RECORD OF PROCEEDINGS
AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS

IN THE MATTER OF:				DOCKET NUMBER:  BC-2004-02150
INDEX CODE:  110.02
	XXXXXXXXXXXXXXX				COUNSEL: 

	XXXXXXXXXX					HEARING DESIRED:  Yes

MANDATORY CASE COMPLETION DATE:  13 January 2006

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APPLICANT REQUESTS THAT: 

His general discharge be upgraded to honorable.

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APPLICANT CONTENDS THAT:

His misconduct was caused by Post Traumatic Distress arising from his military service which only became apparent in 2002.  His military counsel pressured him into accepting a general discharge.  

In support of his application, he provides a personal statement, letters of commendation, medical reports, Social Security Administration decision, and disability award and rehabilitation plan from the Department of Veterans Affairs (DVA).  The applicant’s complete submission, with attachments, is at Exhibit A.

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STATEMENT OF FACTS:

On 17 June 1969, the applicant enlisted in the Regular Air Force at the age of 20 in the grade of airman basic (E-1) for a period of four years.  He was trained as a Veterinary Specialist.  The applicant was progressively promoted to the grade of airman first class (E-3) effective and with a date of rank of 1 January 1970.  He received one performance report from the period 17 June 1969 through 1 July 1970, with an overall rating of 7. 

On 9 February 1970, the applicant was picked up by local authorities for indecent exposure after exposing himself to two women at a local laundromat.  The applicant was released to military authorities for disposition; however, no charges were filed by the complainants.  On 12 August 1970, the applicant was arrested for lewd and lascivious acts in front of a minor.  On the same day, the applicant was recommended for removal from On-the-Job training due to failure of the course examination of his Career Development Course twice.  

As a result of a psychiatric evaluation, the applicant was diagnosed with a character and behavior disorder of sexual deviation manifested by exhibitionism.  On 10 September 1970, his commander notified the applicant of his intent to recommend the applicant for a general discharge under AFM 39-12, Chapter 2, Section A, without probation or rehabilitation.  On 2 October 1970, after acknowledging receipt of his commander’s intent and being interviewed by an appointed evaluation officer, the applicant waived his rights to consult with legal counsel, submit statements in his own behalf, and to request consideration for the probation and rehabilitation program.  On 8 October 1970, the staff judge advocate found the file legally sufficient and recommended a general discharge under AFM 39-12, Chapter 2, Section A, for a character and behavior disorder.  On 13 October 1970, the discharge authority approved the applicant’s discharge as recommended without probation.  

The applicant was discharged effective 20 October 1970 with a general (under honorable conditions) characterization of service.  He served one year, four months and four days on active duty.  

On 26 July 2000, the Air Force Board for Correction of Military Records (AFBCMR) considered and disapproved the applicant’s request to change his discharge to a disability separation (Exhibit F).  

On 21 June 2001, the Social Security Administration granted the applicant disability benefits for mental illness.  On 30 April 2003, the DVA granted the applicant service connection for Obsessive Compulsive Disorder rated 100% effective 23 June 1999.

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AIR FORCE EVALUATION:

The BCMR Medical Consultant recommends denial.  The BCMR Medical Consultant is of the opinion that the applicant’s condition did not represent a condition that warranted evaluation through the Air Force disability evaluation system.  In addition, his discharge was consistent with his diagnosis and the characterization of his service was within the discretionary authority of his commander.  The BCMR Medical consultant’s evaluation is at Exhibit C.

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APPLICANT'S REVIEW OF AIR FORCE EVALUATION:

The applicant’s counsel submits that the BCMR Medical Consultant’s opinion is nothing more than a rubber stamp of the previous military findings of some 35 years ago and should not be persuasive with respect to his client’s application.  It appears the BCMR Medical Consultant disregarded the fact that the Social Security’s decision of 21 June 2001 declared the applicant was totally disabled and the disability award from the DVA, dated 30 April 2003.  A copy of the counsel’s rebuttal, with attachment, is at Exhibit D.

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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 probable error or injustice.  The applicant did not provide persuasive evidence showing the information in the discharge case was erroneous, his substantial rights were violated, or that his commanders abused their discretionary authority.  While we note the applicant’s claim that his conduct was due to Post-Traumatic Stress disorder stemming from a traumatic event while serving on active duty, we note the case file indicates he suffered from hypersexuality and a tendency to expose himself since age 13.  Notwithstanding this fact, there is no evidence in the available record that would lead us to believe the diagnosis of his condition at that time was erroneous or contrary to accepted medical principles, or, that his condition met the criteria for physical disability processing.  In the absence of such evidence, we agree with the assessment of the contentions of applicant and counsel by the BCMR Medical Consultant and adopt his rationale as the basis for the conclusion that the applicant has not been the victim of an error or injustice.  Therefore, the applicant’s request is not favorably considered.

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.

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THE BOARD DETERMINES THAT:

The applicant be notified that the evidence presented did not demonstrate the existence of material error or injustice; that the application was denied without a personal appearance; and that the application will only be reconsidered upon the submission of newly discovered relevant evidence not considered with this application.

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The following members of the Board considered this application in Executive Session on 4 October 2005, under the provisions of AFI 36-2603:

The following documentary evidence was considered in connection with AFBCMR Docket No. BC-2004-02150:

    Exhibit A.  DD Form 149, dated 7 Jul 04, w/atchs.
    Exhibit B.  Applicant's Master Personnel Records.
    Exhibit C.  Letter, AFPC/DPPRS, dated 29 May 03.
    Exhibit D.  Letter, SAF/MRBR, dated 21 Jul 05.
    Exhibit E.  Counsel’s Rebuttal, w/atch, dated 19 Aug 05.
    Exhibit F.  Record of Proceedings, dated 28 Jul 00.