RECORD OF PROCEEDINGS
AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS

IN THE MATTER OF:	DOCKET NUMBER:  BC-2004-02235
		INDEX CODE: 106.00, 108.01, 126.04
	 	COUNSEL:  

	 	HEARING DESIRED: Yes

MANDATORY CASE COMPLETION DATE:  24 Jan 06

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APPLICANT REQUESTS THAT:

1.  The nonjudicial punishments imposed upon him under the Uniform Code of Military Justice (UCMJ) be expunged from his record.

2.  His 2002 general discharge for misconduct be changed to an honorable discharge for medical disability. 

3.  He be separated in the rank of staff sergeant (SSgt), and afforded any other relief to which he is entitled.

[Note: The applicant also received two referral Enlisted Performance Reports (EPRs) that the Board may wish to consider.]

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APPLICANT CONTENDS THAT:

His mental disorder preceded the misconduct, which involved his viewing adult sexual activity on government computers.  He suffers from a recognized and diagnosed mental illness--a form of paraphilias not otherwise specified under the Diagnostic and Statistical Manual of Mental Disorders, 4th Edition (DSM IV) 302.9.  In the vernacular, it is a sexual addiction that is treated like all other addictions.  His mental health records universally diagnose him as having a sexual disorder associated with gaining access to “explicitly sexual activity.”  His disorder was the direct and proximate cause of his utilization of government computers to view these materials.  Although the command rightfully recognized the problem, it wrongfully viewed the events as misconduct rather than part of a medical problem.  His condition should have been recognized and it clearly rendered him unfit for duty.  Had the Air Force properly treated this as a medical condition and sought his medical separation upon its discovery, he would not be in his current position.  Further, a zero percent rating is available under the general rating formula for mental disorders.

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

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STATEMENT OF FACTS:

The applicant enlisted in the Regular Air Force on 25 Feb 87.  He was sequentially promoted to the grade of SSgt.  With three exceptions, the applicant’s performance reports prior to the period in question reflected the highest overall rating (see Exhibit B).  

During the period in question, the applicant was an instructor, Department of Defense (DOD) Biomedical Equipment Technician Training Course, with the 384th Training Squadron (384 TRS) at Sheppard AFB, TX.

On 7 Dec 00, the applicant self-referred to the Mental Health Clinic (MHC) at Sheppard AFB, presenting addiction to pornography and possible sexual addiction.  According to the evaluation, he first saw pornography at age five because his father had Playboy magazine.  Before joining the military, he was addicted to marijuana and cocaine for two and one-half years.  As an adult, he began looking at pornography on the Internet and masturbating.  He had multiple extra-marital affairs throughout two marriages.  His wife found out about his attraction to porn several years ago.  He and his wife sought church help with regard to marital problems and heavy drinking.  This helped keep him accountable until Jun 00, when he resumed viewing pornography. He was currently undergoing investigation for viewing porn on a government computer.  Diagnosis was deferred, but individual sessions were recommended.  

On 11 Dec 00, the applicant was notified of his commander's intent to impose nonjudicial punishment upon him for violating a lawful regulation by wrongfully viewing pornographic images on his government computer on or about 30 Nov 00.  On 15 Dec 00, after consulting with counsel, the applicant waived his right to a trial by court-martial, requested a personal appearance, and he and his area defense counsel (ADC) submitted written presentations.  The ADC advised that the applicant had an addiction to pornography, similar to an addiction to alcohol.  The applicant admitted to an addictive personality, and provided character references.  On 21 Dec 00, he was found guilty by his commander who imposed punishment in the form of reduction to senior airman (SRA), suspended until 20 Jun 01, and a reprimand.  Applicant did not appeal the punishment.  The Article 15 was filed in his Unfavorable Information File (UIF).

On 8 Jan 01, the applicant was notified he was nonrecommended for promotion to the grade of technical sergeant (TSgt).

The applicant continued for the most part with his MHC sessions.  The Axis I diagnosis was relational problems, not otherwise specified (NOS).  However, on 20 Mar 01, he reported some “backsliding” and several missed weeks of counseling with his pastor/church.  Recommendation was to continue meetings at church, individual work on a 12-step program, and bi-weekly sessions at the MHC.  

On 18 Apr 01, the 384 TRS First Sergeant indicated in a sworn statement that, on 12 Apr 01, he was made aware of a government computer being used on numerous occasions to access pornographic Internet sites.  Three individuals, including the applicant, had access to the computer. The First Sergeant advised the applicant of his rights, and he at first denied accessing porn sites.  However, upon being re-interviewed, he admitted to misusing the computer from 2-6 Apr 01. 

MHC sessions, dated 27 Apr and 4 May 01, noted the applicant’s embarrassment for again being caught using his computer to access porn.  Counseling was to continue; however, the applicant declined possible medication for the time being.  The applicant reported he asked his commander to help him avoid a similar incident by implementing some external controls.  The provider advised the applicant would need to take personal responsibility for his behavior.  

On 30 Apr 01, the commander vacated the suspended reduction to SRA after the applicant violated a lawful general instruction on divers occasions between, on or about 2-6 Apr 01, by wrongfully displaying pornographic images on his government computer.  The applicant did not make a presentation or written submission, and he was reduced to SRA with a date of rank (DOR) of 21 Dec 00.

On 9 May 01, the commander imposed nonjudicial punishment on the applicant in the form of reduction to airman first class (A1C), suspended until 8 Nov 01, and 30 days of extra duty, for violating a general instruction on divers occasions between, on or about 2-6 Apr 01, by wrongfully displaying pornographic images on his government computer.  The applicant made a personal appearance and submitted a written presentation, apologizing and indicating he had a deep-seated problem with pornography and sexual addiction.  He contended only one of the external controls he had requested to compensate for his lack of internal controls had been implemented.  However, he did not appeal the punishment.  

The applicant continued his psychotherapy and counseling sessions, but had not yet begun “working the [12] steps.”

On 14 Jun 01, the EPR closing 13 May 01 was referred to the applicant.  His on/off duty conduct was marked unacceptable, and he received an overall recommendation of 2 (do not promote at this time).  Misuse of his government computer was cited, but his excellent performance was also noted.  The applicant did not provide a rebuttal.

On 18 Jun 01, the 384 TRS First Sergeant indicated in a sworn statement that the applicant had been seen, and admitted to, using a government computer in an unsecured classroom to access a pornographic site.  The applicant also related he deleted the website history and temporary Internet files.

On 26 Jun 01, the commander vacated the suspended reduction and reduced the applicant to A1C, with a DOR of 9 May 01, for wrongfully displaying porn on a government computer on or about 8 Jun 01.  The applicant’s written presentation contended his cries for help [and external controls] were initially not heard or were misdirected.  He maintained that despite the external controls, his addiction was irrational and his recovery required time.  He believed additional discipline would not solve the situation and his career was in an unrecoverable tailspin.

On 27 and 29 Jun 01, the applicant underwent a command-directed MHC evaluation for assessment of addictive behaviors.  The applicant reported that prior to his enlistment, his first marriage lasted one year due to his addictive behaviors and multiple affairs, he lost three jobs in one month, and he was evicted from his home due to alcohol and drug abuse.  Sexual promiscuity and alcohol abuse continued through technical school.  In 1992, his second wife demanded these actions stop and he went “underground.”  In 1996, his wife discovered his use of porn websites and installed a filter on their home computer.  He then turned to office computers.  Diagnosis was Axis I, 302.9, Sexual Disorder, NOS.

On 25 Jul 01, the staff psychologist and neuropsychologist provided the completed MHC evaluation to the commander.  The applicant had been largely unsuccessful in his efforts to cut down or control his behavior or to successfully manage them through participation in individual psychotherapy.  There was no evidence of other mental health problems.  Diagnoses were Axis I, 302.9, Sexual Disorder NOS, and 309.0, Adjustment Disorder with depressed mood.  The applicant was found suitable for continued military service on the basis of these diagnoses, and there was no evidence of a psychiatric disorder that would preclude him from functioning in his career field.  He was recommended for a residential treatment facility specializing in sexual addictions; however, efforts were being directed towards identifying civilian treatment facilities as there were no specialists within the Air Force mental health community.  With full participation in a 
specialized treatment program, the applicant was expected to recover and function successfully.  He did not have a psychiatric disorder that would make him eligible for Medical Evaluation Board (MEB) processing. 

On 14 Sep 01, the applicant was notified of his commander’s intent to recommend an under-other-than-honorable-conditions (UOTHC) discharge for conduct prejudicial to good order and discipline, i.e., the conduct which prompted the nonjudicial punishment actions.  

A 2 Oct 01 MHC entry reported the applicant indicated he was separating in approximately two months, had obtained a good job, was feeling more positive, and did not desire services from this clinic.  

On 24 Oct 01, the commander recommended the applicant for a UOTHC discharge, without probation and rehabilitation (P&R).

On 1 Nov 01, the applicant admitted to unauthorized use of government computers.  He searched for lingerie-type sites but stopped before he accessed porn sites.

On 5 Nov 01, a MHC entry reported the applicant consented for a trial of Prozac.  

On 1 Apr 02, an Administrative Discharge Board (ADB) was convened to determine whether discharge prior to the expiration of the applicant’s term of service was appropriate because of a pattern of misconduct which was prejudicial to good order and discipline.  The ADB found that the applicant violated a lawful general instruction by wrongfully displaying pornographic images on his government computer on or about 30 Nov 00; on divers occasions between, on or about 2 and 6 Apr 02; and on 8 Jun 01.  The ADB recommended he be separated with a general discharge without P&R.

The discharge action was found legally sufficient on 22 Apr 02; the staff judge advocate recommended a general discharge without P&R.  The discharge authority approved the findings and recommendations of the ADB on 7 May 02.

On 8 May 02, the EPR closing 8 May 02 was referred to the applicant.  His on/off conduct was marked unacceptable and he was given an overall rating of 2 (not recommended for promotion at this time).  The applicant elected not to provide comments.

On 9 May 02, the applicant was discharged in the grade of A1C with a general characterization for misconduct after 15 years, 2 months, and 15 days of active service.

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AFBCMR MEDICAL CONSULTANT EVALUATION:

The Consultant provides details regarding the applicant’s behavior and diagnosis.  The applicant was diagnosed with an Axis I, 302.9, Sexual Disorder, NOS.  This category of the general heading Sexual and Gender Identity Disorders in DSM IV is included for coding disorders of sexual functioning that are not classifiable in any of the specific categories.  He does not meet the diagnostic criteria for paraphilias.  The commander-directed evaluation by the neuropsychologist found the applicant did not have a psychiatric disorder eligible for MEB processing.  In accordance with DOD Instruction (DODI) 1332.38, Physical Disability Evaluation, sexual gender and identity disorders, including sexual dysfunctions and paraphilias, are defects of a developmental nature that do not constitute a physical disability and are not ratable.  Therefore, disability processing was not warranted.  The applicant’s favorable performance evaluations throughout his career attest to his fitness for duty; this performance coincided with his Sexual Disorder, NOS, both before and after diagnosis.  Although the psychological evaluation concluded the applicant could be retained, his commander could have considered separation for conditions of unsuitability due to impulse control disorder, in accordance with AFI 36-3208.  However, according to this instruction, discharge is not appropriate if the airman’s record would support discharge for another reason, such as misconduct or unsatisfactory performance.  Treatment included individual psychotherapy through regular mental health visits, referral to specialty care within the civilian community, and medication.  Treatment for Sexual Disorders is often unsuccessful; however, there is no evidence in the record that the medical community neglected the applicant or that medical neglect contributed to the applicant’s difficulties.  No change in the record is warranted.

A complete copy of the evaluation is at Exhibit C.

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APPLICANT'S REVIEW OF AIR FORCE EVALUATION:

Counsel asserts the applicant’s recognized condition inevitably led to the kind of conduct which resulted in the three Article 15s.  Assuming the Board does not wish to grant a medical discharge, counsel contends it is in a position to upgrade the general discharge to honorable and remove the Article 15s on the grounds that the applicant’s psychiatric condition was the causative factor for the nonjudicial punishments.  Counsel concludes the applicant should not be penalized because his clear-cut psychiatric disability does not warrant medical separation.

A complete copy of counsel’s response is at Exhibit E.

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ADDITIONAL AIR FORCE EVALUATION:

AFLSA/JAJM notes the applicant does not dispute the facts underlying his discharge.  His contention that he suffers from a condition meriting a medical discharge was disputed by the AFBCMR Medical Consultant.  From a military justice perspective, a person is not criminally responsible for his/her actions if he/she “as a result of a severe mental disease or defect was unable to appreciate the nature and quality or wrongfulness of his or her acts.”  Even if the applicant’s condition is a severe mental disease or defect, there is no evidence it affected his ability to appreciate the nature and quality or wrongfulness of his acts.  On the contrary, his own statements show he understood what he was doing.  His condition does not warrant setting aside the nonjudicial punishment actions.  The applicant had defense counsel representation during his nonjudicial punishment proceedings and during his discharge board, where he had both civilian and military counsel.  The discharge board considered the impact of the applicant’s addiction on his behavior and nevertheless chose to discharge him for his admitted misconduct.  None of the relief requested is appropriate and denial is recommended.

A complete copy of the evaluation is at Exhibit F.

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APPLICANT’S REVIEW OF ADDITIONAL EVALUATION:

Counsel asserts they have never argued that the separation proceedings lacked legal sufficiency but that equity suggests both the character and quality of the applicant’s discharge should be upgraded.

A complete copy of counsel’s response is at Exhibit H.

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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 timely filed.

3.	Insufficient relevant evidence has been presented to demonstrate the existence of error or injustice.  After a thorough review of the evidence of record and counsel’s submission, we are not convinced the applicant’s nonjudicial punishments should be voided, his grade of SSgt restored, or his general discharge for misconduct changed to an honorable discharge for medical disability.  Counsel appears to contend, in part, that his client essentially could not stop himself from accessing porn sites on his government computer because of his addictive sexual disorder, and that somehow the Air Force facilitated his misconduct by requiring him to work with government computers.  However, we do not find these assertions sufficiently persuasive to override the evidence of record or the evaluations provided by the Medical Consultant and the Air Force.  The Medical Consultant indicated the applicant did not meet the criteria for paraphilias or suffer from a psychiatric disorder that was eligible for MEB processing.  The Consultant added that disorders such as the applicant’s were a defect of a developmental nature that did not constitute a disability and were not ratable.  Many individuals in both civilian and military capacities cope with various addictions through counseling/medication and acceptance of personal responsibility.  The applicant’s own statements illustrate he understood the wrongful nature of his acts and knew what he was doing.  As such, we fail to see how the Air Force should be found culpable in some way for the applicant’s circumstances.  Counsel has not established to our satisfaction that authorities failed to consider the impact of the applicant’s addiction on his behavior, that he was medically neglected, that the nonjudicial punishments imposed on him were inappropriate, that he was not afforded opportunities or assistance towards rehabilitation, or that his general discharge was unjust.  Counsel’s submission has not persuaded us the applicant was the victim of an error or injustice warranting relief on the basis of either merit or clemency.   We therefore agree with the recommendations and rationale of the Medical Consultant and the Air Force and, in view of the above and absent persuasive evidence to the contrary, find no compelling basis to recommend granting the relief sought.

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 issue(s) 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 17 August 2005 under the provisions of AFI 36-2603:

			

The following documentary evidence relating to AFBCMR Docket Number BC-2004-02235 was considered:

  Exhibit A.  DD Form 149, dated 15 Jul 04, w/atchs.
  Exhibit B.  Applicant's Master Personnel Records.
  Exhibit C.  Letter, AFBCMR Medical Consultant, dated 17 May 05.
  Exhibit D.  Letter, SAF/MRBR, dated 20 May 05.
  Exhibit E.  Letter, Counsel, dated 20 Jun 05.
  Exhibit F.  Letter, AFLSA/JAJM, dated 14 Jun 05.
  Exhibit G.  Letter, AFBCMR, dated 16 Jun 05.
  Exhibit H.  Letter, Counsel, dated 15 Jul 05.