RECORD OF PROCEEDINGS AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS IN THE MATTER OF: DOCKET NUMBER: BC-2011-01828 COUNSEL: HEARING DESIRED: YES ________________________________________________________________ APPLICANT REQUESTS THAT: 1. He be medically retired as of the date of his separation (8 November 2010) and be placed on the Permanent Disability Retired List (PDRL) with a 30 percent disability rating. 2. He be medically retired with 50 percent of his base pay from the date of his separation. 3. He receive retirement back pay from the date of his separation. ________________________________________________________________ APPLICANT CONTENDS THAT: The Secretary of the Air Force had to choose between medical retirement for a 20 year officer with severe bipolar disorder or discharge with no retirement. The Secretary chose discharge. In 2005, he began to demonstrate alcohol related misconduct which were known to the command. He was undergoing treatment at the time and his command understood the situation. His commander told him he would retire honorably. In 2009, a new squadron commander was assigned to the unit. He initiated separation action against him based on the alcohol related incidents from 2006 through 2008. The Board convened on 9 February 2010 and voted to separate him from the Air Force with a general discharge. At the same time, a Medical Evaluation Board (MEB) found he did not meet retention standards and was diagnosed with bipolar disorder. An Informal Physical Evaluation Board (IPEB) found he was unfit for duty and recommended he be medically retired with a permanent disability rating of 30 percent. The applicant’s case was processed for dual-action. On 3 November 2010, the Secretary of the Air Force approved the applicant’s discharge for misconduct. While he is responsible for his actions, the medical considerations must predominate. His conduct is not excusable, but it is explainable. When balanced against 20 years of faithful service, the misconduct should be subordinate to the medical conditions which played a direct role in causing the misconduct. In support of his appeal, the applicant provides a legal brief, copies of the Board of Inquiry Transcript and other supporting documentation. The applicant’s complete submission, with attachments, is at Exhibit A. ________________________________________________________________ STATEMENT OF FACTS: The applicant enlisted in the Air Force on 5 September 1989 and received his commission on 27 August 2001. On 2 October 2009, the applicant received a Show Cause Notification of Action that was initiated against him by his commander. This notification required the applicant to show cause for retention on active duty. The commander initiated the action because the applicant engaged in serious criminal misconduct punishable by military and civilian authorities. On 22 January 2010, the applicant’s commander amended the Show Cause Memorandum and added that he was initiating the action against him for failure to show acceptable qualities of leadership required of an officer of his or her grade by serious or recurring misconduct punishable by military or civilian authorities. The applicant acknowledged this memorandum on 22 January 2010. On 9 February 2010, pursuant to a Board of Inquiry, the Board found the applicant should not be retained in the United States Air Force. The Board recommended he be removed from active duty and receive a general (under honorable conditions) discharge. On 7 May 2010, an IPEB found the applicant was unfit and recommended he be medically retired with a disability rating of 30 percent for bipolar disorder Type II with Generalized Anxiety Disorder. Pursuant to the dual-action processing, the Secretary directed the applicant be discharged under AFI 36-3206 and terminated the action under AFI 36-3212 on 30 June 2010. The Secretary of the Air Force disapproved the applicant’s resignation and directed he be discharged with a general (under honorable conditions) discharge. He was credited with 20 years 11 months and 4 days of active duty service. ________________________________________________________________ AIR FORCE EVALUATION: AFPC/DPSD recommends denial. There was no controversy surrounding the processing of the applicant’s disability evaluation or the recommendations made by the Board. There is a question as to the ultimate decision to separate the applicant administratively rather than medically. Accountability issues relating to mental illness are rarely clear cut and there is no consensus on how they should be evaluated and applied. The preponderance of the evidence reflects that no error or injustice occurred during the disability process. The complete DPSD evaluation is at Exhibit C. AFPC/DPSOS recommends denial. The Board determined there was no casual relationship between the member’s medical condition and his misconduct. The Air Force Personnel Board determined the applicant be discharged due to misconduct. The discharge was consistent with the procedural and substantive requirements of the discharge regulation and was within the discretion of the discharge authority. The complete DPSOS evaluation is at Exhibit D. ________________________________________________________________ APPLICANT'S REVIEW OF AIR FORCE EVALUATION: The applicant’s attorney states the Board of Inquiry was not asked to find a casual connection between the member’s medical condition and his misconduct. The Board had no choice but to find misconduct under existing law. The Board voted against retention which elevated the misconduct over the consequences of the applicant’s mental health issues. The judgment call should have gone the applicant’s way. Mental illness does not excuse misconduct: it explains it. The Board should be offended by the conduct of the command who had a disregard for law and ethics in an attempt to influence the outcome and interfere with regulatory requirements. The moral thing here is to grant relief because it is proper and the benefit should go to the applicant. The applicant’s complete response is at Exhibit F. ________________________________________________________________ ADDITIONAL AIR FORCE ADVISORY: The IMA Medical Advisor to the BCMR Senior Medical Advisor recommends denial. The applicant’s mental health history from 2005 and 2009 includes multiple mental health diagnosis including generalized anxiety disorder, depression, and alcohol dependence. The applicant had regular and consistent contact with the mental health system during the four years prior to his discharge. Despite the pattern of behavior and work performance issues, the maintenance of social functioning and good family and friend relationships were noted. Upon the recommendation of the mental health staff, an MEB was requested in 2009. The MEB narrative summary recommended the continuation of mental health treatment, non-deployable status and assessed a fair prognosis. On 7 May 2010, the IPEB assigned a 30 percent disability rating for bipolar disorder II with generalized anxiety disorder. There are two important facts to consider: Was the applicant’s discordant behavior the result of his mental health diagnosis and could these conditions override prudent judgment and professional conduct, and Was there an inequity or injustice with the administrative discharge versus a permanent retirement with a 30 percent disability rating given the circumstances of his mental health condition? While the IMA Medical Advisor concedes these mental health conditions possibly contributed to the inappropriate behavior and sub-optimal performance issues; professional conduct and prudent judgment capacity existed to a sufficient level of the where the applicant’s lapses in judgment were not the result of these conditions. The record reflects periods throughout the applicant’s service where his performance demonstrated the mental capacity to adequately perform his assigned duties. Thus, the decision to indulge in reckless and irresponsible behavior more aptly demonstrated a choice of the applicant’s will and not the result of diminished mental capacity. The applicant’s military and civilian infractions justifiably triggered legal review for administrative separation. SAFPC makes the final decision for cases of members with an unfit finding who are also pending administrative separation. There appears to be no inequity or injustice with an administrative separation determination. The persistent pattern of inappropriate behavior and sub-standard job performance justifies the SAFPC determination of a general discharge. The complete IMA Medical Advisor’s evaluation is at Exhibit G. ________________________________________________________________ APPLICANT'S REVIEW OF THE ADDITIONAL AIR FORCE EVALUATION: Under the guise of medical opinion the medical advisory does no more than recapitulate the obvious – a mentally ill man who qualified for medical retirement engaged, while ill, in some minor misconduct. The physician reviewer has no professional or ethical right to comment because he does not know. The applicant’s counsel requests the Board rely upon the health care professional who actually treated the applicant and who felt strongly the medical condition should predominate. The applicant’s complete response is at Exhibit I. ________________________________________________________________ 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 carefully considered counsel’s arguments as well as the available evidence of record; however, we found no indication the actions taken to affect the applicant’s discharge and characterization of his service were improper, contrary to the provisions of the governing instructions, or based on factors other than his own behavior. Furthermore, we are not persuaded by his assertions that the decision to discharge him from the Air Force for his misconduct, rather than permit his medical retirement, was inappropriate or unjust. Furthermore, we note the applicant faced a dual-action consideration through the Secretary of the Air Force Personnel Council who deliberated on whether to separate him administratively, as happened, vice retirement. After reviewing all available facts and evidence of the case, we find no causal relationship between the applicant’s medical condition and his egregious misconduct. Therefore we agree with the Air Force offices of primary responsibility to include the IMA Medical Consultant opinions and recommendations and adopt their rationale as the basis for our conclusion that the applicant has not been the victim of an error or injustice. 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. ________________________________________________________________ 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. ________________________________________________________________ The following members of the Board considered BCMR Docket Number BC-2011-01828 in Executive Session on 14 February 2012, under the provisions of AFI 36-2603: The following documentary evidence pertaining to Docket Number BC-2011-01828 was considered: Exhibit A. DD Form 149, dated 9 May 11, w/atchs. Exhibit B. Applicant's Master Personnel Records. Exhibit C. Letter, AFPC/DPSD, dated 10 Jun 11. Exhibit D. Letter, AFPC/DPSOS, dated 11 Jul 11. Exhibit E. Letter, SAF/MRBR, dated 29 Jul 11. Exhibit F. Applicant’s Response, dated 10 Aug 11. Exhibit G. IMA Medical Advisor, dated 18 Oct 11. Exhibit H. Letter, SAF/MRBR, dated 3 Nov 11. Exhibit I. Applicant’s Response, dated 9 Dec 11.