RECORD OF PROCEEDINGS
AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS

IN THE MATTER OF: 				DOCKET NUMBER: BC-2016-00630

							COUNSEL:  NONE

							HEARING DESIRED:  NO 

APPLICANT REQUESTS THAT:

His under other than honorable conditions (UOTHC) discharge be upgraded to general.

APPLICANT CONTENDS THAT:

An upgrade to his discharge will allow him to receive treatment from the Department of Veterans Affairs to address the physical and mental abuse he suffered during his military service.

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

STATEMENT OF FACTS:

On 9 February 1973, the applicant entered the Regular Air Force.

According to Standard Form (SF) 600, Chronological Record of Medical Care, dated 13 June 1974, the applicant was diagnosed with Explosive Personality Disorder, Chronic Severe. The Chief, Psychiatric Service recommended he be permanently disqualified from “HRP” duties and administratively discharged as soon as possible.  The psychiatrist found no evidence of psychosis or neurosis, and an electroencephalogram (EEG) ruled out any other abnormalities.

According to SF Form 600 dated 19 June 1974, the applicant was referred to the mental health clinic for nervousness and trouble sleeping and received a trial of Valium.  He was subsequently admitted to the hospital and given a diagnosis of Acute Paranoia/Drug Abuse.

According to AF Form 565-5, Clinical Record Cover Sheet, dated 21 June 1974, the Psychiatry Clinic diagnosed the applicant with Acute Organic Brain Syndrome, Drug Induced (Hashish), Explosive Personality Disorder, Chronic Severe, and Improper use of Medication (Valium).

According to Special Court-Martial Order No. 9 dated 8 August 1974, the applicant was charged with numerous offenses to include: one charge and two specifications of wrongful possession of marijuana in violation of Article 92, Uniform Code of Military Justice (UCMJ); one charge and one specification of assaulting an individual with a bayonet, in violation of Article 128, UCMJ; one charge and one specification of communicating a threat to kill someone, in violation of Article 134, UCMJ; and one charge and one specification of destruction of property, in violation of Article 108, UCMJ.  Contrary to his pleas, the applicant was found guilty at a special court-martial of all charges and specifications except destruction of property and one of the marijuana possession charges.  On 11 July 1974, the applicant was sentenced to a bad conduct discharge, forfeiture of $175 per month for two months, and confinement for two months.  The convening authority approved the sentence on 8 August 1974, but removed the bad conduct discharge and instead imposed an additional four months of confinement for a total of six months.

On 22 November 1974, the applicant was offered nonjudicial punishment (NJP) pursuant to Article 15, UCMJ, for one charge and one specification of possessing marijuana, in violation of Article 92, UCMJ.  In his defense, the applicant elected to make an oral presentation to his commander.   After consideration of all matters, the commander upheld the NJP action and determined the appropriate punishment to be forfeiture of $172 per month for two months.  The applicant did not appeal this action.

According to AF Form 2098, Duty Status Change, dated 14 February 1975, the applicant’s duty status changed from present for duty to absent without leave (AWOL) effective 13 February 1975.

According to AF Form 2098 dated 24 February 1975, the applicant’s duty status was changed from AWOL to civil confinement, effective 21 February 1975, for the suspected sale of cocaine.

On 27 February 1975, the applicant was discharged with a UOTHC characterization.  He was credited with 2 years and 19 days of active service, excluding 182 days of time lost.

On 6 April 2016, a request for post-service information was forwarded to the applicant for review and comment within 30 days (Exhibit C); as of this date, this office has received no response.

The remaining relevant facts pertaining to this application are contained in the memoranda prepared by the Air Force offices of primary responsibility (OPR), which are attached at Exhibit D and E.

AIR FORCE EVALUATION:

AFLOA/JAJM recommends denial, indicating there is no evidence of error or injustice.  The applicant was tried and convicted by a special court-martial for several charges, including possession of marijuana.  Three months later, he was again caught possessing marijuana and received NJP action.  Although the records are unclear, it appears that at some point between the court-martial action and receiving NJP, the applicant was administratively reduced in grade from airman (E-2) to airman basic (E-1).  Furthermore, in February 1975 the applicant was suspected of being AWOL from his duty station and appears to have been in civil confinement for the suspected sale of cocaine.

Due to the passage of time, no additional military justice-related records beyond those already contained in applicant’s personnel files could be found that would explain either the applicant’s discharge or reason for service characterization; however, it is reasonable to presume that applicant’s court-martial conviction, along with his continued pattern of misconduct, were factors the command considered when determining an appropriate characterization of service.  It is also reasonable to presume that the convening authority, by removing the bad conduct discharge from the applicant’s executed sentence at court-martial, gave the applicant a second opportunity to continue serving productively in the military, at which point he continued to engage in misconduct.  The fact the applicant could have been discharged with a bad conduct characterization, which is a more detrimental characterization than a UOTHC, also likely weighed on the command’s decision in recommending a UOTHC characterization.

In accordance with Title 10 United States Code, Section 1552(f), Correction of military records: claims incident thereto, the Board has no authority to overturn the court-martial conviction but may, on the basis of clemency, adjust the sentence.  The applicant has not submitted any evidence which tends to cast doubt on the outcome of his trial, and has not detailed any specific reason or basis why he believes his allegations warrant relief.  Therefore, there is no basis in law to suggest that applicant’s court-martial sentence is an injustice warranting correction by this Board.  Furthermore, as the applicant’s discharge action was administrative and not punitive, clemency in the form of an adjustment to applicant’s sentence would not provide the relief the applicant requests.

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

The BCMR Psychiatric Advisor recommends denial.  After a thorough review of the information available there is insufficient evidence to recommend approval.  Making a reasonable diagnosis is not possible considering the applicant’s substance abuse.  It is clear the applicant experimented with drugs.  It is also clear the applicant experienced some anxiety; however, it cannot be determined if his anxiety was due to his drug use or if he had emotional problems. The applicant should contact the Department of Veterans Affairs to determine if they would consider seeing him or if they could refer him to a non-military treatment facility.

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

APPLICANT'S REVIEW OF AIR FORCE EVALUATION:

On 28 November 2016, copies of the Air Force evaluations were forwarded to the applicant for review and comment within 30 days.  As of this date, no response has been received by this office (Exhibit F).

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 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 and adopt their rationale as the basis for our conclusion the applicant has not been the victim of an error of injustice.  In the interest of justice, we considered upgrading the discharge based on clemency; however, in view of the applicant’s overall record of service and in the absence of any evidence related to the applicant’s post-service activities, there is no way for us to determine if the applicant’s accomplishments since leaving the service are sufficiently meritorious to overcome the misconduct for which he was discharged.  Therefore, in the absence of evidence to the contrary, we find no basis to recommend granting the relief sought.

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-2016-00630 in Executive Session on 15 February 2018, under the provisions of AFI 36-2603:

Panel Chair
Member
Member

The following documentary evidence was considered:

Exhibit A.  DD Form 149, dated 4 February 2016, w/atch.
Exhibit B.  Relevant Excerpts from Applicant's Master Personnel Records.
Exhibit C.  Letter, AFBCMR, dated 6 August 2016, w/atch.
Exhibit D.  Memorandum, AFLOA/JAJM, dated 31 August 2016. 
Exhibit E.  Memorandum, BCMR Psychiatric Advisor, dated 
  17 November 2017.
Exhibit F.  Letter, AFBCMR, dated 28 November 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.