RECORD OF PROCEEDINGS
AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS

IN THE MATTER OF: 			DOCKET NUMBER: BC-2015-05124

						COUNSEL:  NONE

						HEARING DESIRED:  NO 

APPLICANT REQUESTS THAT:

His DD Form 214, Certificate of Release or Discharge From Active Duty, effective 5 November 2014, be corrected to reflect the following:

a.  Block 7b:  Home or Record at Time of Entry, be changed from Las Cruces, New Mexico (NM) to El Paso, Texas (TX) (administratively corrected).  

b.  Block 19a:  Mailing Address After Separation, be changed from 703 Hellenic Drive Las Cruces, NM 88011 to 6304 Wildwood Court, El Paso, TX 79912.  

c.  Block 20:  Member Requests Copy 6 Be Sent To, TX office of Veterans Affairs instead of NM office of Veterans Affairs.  

d.  Block 28:  Narrative Reason For Separation, of “Misconduct (Serious Offense)” be changed to add the medical component to the discharge.  

APPLICANT CONTENDS THAT:

He lives in El Paso, Texas and not New Mexico.  He was told that once the civil legal charges were dismissed, he could request that the “serious offense” label be removed from his records.  

He was further told that he would receive consideration for a dual action discharge, consisting of an administration discharge in conjunction with a medical discharge.  However, there is no mention of the medical discharge.  He currently has a 50 percent disability rating for his medical condition and feel it should be reflected on his DD Form 214.  

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

STATEMENT OF FACTS:

On 16 April 2003, the applicant’s military personnel records indicate he was commissioned in the Air Force Reserve.  

On 9 September 2011, the applicant entered the Regular Air Force.

On 13 May 2012, the applicant slapped his girlfriend, pushed her into a wall and confined her in a bathroom.  This incident was not initially reported to the police.  

On 17 May 2012, the applicant committed the same type of acts on his girlfriend; however, he also fought with a responding officer, tried to spray the officer with pepper spray and grab the officer’s weapon to commit suicide or have the officer shoot him.  He was arrested for his actions.  

On 2 October 2012, the applicant received a Letter of Reprimand (LOR) for the aforementioned actions.  

On 14 November 2012, the applicant’s AF Form 707, Officer Performance Report (Lt thru Col), rendered for the period 9 September 2011 thru 5 November 2012, was referred upon him for a rating of “Does Not Meet” standards in section III, Performance Factors, and a comment related to his involvement in civilian legal proceedings regarding abuse and felony charges.  The applicant acknowledged receipt of the action and waived his right to submit matters.  

On 8 January 2013, a board of inquiry (BOI) was scheduled and subsequently cancelled because there were not enough 0-6 officers available to constitute the board; thereby rescheduling for 8 October 2013.  

On 24 February 2013, the applicant’s squadron commander recommended to the wing commander that consideration be taken to initiate discharge action against the applicant for numerous instances of misconduct.  

On 6 March 2013, the applicant’s wing commander recommended to the major command that discharge action be initiated against the applicant and he be discharged with an under other than honorable conditions (UOTCH) service characterization.  Specifically, for physically assaulting and confining his girlfriend against her will.  In addition, for evading and resisting apprehension by a civilian police officer, and physically assaulting the same civilian police officer.  

On 15 March 2013, the AF/JA reviewed the applicant’s case proposing administrative discharge action and found it legally sufficient.  

On 29 March 2013, the applicant was notified his commander was initiating discharge against him and he was asked to show cause as to why he should be retained on active duty.  
On 8 April 2013, the applicant was notified of his recommendation for discharge for misconduct.  He acknowledged his right to present his case before an administrative discharge board, be represented by military counsel and to submit statements in his own behalf.  He elected not to waive his rights to a hearing or waive his right to military counsel.  

On 8 October 2013, the BOI was cancelled due to sequestration.  

On 7 November 2013, the applicant was issued a Letter of Reprimand (LOR) for making a false official statement on 22 October 2013 and for his failure to notify his supervisor of his hour delay to work on 6 November 2013.  

On 12 November 2013, the applicant submitted a statement on his own behalf.  The commander reviewed the response and upheld his decision.  

On 20 November 2013, an AF Form 1058, Unfavorable Information File Action, was initiated to include the LOR and the applicant was placed on the control roster for his failure to go, dereliction of duty; disobeying a lawful order and false official statement.  

On 7 January 2014, the applicant submitted a conditional waiver of his right to a BOI and requested separation with a general discharge.  

On 8 January 2014, the BOI was rescheduled.  

On 31 January 2014, the applicant’s commander and wing commander recommended the conditional waiver be accepted and that he be discharged with a general (under honorable conditions) characterization.  

On 1 July 2014, the Staff Judge Advocate (SJA), reviewed the conditional waiver statement concerning the applicant and found it legally sufficient to support the discharge waiver for serious or recurring misconduct punishable by military or civilian authorities.  

According to the HQ ACC/SJA, the seven-month delay between the waiver submission and its arrival at ACC/JA was apparently caused by a lack of coordination and oversight between the numbered air force (NAF) and the Wing.  

On 8 July 2014, the applicant’s squadron commander, group commander, and major command commander concurred with the applicant’s conditional waiver and supported him receiving a general (under honorable conditions) characterization of service.  

On 23 July 2014, the WG/JA indicated the applicant’s squadron commander based his recommendation on the applicant’s positive behavioral progression.  Following the events in 2012 and continuing through his notification of a BOI, the applicant experienced a severe decline in mental health.  He entered a treatment program that required extensive in-patient treatment.  

On 28 July 2014, the HQ ACC/SJA reviewed the applicant’s offer to waive his right to a BOI in exchange for receiving no less than a general discharge and recommended acceptance of his offer.  

On 30 July 2014, the SJA indicated that although an UOTHC discharge was initially appropriate, the underlying mental health catalyst, the near completion of the diversionary program, and turnaround in performance/conduct now make a general discharge appropriate.  

On 4 August 2014, the applicant’s vice commander recommended the conditional waiver be accepted and that he be separated with a general discharge.  

On 5 November 2014, the applicant was furnished a general (under honorable conditions) discharge, with a narrative reason for separation of “Misconduct (Serious Offense),” and credited with 3 years, 1 day, and 27 days of active service.  

On 5 December 2014, according to documentation submitted by the applicant, criminal proceedings against him were dismissed due to the completion of a Pre-Prosecution Diversion Program.  

On 29 September 2015, according to a Department of Veterans Affairs letter submitted by the applicant, he was assigned an overall 50 percent disability rating for his chronic major depressive disorder.  

On 25 May 2016, HQ AFPC/DP2LT notified the applicant that after reviewing his military personnel records it was determined his AF IMT 766, Extended Active Duty Order, erroneously reflected his HOR as Las Cruces, NM when he was accessed to active duty in September 2011.  Based upon his AF Form 24, Application for Appointment as Reserve of the Air Force or USAF without Component, it is confirmed that his HOR is El Paso, TX.  

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 Exhibit C, D, E, and F.  

AIR FORCE EVALUATION:

AFPC/DP2STM-SEP recommends denial in regards to changing the applicant’s narrative reason for separation.  Based on a review of his master personnel records, the discharge itself was consistent with the procedural and substantive requirements of the discharge instruction and was within the discretion of the discharge authority.  There was no evidence found of an error or injustice in the discharge processing.  
There is no record of processing a “dual action” on the applicant at the time of his discharge from the Air Force.  In terms of the circumstances surrounding the administrative actions of the applicant’s discharge, there was clear evidence that the reason for discharge existed at the time.  Therefore, the narrative reason for separation, separation program designator (SPD) code, and character of service are correct as indicated on the applicant’s DD Form 214.  The applicant’s commander originally recommended an UOTHC service characterization; however, based on the applicant’s improvement in duty performance, the commander determined that a general discharge characterization was more appropriate.  Even with the improvement, the incidents of misconduct coupled with other instances cited in the applicant’s record, still warranted the determination of a general discharge service characterization.  

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

AFPC/DP2STM-214 recommends denial in regards to changing the applicant’s mailing address after separation and the state’s Veterans’ Affairs office on his DD Form 214.  The applicant’s requested corrections are administrative in nature without effect. The action to make these corrections could have a greater negative impact on the applicant.  

In accordance with Air Force Instruction (AFI) 36-3202, Separation Documents, the sole purpose of the mailing address after separation is for the initial physical delivery of the DD Form 214.  With the applicant in receipt of his DD Form 214, the information is of no use, data is administrative, and not used for veteran benefits/entitlements.  

The state recorded on the DD Form 214 for delivery to the VA is of no value for benefits/entitlements as the DD Form 214 data is made available digitally to all states.  Currently, DD Form 214 data is transmitted to a central VA repository where each respective state VA office pulls information when needed.  The state represented on the applicant’s DD Form 214 would have been mailed a copy under a former manual document distribution process which is no longer in use.  Therefore, the applicant’s concerns are administrative and do not affect benefits or entitlements.  Based on the above, to correct the DD Form 214 without significance, could have a negative impact on the applicant and an inherent risk in matching a paper amendment to his DD Form 214 data.  

A complete copy of the AFPC/DP2STM-214 evaluation is at Exhibit D.

AFPC/DP2NP recommends denial in regards to changing the applicant’s records.  In accordance with Department of Defense Instruction (DODI) 1332.38, Physical Disability Evaluation, paragraph E3.P2.4.3, evidence presented finds the applicant was ineligible for referral to the disability evaluation system (DES).  Specifically, a member is ineligible for referral to the DES when the member is pending separation under provisions that authorize a characterization of service of Under Other Than Honorable (UOTH).  It further states in paragraph E3.P2.4.4, that regulations should normally provide for referral to the DES for members designated in subsection E3.P2.4.3, when the medical impairment or extenuating circumstances may be the cause of the conduct.  

An Initial Review in Lieu of (RILO) Medical Evaluation Board pertaining to the applicant’s medical condition was presented to Medical Retention Standards in December 2012.  Based upon the review of all documents presented at that time it was determined the applicant was ineligible for referral to the DES, as he was pending administrative discharge under provisions that authorized a characterization of service of UOTHC characterization.  The Mental Health Narrative Summary that was received by DP2NP in December 2012 made it very clear that the applicant’s potentially unfitting diagnosis of depression was not the cause of his misconduct but rather that his misconduct was related to his unsuiting personality disorder diagnosis.  Therefore, it was determined that paragraph E3.P2.4.4 did not pertain in this case, as the member’s unfitting condition did not cause his misconduct but rather his unsuiting condition.  As such, the applicant was declared ineligible for referral into the DES.

A complete copy of the AFPC/DP2NP evaluation is at Exhibit E.

AFPC/JA recommends denial in regards to removing or changing the applicant’s narrative reason for discharge on his DD Form 214.  The State of New Mexico retained jurisdiction and filed criminal charges against the applicant for offenses in which occurred off base in New Mexico.  It appears from the information submitted by the applicant, he entered into a plea agreement with the State.  He did not submit the agreement, but rather, a “nolle-prosequi” (unwilling to pursue or do not prosecute) motion filed by the State on 16 December 2014.  In its motion, the State cites the fact that the applicant successfully completed the “Pre-Prosecution Diversion Program”.

The applicant was not acquitted of the charges.  He could theoretically be re-charged for the offenses at any time (though such is highly unlikely).  Since the applicant was not acquitted of the charges that formed the basis of his discharge for “serious or recurring misconduct punishable by military or civilian authorities”, there is no basis to remove or change his narrative reason for discharge on his DD Form 214.  

A complete copy of the AFPC/JA evaluation is at Exhibit F.

APPLICANT'S REVIEW OF AIR FORCE EVALUATION:

Copies of the Air Force evaluations were forwarded to the applicant on 13 October 2016 for review and comment within 30 days (Exhibit G).  As of this date, no response has been received by this office.

ADDITIONAL AIR FORCE EVALUATION:

The Psychiatric Advisor recommends denial of changing the applicant’s record to add a medical component to his discharge.  The applicant came into the service under conditions of a Health Professional Scholarship Program (HPSP).  When there is an administrative discharge where the command was considering an “Other than Honorable” character of discharge a medical board cannot be considered even if the final decision does not go that far.  The MEB made their decision based on the Air Force Instruction 41-210, Tricare Operations and Patient Administration Functions, which basically states that when an administrative discharge is being considered if it could result in an other than honorable characterization then the member cannot in the future be considered for a medical discharge.  

In considering a Medical Discharge, there has to be a causative factor that makes the member unfit for further service.  The military Disability Evaluation System (DES), was established to maintain a fit and vital fighting force, can by law, under Title 10, United States Code (U.S.C.), only offer compensation for those service incurred diseases or injuries which specifically rendered a member unfit for continued active service and were the cause for career termination; and then only for the degree of impairment present at the “snapshot” time of separation and not based on post-service progression of disease or injury.  To the contrary, the Department of Veterans Affairs (DVA), operating under a different set of law, Title 38, U.S.C., is empowered to offer compensation for any medical condition with an established nexus with military service, without regard to its impact upon a member’s fitness to serve, the narrative reason for release from service, or the length time transpired since the date of discharge.  The DVA may also conduct periodic reevaluations for the purpose of adjusting the disability rating awards as the level of impairment from a given medical condition may vary [improve or worsen] over the lifetime of the veteran. 

In the case of this applicant his second episode of depression increased the potential for reoccurrence.  Consequently, the applicant was disqualified for deployment therefore the presumption of fitness was overcome even though his depression resolved after a brief treatment period.  However, by the time of his discharge, it was clearly evident, that the major factor that placed him at risk for discharge was his Personality disorder, not his Depression.  It was his personality disorder that caused the aggression, he displayed towards his girlfriend/mother of his children not his depression.  Therefore, it was his personality disorder that made him unsuitable for further military service.   Personality disorders are not considered medical disorders, but rather disorders inherent in the individual that interfere with the performance of duty.  Consequently, making the member unsuited to military service.  Since these conditions are not considered medical disabilities by the military, the members are not eligible for compensation and are discharged administratively.  This means that the applicant was not eligible for disability compensation by the military, but could still be eligible for disability by the DVA.  

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

APPLICANT'S REVIEW OF ADDITIONAL AIR FORCE EVALUATION:

A copy of the Psychiatric Advisory was forwarded to the applicant on 6 September 2017 for review and comment within 30 days (Exhibit I).  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 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 (OPR) and the AFBCMR Psychiatric Advisor and adopt their rationale as the basis for our conclusion the applicant has not been the victim of an error of injustice.  Therefore, in view of the above and in the absence of evidence to the contrary, we find no basis to recommend granting any relief beyond that rendered administratively.  

THE BOARD RECOMMENDS 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-2015-05124 in Executive Session on 7 November 2017 under the provisions of AFI 36-2603:

	Panel Chair
	Member
	Member

The following documentary evidence pertaining to AFBCMR Docket Number BC-2015-05124 was considered:

	Exhibit A.  DD Form 149, dated 5 March 2015, w/atchs.
	Exhibit B.  Applicant's Master Personnel Records.
	Exhibit C.  Memorandum, AFPC/DP2STM-SEP, dated 8 March 2016.
	Exhibit D.  Memorandum, AFPC/DP2STM-214, dated 20 September 
                 2016.
	Exhibit E.  Memorandum, AFPC/DP2NP, dated 27 September 2016.
Exhibit F.  Memorandum, AFPC/JA, dated 4 October 2016.
	Exhibit G.  Letter, AFBCMR, dated 13 October 2016.
Exhibit H.  Memorandum, Psychiatric Advisor, dated 24 August  
            2017.  
Exhibit I.  Letter, AFBCMR, dated 6 September 2017.

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.