RECORD OF PROCEEDINGS AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS IN THE MATTER OF: DOCKET NUMBER: BC-2010-04551 COUNSEL: NONE HEARING DESIRED: NO ________________________________________________________________ APPLICANT REQUESTS THAT: His records be corrected to reflect his name was placed on the temporary disability retired list (TDRL) with an honorable discharge in lieu of his General (Under Honorable Conditions) discharge for misconduct. ________________________________________________________________ APPLICANT CONTENDS THAT: In a four page Brief of Counsel, Counsel contends the applicant was severely mentally impaired when he engaged in the misconduct that precipitated his court martial and subsequent administrative discharge. The Air Force erroneously determined his misconduct was unrelated to his diagnosed post-traumatic stress disorder (PTSD) and unjustly terminated his processing through the disability evaluation system (DES) in favor of his administrative discharge for misconduct. In making its decision to terminate the disability separation processing, the Secretary of the Air Force Personnel Council (SAFPC) highlighted the applicant’s selection to attend SOS as “particularly relevant” when determining that he should not be placed on the TDRL. The applicant is unemployed with a 100 percent disability rating from the Department of Veterans Affairs (DVA) and relies entirely on his DVA and Social Security Administration (SSA) disability payments for income. When the applicant’s outstanding achievements as a security forces officer who served in combat are balanced against the misconduct influenced by his PTSD and other disabilities, it is reasonable to conclude that he should be placed on the temporary disability retired list. In support of his request, the applicant provides a four page Brief of Counsel and copies of his DD Form 214, Certificate of Release or Discharge from Active Duty; AF Form 356, Findings and Recommended Disposition of the USAF PEB; DVA rating decision; Neuropsychological Evaluation and Treatment Summary; excerpts of testimony before his Board of Inquiry (BOI); and HQ AFPC/DPSDD memorandum related to his dual action processing. The applicant’s complete submission, with attachments, is at Exhibit A. ________________________________________________________________ STATEMENT OF FACTS: The applicant’s military personnel records indicate he was commissioned a second lieutenant (O-1), Reserve of the Air Force on 30 Sep 99 and was progressively promoted to the grade of captain (O-3), effective and with a date of rank of 30 Sep 03. On 13 Sep 06, the applicant was convicted at a general court- martial of violating one specification of Article 134, Uniform Code of Military Justice (UCMJ), and two specifications of violating Article 92, UCMJ. Specifically, he was found guilty of fraternizing with an enlisted subordinate by allowing her to perform oral sex on him, and of an indecent act with the same enlisted subordinate by allowing her to perform oral sex on him while a senior master sergeant watched, masturbated, and gave direction to her. He was also convicted of impeding a criminal investigation by instructing a witness to lie to investigators and eliminate evidence. He was sentenced to 60 days confinement, forfeiture of $2250.00 pay per month for three months, and a reprimand. On 23 Oct 06, the applicant was notified by his commander of her intent to initiate action under AFI 36-3206, Administrative Discharge Procedures for Commissioned Officers, that required the applicant to show cause for his retention on active duty. The reasons for the action were that between 1 and 31 Dec 04, he committed the acts described above. On 11 Nov 06, after consulting with legal counsel, the applicant acknowledged receipt of the action and his understanding of his rights in the matter. On 16 Nov 06, the applicant submitted a conditional waiver of his right to a Board of Inquiry (BOI), contingent upon his receipt of no less than a General (Under Honorable Conditions) character of service. On 17 Nov 06, his request for a conditional waiver was denied. On 24 Apr 07, a BOI convened to hear the matter under review. After considering all the facts and evidence presented, the board found by a preponderance of the evidence the applicant committed an indecent act and endeavored to impede a criminal investigation. The BOI recommended he be separated with a General (Under Honorable Conditions) discharge. On 20 Jun 07, the Show Cause Authority, concurred with the findings of the BOI and recommended the applicant’s discharge from the Air Force with a General (Under Honorable Conditions) discharge. On 20 Jul 07, the case was found to be legally sufficient. On 15 Aug 07, the discharge authority concurred with the recommendation and forwarded the case to the Secretary of the Air Force Personnel Council (SAFPC) for dual action consideration. On 23 Aug 07, the Informal Physical Evaluation Board (IPEB) determined the applicant was unfit for continued military service for his diagnosis of PTSD with major depressive disorder and panic disorder with agoraphobia and considerable social and industrial adaptability impairment and recommended he be placed on the TDRL with a 50 percent disability rating. The applicant accepted the findings of the IPEB on 6 Sep 07 and waived his rights to further proceedings at the Formal Physical Evaluation Board (FPEB). On 9 Nov 07, SAFPC completed a dual-action review of the applicant’s disability and administrative separation cases and on 20 Nov 07, the Secretary’s designee directed he be administratively discharged, with service characterized as General (Under Honorable Conditions). The Secretary’s designee further directed the termination of his separation action for medical disability. On 6 Dec 07, the applicant was furnished a General (Under Honorable Conditions) discharge for Misconduct and was credited with eight years, two months, and seven days of total active service. The remaining relevant facts pertaining to this application are contained in the letters prepared by the appropriate offices of the Air Force which are at Exhibits C and D. ________________________________________________________________ AIR FORCE EVALUATION: AFPC/DPSOS recommends denial, indicating there is no evidence of an error or injustice. The applicant met a Medical Evaluation Board (MEB) along with his administrative discharge board. SAFPC terminated the processing of his disability separation under the provisions of AFI 36-3212, Physical Evaluation for Retention, Retirement, and Separation, and directed he be administratively discharged under the provisions of AFI 36-3207, Separating Commissioned Officers. Based on the documentation on file and in the master personnel records, the discharge was consistent with the procedural and substantive requirements of the discharge regulation and within the discretion of the discharge authority. A complete copy of the AFPC/DPSOS evaluation is at Exhibit C. AFPC/JA recommends denial, indicating there is no evidence of an error or injustice. The crux of the applicant’s case is his allegation the Air Force unjustly determined that his misconduct was unrelated to his diagnosed PTSD disability. In particular, he cites opinionof his DVA doctor,written years after the fact, indicating that his combined symptoms/diagnosis of PTSDand Traumatic Brain Injury (TBI) could have directly led or contributed to the actions which led to his court martial and subsequent administrative discharge. He argues that SAFPC’s conclusionthat his PTSD and wrongful actions are unrelated is nonsensical.However, SAFPC did notactually assertthe disability and the misconduct were unrelated. Rather, SAFPC determined that hisdisability was not so severe that it excused his wrongful conduct.The DVA doctor himself never goes so faras to say the disability excused the misconduct, opining there could bea connection between the two. In fact, the connectionbetween his PTSD and sexual misconduct is remote as asserted by the applicant himself in his unsworn statement during the BOI: “[p]lease do not infer from this statement that I am trying toexcuse my actions in Dec 04by blaming it on my medicalproblems, that is not my intent.” Testimony from another witness called by the applicant at the BOI indicated there are three clusters of symptoms for PTSD: re-experiencing symptoms(e.g., flashbacksand nightmares), avoidance symptoms (e.g., avoiding talking about the trauma), and hyper-arousal symptoms (e.g., sleep disturbance, anger, and hyper-vigilance). The symptoms of PTSD simply do not include sexual relations with a military subordinate. Additionally, Counsel argues the applicant’s academic failure while attending SOSisevidence the applicant’scognitive abilities were impaired by his PTSD. While inability to concentrate is a symptom of PTSD, the DVA doctor omits any mention of another possible cause for theapplicant’s PTSD besides his experiences overseas. In point offact, the applicant did not seek medical attention for PTSD until his return from SOS, some 13 months after his deployment, at which time it was clear to him that he was the subject of anOffice of Special Investigations (OSI) investigation for hismisconduct. Ultimately, the Board is left to determine if the DVA doctor’s opinion, written years after the fact and based on incomplete information, is sufficiently convincing to determine the decision by SAFPC, which was based on a full development ofthe facts in both a court-martial and subsequent BOI, constitutes an error or injustice. In the end, SAFPC granted the applicant the general discharge he had asked for at his BOI. He has received his benefits from the DVA, and indeed has usedhis access to the DVA care in pursuing his application to theBoard. He continues to receive medical care for his disability that he was so anxious to obtain from his BOI. In light ofthese facts, the applicant has simply failed to prove any injustice, much less one meriting correction by the Board. A complete copy of the AFPC/JA evaluation is at Exhibit D. APPLICANT'S REVIEW OF AIR FORCE EVALUATION: Counsel argues the AFPC/JA evaluation mischaracterizes Counsel’s arguments and fails to acknowledge the fundamental nature of the errors found within the SAF/MRBP memorandum describing the rationale for terminating the applicant’s disability processing in favor of his administrative discharge for misconduct. The memorandum states, “the Board determined that the member’s clinical diagnosis did not impair his cognitive functioning…” This statement is unequivocal and conclusory; however, the evidence presented establishes the applicant was cognitively impaired as a result of his combat related PTSD/TBI. The applicant agrees he did not meet the legal mental responsibility standard required for a complete defense. In fact he has never claimed that he did. Instead his claim focuses on the issue of whether the SAFPC exercised their discretion based upon an accurate medical and scientific understanding of the level of the applicant’s cognitive impairment. If SAFPC had the benefit of the DVA doctor’s opinion and his attending psychiatrist’s full evaluation, they would not have been able to rule out the applicant’s cognitive impairment at the time of his misconduct. The advisory opinion also suggests that Counsel’s arguments regarding the link between the applicant’s PTSD and his misconduct has been inconsistent over time. However, Counsel points out that more understanding exists now about combat related PTSD and TBI than existed a the time of the applicant’s offenses, his court-martial, his BOI, and when SAFPC acted on the applicant’s discharge. Additionally, the advisory opinion fails to appreciate the fact the BOI members did not have the ability to act on the applicant’s medical disability issue, but focused solely on the misconduct, whether to retain the applicant, and if not, how to characterize his service. Everyone understood the issue of medical retirement versus administrative discharge would be later resolved at SAFPC under dual processing. Hence, the applicant and his counsel recognized the BOI was not the proper forum to argue for medical retirement. Finally, the advisory opinion infers the applicant may have been lying to the DVA doctor about how he was progressing at SOS, but misses the real point. The DVA doctor is simply challenging the statement in the SAF/MRBP memorandum which placed emphasis on the applicant’s attendance at SOS as somehow establishing that he was not cognitively impaired at the time. There can be no question the applicant is suffering from PTSD and TBI; and no question he engaged in misconduct for which he has taken responsibility. All he asks is that the Board revisit the decision to adversely characterize his service in lieu of medical retirement. His supporting documentation establishes the original decision, as reported in the SAF/MRBP memorandum, was based on erroneous assumptions and understandings. Based on the evidence, medical retirement is the just outcome. A complete copy of Counsel’s response is at Exhibit E. ________________________________________________________________ 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. We took notice of his complete submission in judging the merits of the case; however, we agree with the opinion and recommendation of the Air Force offices of primary responsibility (OPR) and adopt their rationale as the basis for our conclusion the applicant has not been the victim of an error or injustice. Counsel’s contentions are duly noted; however, these assertions and the documentation provided are not sufficient to persuade us that SAFPC’s decision to terminate the applicant’s disability discharge in favor of his administrative discharge for misconduct was erroneous. Therefore, absent persuasive evidence that appropriate directives were not followed, there was an abuse of discretionary authority, or the applicant was denied rights to which he was entitled, we find no basis to recommend granting the relief sought in this application. ________________________________________________________________ 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-2010-04551 in Executive Session on 25 Aug 11, under the provisions of AFI 36-2603: The following documentary evidence was considered: Exhibit A. DD Form 149, dated 6 Dec 10, w/atchs. Exhibit B. Applicant's Master Personnel Records. Exhibit C. Letter, AFPC/DPSOS, dated 13 Jan 11. Exhibit D. Letter, AFPC/JA, dated 1 Mar 11. Exhibit E. Letter, AFBCMR, dated 25 Mar 11. Exhibit F. Letter, Counsel, dated 22 Apr 11, w/atch.