notes the applicant did not file this portion of her application within three years after the alleged error or injustice was discovered, or should have been discovered, as required by Title 10, United States Code, Section 1552 and Air Force Instruction 36-2603.  Therefore, because we do not find it would be in the interest of justice to recommend granting relief, and the applicant has offered no plausible reason for the delay in filing the application, we cannot conclude it would be in the interest of justice to excuse the failure to timely file the application.  Accordingly, we find this portion of the application untimely.

THE BOARD DETERMINES THAT:

The applicant be notified that beyond the relief provided administratively, the evidence presented regarding her discharge 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. 

Furthermore, with regard to the applicant’s remaining requests, the application was not timely filed and it would not be in the interest of justice to waive the untimeliness.  It is the decision of the Board, therefore, to reject the application as untimely.

The following members of the Board considered AFBCMR Docket Number BC-2015-02862 in Executive Session on 18 Oct 16 and on 31 Oct 16 under the provisions of AFI 36-2603:

	, Panel Chair
	, Member
	, Member

The following documentary evidence pertaining to AFBCMR Docket Number BC-2015-02862 was considered:

	Exhibit A.  DD Form 149, dated 22 Jun 15, w/atchs.
	Exhibit B.  Applicant's Master Personnel Records.
	Exhibit C.  Memorandum, Medical Consultant, dated 23 Nov 15.
	Exhibit D.  Memorandum, AFPC/DP2STM-SEP, dated 26 Jul 16.
	Exhibit E.  Memorandum, AFPC/DP2LT, dated 1 Aug 16, w/atch.
	Exhibit F.  Memorandum, AFLOA/JAJM, dated 17 Aug 16.
	Exhibit G.  Memorandum, Psychiatric Advisor, dated 19 Aug 16.
	Exhibit H.  Memorandum, AFPC/DP3SP, dated 22 Aug 16.
Exhibit I.  Letter, AFBCMR, dated 6 Sep 16.
Exhibit J.  Applicant Rebuttal, dated 6 Oct 16, w/atchs.

Pursuant to paragraph 1 of AFI 36-2603 (Title 32 Code of Federal Regulations, Part 865.1), it is certified that a quorum was present at the Board's review and deliberations, and that the foregoing is a true and complete record of the Board's proceedings in the above entitled matter.