RECORD OF PROCEEDINGS AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS IN THE MATTER OF: DOCKET NUMBER: BC-2012-05845 COUNSEL: NONE HEARING DESIRED: YES _________________________________________________________________ APPLICANT REQUESTS THAT: His Under Other Than Honorable Conditions (UOTHC) discharge be upgraded to honorable or general (under honorable conditions) discharge. _________________________________________________________________ APPLICANT CONTENDS THAT: His discharge was unjust because he was involved in two accidents (both included Traumatic Brain Injuries/TBI) while on active duty: First, he was struck by a sheet of plywood during a “dust devil.” During this accident, he sustained severe injuries to his face, which are still visible. The scar tissue inside his mouth caused his gums to erode and his teeth to fall out. The back of his head/neck hit the front of a goose neck flatbed trailer. He questions how long he was unconscious because he was not coherent until he arrived at the hospital. Second, he was involved in a motorcycle accident caused by high winds. He was unconscious for several hours and was flown to Wilford Hall Medical Center to recover. He sustained the same injuries as the first accident. In addition, he had pins in his right ulna and fifth metacarpal that never healed correctly and required a Proximal Row Carpectomy in 2010. After the second accident, he was offered a medical discharge due to a back condition. He refused; focused his attention on his recovery and returning duty. He is scheduled to have surgery on both ankles to pin and fuse the bones. The recovery period is projected to take two years and he needs to have both hips resurfaced. His severe medical problems, including the TBI he sustained caused his performance to decline and impaired his judgment. He needs his discharge upgraded to get a proper diagnosis of his medical problems. In support of his request, the applicant provides a personal statement, copies of his DD Form 293, Application for the Review of Discharge from the Armed Forces of the United States; VA Forms 21-4138, Statement in Support of Claim; AF Forms 909, Airman Performance Report (Airman Basic through Senior Airman); DD Form 214, Certificate of Release or Discharge from Active Duty, and various other documentation associated with his request. The applicant's complete submission, with attachments, is at Exhibit A. _________________________________________________________________ STATEMENT OF FACTS: On 7 May 81, the applicant enlisted in the Regular Air Force. On 29 Dec 81, the applicant failed to attend a Reading Test. For this misconduct, he received a Letter of Reprimand (LOR). On 11 Mar 82, an In the Line of Duty (ILOD) determination was initiated because he was injured when hit by a piece of plywood that blew in his face. The proximate cause of the applicant’s injury was a weather related mishap. On 8 Apr 82, the applicant’s injury was determined to be ILOD. On 3 May 82, an ILOD determination was initiated because he was injured while riding a motorcycle off base. The proximate cause of the applicant’s injury was due to his inability to properly operate his motorcycle under adverse conditions. On 16 Jun 82, the applicant’s injury was determined to be ILOD. On or about 20 Apr 83, the applicant wrongfully used Tetrahydrocannabinol, a Schedule I controlled substance. For this misconduct, he received an Article 15, Uniform Code of Military Justice (UCMJ), with punishment consisting of reduction to the grade of airman, forfeiture of $100.00 pay per month for two months and ordered into correctional custody for a period of 30 days. On 27 May 83, the portion of punishment which extended to reduction in grade to airman was suspended until 15 Nov 83, at which time it was to be remitted without further action unless it was sooner vacated. On 1 Jul 83, the applicant’s suspended reduction to the grade of airman was vacated and duly executed. On or about 26 Aug 83, the applicant without authority, failed to go to his appointed place of duty. For this misconduct, he received an Article 15, UCMJ, with punishment consisting of reduction to the grade of airman basic and forfeiture of $50.00 pay. On 28 Oct 83, the applicant was tried by a Special Court-Martial and pled not guilty to Charge I, for operating a passenger car, while drunk in violation of Article 111 and Charge II, wrongful possession of some amount of marijuana, a Scheduled I controlled substance, in violation of Article 134, UCMJ. He was found guilty of Charge I and not guilty of Charge II. For this misconduct, he was sentenced to a Bad Conduct Discharge (BCD), confinement at hard labor for two months and forfeiture of $382.00 pay per month for two months. On 14 Nov 83, the convening authority approved the findings, except the BCD was changed to a lesser punishment of confinement at hard labor for two months, making a total of confinement at hard labor for four months. The sentence as changed was approved and executed. On 23 Nov 83, the applicant was notified of his commander’s intent to recommend he be discharged from the Air Force under the provisions of AFR 39-10, Administrative Separation of Airmen. After consulting with counsel, the applicant waived his right to a hearing before an administrative discharge board and to submit a statement in his own behalf On 9 Dec 83, the Staff Judge Advocate reviewed the case and found it legally sufficient to support discharge and recommended to the 554th Combat Support Group commander (554 CSG/CC) that the unconditional waiver be accepted and the applicant be discharged with an UOTHC discharge, without the offer of probation and rehabilitation. The 554 CSG/CC reviewed the case file and recommended the Tactical Fighter Weapons Center commander (TFWC/CC) accept the applicant’s unconditional waiver and order he be discharged with an UOTHC discharge. On 12 Dec 83, the TFWC/SJA reviewed the case file and found it legally sufficient to support discharge and recommended the TFWC/CC accept the applicant’s unconditional waiver and approve his UOTHC discharge without the offer of probation and rehabilitation. On 13 Dec 83, the TFWC/CC reviewed the case and approved the recommendation to discharge the applicant with an UOTHC discharge. On 20 Dec 83, the applicant was discharged with service characterized as UOTHC in the grade of airman basic. He served 2 years, 5 months and 21 days of total active service. _________________________________________________________________ AIR FORCE EVALUATION: HQ AFPC/DPSOR recommends denial. DPSOR states that the applicant’s service to the Air Force reflects significant negative aspects which outweigh his positive contributions. In accordance with AFI 36-3208 (formerly AFR 39-10), an UOTHC discharge is appropriate when “basing the reason for separation on a pattern of behavior or one or more acts that constitute a significant departure from the conduct expected of airmen.” DPSOR states that before recommending discharge, the commander stated that he ensured rehabilitation efforts were made. Despite having had every opportunity to correct his substandard behavior, the applicant refused to take responsibility for his actions. He demonstrated his unwillingness to adhere to military standards and showed little rehabilitative potential considering his repeated acts of misconduct. DPSOR states that the applicant did not provide any evidence than an error or injustice occurred in the processing of his discharge warranting a change to his separation code. The complete DPSOR evaluation is at Exhibit C. _________________________________________________________________ APPLICANT’S REVIEW OF THE ADDITIONAL AIR FORCE EVALUATION: By letter dated 5 May 13, the applicant states he has two reasons for seeking an upgrade to his discharge. First, he wants to be eligible for healthcare. He is not asking for long term healthcare but would like to be given a thorough physical and be tested for possible long term effects of the injuries he sustained while on active duty. Specifically, he is concerned about the periods of head trauma and the loss of consciousness. He is aware that his medical records reflect two separate incidents of this. Second, the applicant wants the opportunity to qualify for a Veterans Administration (VA) certificate of eligibility for a home loan. The applicant’s complete submission 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 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 an error or injustice. We took notice of the applicant’s complete submission in judging the merits of the case; however, we find no evidence of an error or injustice that occurred in the discharge processing. Based on the available evidence of record, it appears the discharge was consistent with the substantive requirements of the discharge regulation and within the commander’s discretionary authority. The applicant has provided no evidence which would lead us to believe the characterization of the service was contrary to the provisions of the governing regulation, unduly harsh, or disproportionate to the offenses committed. While the applicant contends his discharge was unjust because of two TBI injuries, and states that he was offered a medical discharge, he has not provided any evidence showing that he had an unfitting medical condition that would have required his processing through the Military Disability Evaluation System - a prerequisite to a medical discharge. In the interest of justice, we considered upgrading the discharge based on clemency; however, we do not find the evidence presented is sufficient to compel us to recommend granting the relief sought on that basis. Therefore, in the absence of evidence to the contrary, we find no basis upon which to recommend granting the relief sought in this application. ________________________________________________________________ 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 AFBCMR Docket Number BC-2012-05845 in Executive Session on 26 Sep 13, under the provisions of AFI 36-2603: Panel Chair Member Member The following documentary evidence was considered: Exhibit A. DD Form 149, dated 13 Dec 12, w/atchs. Exhibit B. Applicant's Military Personnel Records. Exhibit C. Letter, AFPC/DPSOR, dated 27 Mar 13. Exhibit D. Letter, SAF/MRBR, dated 6 Apr 13. Exhibit E. Letter, Applicant, dated 5 May 13. Panel Chair 4 5