RECORD OF PROCEEDINGS AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS IN THE MATTER OF: DOCKET NUMBER: BC-2013-01439 XXXXXXX COUNSEL: LISA MARIE WINDSOR, ESQ. HEARING DESIRED: YES ________________________________________________________________ APPLICANT REQUESTS THAT: 1. His Under Other than Honorable Conditions (UOTHC) discharge be upgraded to honorable. 2. The Separation Authority, Narrative Reason for Separation, and Separation Code be changed to reflect a permanent medical retirement. ________________________________________________________________ APPLICANT CONTENDS THAT: As a supply sergeant whose professional life is defined in terms of fiscal responsibility and accountability it is unrealistic to think he would suddenly write a string of bad checks, absent severe financial hardship, gambling addiction or drug abuse; none of which were present in this case. Had anyone at the time been able to appreciate his misconduct as a symptom of mental illness, he would have been referred to mental health to receive the help that he needed. As it was, the Air Force took the most expedient and cost effective path to removing him, which was to approve his “Request for Discharge in Lieu of Court-Martial.” This is a common response in cases of misconduct committed while a person is struggling with mental illness; to elect separation instead of a Medical Evaluation Board (MEB). It is safe to say, that this brief period of misconduct was not indicative of his character or an accurate characterization of his military service. For 13 years he served as a model airman and had no disciplinary actions on his record, unfortunately, his high level of performance also masked underlying emotional issues. He was command-directed to mental health in 1979 and was sent again in 1984 for anger management counseling. In 1992, he began to have extreme difficulty in managing his personal finances and engaged in excessive spending. He wrote bad checks to several businesses, and while the checks were all paid off, the Air Force elected to prefer court-martial charges. Subsequent civilian medical records describe his mood during this period as feeling "like Superman" and wanting everything to be perfect. He worked until late at night and into the next day often without sleep and began to engage in reckless behavior. After his discharge, he was the caregiver for his brother, and became his mother's caregiver when his father passed away in 2001. During this time, his mental health deteriorated and in 2004, he was finally diagnosed with Bi-polar Disorder II. Shortly after the death of his mother in 2005, he suffered a heart attack and has been diagnosed with a host of other medical conditions. He has been under the care of a psychiatrist continuously since 2004. His symptoms were briefly exacerbated in Sep 2009 when his wife suddenly died. He continues with counseling, medication and is attempting to cope with daily life. Had the applicant’s situation occurred today, it is likely that his attorney and supervisors would have been more attuned to the possibility of mental illness as an underlying cause of his misconduct. Since so many years have passed since his discharge, it has been difficult to obtain complete records. A request of his military records to the National Personnel Records Center (NPRC) yielded minimal documentation. Requests for records were also made to the Air Force Personnel Center (AFPC). To date, there has been no response. Discharge documents are not contained in his military records and this stands to rebut the presumption of administrative regularity. The Board may decide to take action in the interests of justice and equity to address an error or injustice. The actions taken to discharge him with an UOTHC discharge were unjustly severe given his mitigating circumstances and 13 years of exceptional service. His records as they stand today are insufficient to justify the actions taken and even if the discharge had been warranted at the time, it has served its intended purpose. The UOTHC discharge is not indicative either of his character or of his military service and represents only a brief period of time in an otherwise outstanding military career. In support of his request, the applicant provides a personal statement, copies of his DD Form 214, Certificate of Release or Discharge from Active Duty, EPRs, medical records, and various other documents associated with his request. His complete submission, with attachments, is at Exhibit A. ________________________________________________________________ STATEMENT OF FACTS: On 26 Jan 1993, the applicant was separated from the Air Force under the provisions of AFI 36-3208, Administrative Separation of Airmen. His narrative reason for separation is “Request for Discharge in Lieu of Trial by Court-Martial.” He had 13 years, 6 months and 8 days of active service. The remaining relevant facts pertaining to this application are contained in the letter prepared by the office of the BCMR Medical Consultant at Exhibit E. ________________________________________________________________ AIR FORCE EVALUATION: AFPC/DPSOR recommends denial of the applicant’s request that his UOTHC discharge be upgraded to honorable. DPSOR states that there is insufficient evidence contained in the applicant's military record to confirm the circumstances and facts surrounding his discharge. However, absent this documentation, there is a presumption of regularity in which the applicant was afforded due process and the discharge was consistent with the procedural and substantive requirements of the discharge regulation. The discharge authority approved the request for “Discharge in Lieu of Trial by Court-Martial,” and directed that he be discharged with an UOTHC discharge. The complete DPSOR evaluation is at Exhibit C. The BCMR Medical Consultant recommends denial of the applicant's request for a permanent medical retirement. The Medical Consultant alternatively recommends changing the reason for discharge to Secretarial Authority with an upgrade of discharge characterization to “Honorable” or alternatively offer upgrade to “General.” The Medical Consultant states that there is no factual documentation to support a medical condition that would warrant a medical discharge especially since the diagnosis of a Bi-polar Disorder was made 11 years after separation from the service. The case confronting the Board and the Medical Consultant is to determine if there has been an error or injustice in the applicant’s discharge. If the case was presented before a Discharge Review Board (DRB), the task would be to determine if there was an inequity or impropriety in the applicant’s discharge. The applicant’s medical records identify areas of concern; three months after entry into the military the applicant appeared to be undergoing some psychological issues. This is reinforced five years later with his visits for stress/anger management. The applicant’s performance reports provide possible insight with his inconsistent work profile; possibly not fully within his span of control. Although “getting into trouble” was a culminating factor, the record begs the question of an underlying or co-morbid personality disorder that existed prior to service. All the above-mentioned might help to explain his decision to elect an UOTHC discharge “Request for Discharge in Lieu of Trial by Court-Martial.” Therefore, viewing the case through the lens of the BCMR, there is some suggestion of error [unusual harsh punishment] and an injustice [resultant lifelong UOTHC discharge], albeit, “Request for Discharge in lieu of Trial by Court-Martial,” as opposed to a mental disorder. The Medical Consultant, alone, is at a disadvantage to offer a definitive diagnosis, nevertheless, while the applicant’s eligibility for an alternative review before a DRB has expired, there is sufficient evidence to recommend changing the reason for discharge to Secretarial Authority with an upgrade of discharge characterization to “Honorable” or alternatively offer upgrade to “General.” The Medical Consultant’s same arguments would have been put forth to a DRB. Unfortunately, the applicant has not met the burden of proof of error or injustice that warrants a permanent medical retirement. The complete Medical Consultant’s evaluation is at Exhibit E. ________________________________________________________________ APPLICANT'S REVIEW OF ADDITIONAL AIR FORCE EVALUATION: The advisory opinions rely heavily on the fact of the absence of military and medical records in this case to recommend denial of the applicant’s requested relief, even though it is the responsibility and the requirement of the government to maintain a system of records on every service member. At the time of the applicant’s discharge the NPRC and the AFPC maintained electronic records. There is absolutely no excuse for the government's failure to follow the law by neglecting to file the required documents in the applicant’s military personnel record. To say that this complete failure of recordkeeping on the part of the government does not overcome the presumption of administrative regularity is to hold the enlisted service member responsible for maintaining his or her own system of records, and ensuring on his or her own that the government complies with the law. This is unrealistic given the applicant’s mental condition. His mental condition at the time of his discharge should have been considered as a possible direct cause or mitigating factor in his misconduct, and the outcome of an UOTHC discharge is unreasonably harsh under the circumstances. The severity of his mental illness is well-documented in his medical records, albeit not formally diagnosed until many years after his discharge. Per the Diagnostic and Statistical Manual of Mental Disorders (DSM), the applicant reports while he was in the Air Force periods of irritability and bizarre behavior followed by long periods of functionality are consistent with a diagnosis of Bi- polar Disorder. During the hypomanic phase, a period of mood disturbance and increased energy and activity, it is common for individuals to experience "[e]excessive involvement in activities that have a high potential for painful consequences (e.g., engaging in unrestrained buying sprees, sexual indiscretions, or foolish business investments." This is consistent with his statement that he wrote checks irrationally for things he did not need and engaged in other high risk behavior. Bi-polar Disorder may begin in late adolescence, but the average age of onset is the mid-20s, which would support the contention that he was suffering from Bi-polar Disorder at the time that he committed the misconduct. He understands that the lack of records in his case presents a challenge. However, he asks that the Board not penalize him for the absence of records and arrive at the logical conclusion based on the evidence at hand. The evidence is sufficient to conclude that he was suffering from a mental disease or defect at the time of his discharge. In any disciplinary action involving a service member with a diagnosed mental disease or defect, the government must first determine whether the misconduct was the direct result of the mental illness; if not sufficient to negate guilt, then whether the mental disease or defect was a mitigating factor in the offense. The applicant contends that his uncharacteristic behavior in writing bad checks was the direct result of his then undiagnosed Bi-polar Disorder, and he should be granted a permanent medical retirement from the service. At a minimum, however, he requests that the Board follow the recommendation of the Medical Consultant and take his mental condition into consideration as a mitigating factor in reducing the severity of the offense, and grant him an honorable discharge. In further support of the applicant’s request, counsel provides a copy of DSM-V. Counsel’s complete response, with attachments, is at Exhibit G. ________________________________________________________________ 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 to warrant changing his discharge to a medical retirement. We took notice of the applicant's complete submission in judging the merits of the case and do not find that it supports a determination that he should be medically retired. While the applicant’s response to the BCMR Medical Advisor is noted, he has provided no evidence which, in our opinion, successfully refutes the assessment of his case by the BCMR Medical Consultant. Therefore, we agree with the recommendation of the BCMR Medical Advisor and adopt his opinion as our findings in this portion of his case. In view of the above and absence evidence to the contrary we find no basis to favorably consider the applicant’s request. 4. Notwithstanding the above sufficient relevant evidence has been presented to demonstrate the existence of error or injustice warranting a degree of relief. In coming to our determination we reviewed the complete evidence of record, in particular, the advisory prepared by the BCMR Medical Advisor who recommends changing the applicant’s records to show that he was honorably discharge with a narrative reason for separation of Secretarial Authority. Accordingly, we agree with the recommendation of the BCMR Medical Advisor and adopt the rationale expressed as the basis for our decision that the applicant has been the victim of either an error or an injustice. As such, we recommend the applicant’s records be corrected to reflect that his discharge was upgraded to honorable and his narrative reason for his discharge was changed to “Authority of the Secretary to Direct Discharge” with the corresponding separation) code of “KFF.” Therefore, in the interest of justice, we recommend his records be corrected to the extent indicated below. 5. 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. ________________________________________________________________ THE BOARD RECOMMENDS THAT: The pertinent military records of the Department of the Air Force relating to APPLICANT, be corrected to show that at the time of his discharge on 26 Jan 1993, he was honorably discharged under the provisions of AFR 39-10, paragraph 1.2 (Authority of the Secretary to Direct Discharge), with a separation code of KFF and furnished an Honorable Discharge Certificate. ________________________________________________________________ The following members of the Board considered this application in Executive Session on 9 Jan 2014, under the provisions of AFI 36-2603: , Panel Chair , Member , Member All members voted to correct the record as recommended. The following documentary evidence was considered in AFBCMR BC-2013- 01439: Exhibit A. DD Form 149, dated 28 Jan 2013, w/atchs. Exhibit B. Applicant's Master Personnel Records. Exhibit C. Letter, AFPC/DPSOR, dated 14 Jun 2013. Exhibit D. Letter, SAF/MRBR, dated 24 Jun 2013. Exhibit E. Letter, BCMR Medical Consultant, dated 16 Jun 2013. Exhibit F. Letter, SAF/MRBC, dated 18 Jun 2013. Exhibit G. Letter, Counsel, dated 12 Jul 2013, w/atchs. Panel Chair FOR OFFICIAL USE ONLY – PRIVACY ACT OF 1974 8 FOR OFFICIAL USE ONLY – PRIVACY ACT OF 1974