RECORD OF PROCEEDINGS AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS IN THE MATTER OF: DOCKET NUMBER: BC-2012-05459 COUNSEL: NONE XXXXXXX HEARING DESIRED: NO ________________________________________________________________ APPLICANT REQUESTS THAT: His narrative reason for separation be changed. ________________________________________________________________ APPLICANT CONTENDS THAT: His DD Form 214, Certificate of Release or Discharge from Active Duty, item 28 reflects “MISCONDUCT.” He was injured during Operation ENDURING FREEDOM (OEF) and was not able to return to his job as a vehicle operator. He was waiting for a medical discharge; however, he was bribed by his commander to take the honorable [sic] discharge so he could be with his family. The applicant provides no documents in support of his request. His complete submission is at Exhibit A. ________________________________________________________________ STATEMENT OF FACTS: On 25 Nov 1997, the applicant enlisted in the regular Air Force. On or about 14 Dec 2001, the applicant tripped and fell while getting off of a bus in a deployed location. On 28 Dec 2001, the applicant was seen at Walter Reed Medical Center (WRMC), Washington D.C., for his knee pain. The medical officer at WRMC diagnosed him with a femoral medial condyle bruise, which caused inflammation and pain in his left knee. On 22 Jul 2004, an informal Line of Duty determination was initiated. On 3 Aug 2004, his commander notified him that he was recommending he be discharged from the Air Force under the provisions of AFPD 36-32, Military Retirements and Separations and AFI 36-3208, Administrative Separation of Airmen. The specific reason for this action was a pattern of misconduct prejudicial to good order and discipline. The detailed reasons are reflected in the Notification Memorandum at Exhibit B. On 3 Aug 2004, the applicant acknowledged receipt of the discharge notification and was advised of his right to consult with legal counsel and submit statements in his own behalf. On 9 Aug 04, the 366 LRS/CC, recommended finding "In Line of Duty." On 10 Aug 2004, after consulting with counsel, the applicant offered a conditional waiver of his rights associated with an administrative discharge board hearing contingent upon receiving no less than a general (under honorable conditions) discharge. On 25 Aug 2004, it was determined that the injury to his knee was “In the Line of Duty.” On 30 Aug 2004, the Staff Judge Advocate recommended the applicant’s conditional waiver be accepted and he be separated with a general (under honorable conditions) discharge without probation and rehabilitation. On 30 Aug 2004, the discharge authority accepted the conditional waiver and approved the applicant’s discharge. On 2 Sep 2004, he was discharged in the grade of Senior Airman (SrA, E-4) with a general (under honorable conditions) discharge. The narrative reason for separation is “MISCONDUCT.” He served six years, nine months and eight days of total active service. ________________________________________________________________ AIR FORCE EVALUATION: AFPC/DPSOR recommends denial. DPSOR states that the applicant did not submit any evidence or identify any errors or injustice in the discharge processing. They found no evidence of an error or injustice in the processing of the applicant’s discharge. The documentation on file in the master personnel records supports the basis for discharge which was consistent with the procedural and substantive requirements of the discharge regulation and was within the discretion of the discharge authority to include the characterization of discharge. The complete DPSOR evaluation is at Exhibit C. ________________________________________________________________ APPLICANT'S REVIEW OF THE AIR FORCE EVALUATION: If his records are reviewed prior to his deployment to OEF, the Board will see that he was an exemplary airman. He had numerous awards and decorations while serving his country. Not all of the awards and decorations are attached as the amount is too voluminous. His family moved back to Nevada during the final months leading up to his discharge. On 2 Jun 2004 he was offered an Article 15 in lieu of waiting for the Medical Evaluation Board (MEB) to meet and decide on his discharge. It was illegal for any commanding officer to circumvent the MEB. At the time of his discharge, he was eager to be reunited with his family and his unit was aware of this. He was injured and unable to perform his duties and was viewed as someone taking up a position. It was in their best interest to "push me out the door." He is currently rated by the Department of Veterans Affairs (DVA) as "Permanently and Totally Disabled." The injuries that prevent him from working are the same injuries that prevented him from doing his job in 2002-2004. He implores the Board to review the included documentation to understand the type of person he was and how he was perceived after his injury. In further support of his request, the applicant provides a time line of events leading up to his discharge and various other documents associated with his appeal. His complete response with attachments, is at Exhibit E. ________________________________________________________________ ADDITIONAL AIR FORCE EVALUATION: The BCMR Medical Consultant recommends denial of the applicant's implicit petition to supplant his administrative discharge with a medical discharge. The Medical Consultant states that the applicant's MEB should have been carried out and his case referred to a Physical Evaluation Board (PEB) for a determination of his fitness to serve. Based upon the chronic and unrelenting nature of the his knee pain and vertigo, he would have been found unfit for further military service by a PEB and an appropriate disability rating assigned to these unfitting medical conditions. The final recommended disposition would have been discharge with severance pay. However, due to the fact that the applicant would have been concurrently the subject of an approved administrative discharge and a medical discharge, his case would have been referred to the Secretary of the Air Force Personnel Council (SAFPC) for a "dual action" review for the determination of which basis for discharge [administrative versus medical] to execute. Viewing the applicant's case through the lens of a BCMR, both an error and injustice occurred by not allowing the applicant's medical case to proceed with the MEB and PEB actions and to have it reviewed by SAFPC. Similarly, viewing the applicant's case through the lens of a Discharge Review Board (DRB), depriving the applicant's access to the military Disability Evaluation System (DES) and the opportunity for a "dual-action" review of his case by SAFPC could also be construed as an inequity and possible impropriety. However, these facts do not automatically justify the outcome desired by the applicant. In this respect, finding no causal or mitigating relationship between the applicant's numerous disciplinary infractions and his medical conditions, SAFPC, more likely than not, given the choice, would have recommended execution of the approved administrative discharge. Nevertheless, the applicant is advised that the Board or a subsequent DRB review is not bound to any discussions herein, and that either Board may make its decision based independently upon the supplied evidence, to include consideration of an alternative remedy, e.g., change of discharge characterization or narrative reason for discharge to Secretarial Authority. The complete BCMR Medical Consultant’s evaluation is at Exhibit F. _______________________________________________________________ APPLICANT'S REVIEW OF AIR FORCE EVALUATION: On 28 Oct 2013, a copy of the BCMR Medical Consultant’s evaluation was forwarded to the applicant for review and comment within 30 days. As of this date, this office has received no response (Exhibit G). _______________________________________________________________ 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 the applicant’s complete submission, we are not persuaded his narrative reason for separation should be changed to reflect that he was discharged for medical reasons. The applicant’s contentions are duly noted; however, we do not find his assertions sufficiently persuasive to override the rationale provided by the BCMR Medical Consultant. The Consultant’s review of the applicant’s service medical records found that the applicant’s MEB should have been carried out and his case referred to a PEB for a determination of his fitness to service. However, he further concluded that discharge for misconduct would still have been the most likely outcome even if the case had been processed as a dual action case. In view of the above and absent persuasive evidence to the contrary, we agree with the BCMR Medical Consultant that the applicant has failed to sustain his burden of having suffered either an error or an injustice. Therefore, we find no basis to recommend granting the relief sought. ________________________________________________________________ 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 this application in Executive Session on 5 Dec 2013, under the provisions of AFI 36-2603: , Panel Chair , Member , Member The following documentary evidence was considered in AFBCMR BC- 2012-05459: Exhibit A. DD Form 149, dated 14 Nov 2012. Exhibit B. Applicant's Available Military Records. Exhibit C. Letter, AFPC/DPSOR, dated 29 Jan 2013. Exhibit D. Letter, SAF/MRBR, dated 3 Feb 2013. Exhibit E. Letter, Applicant, dated 28 Feb 2013, w/atchs. Exhibit F. Letter, BCMR Medical Consultant, dated 28 Oct 2013. Exhibit G. Letter, SAF/MRBC, dated 28 Oct 2013. Panel Chair 4 4