RECORD OF PROCEEDINGS AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS IN THE MATTER OF: DOCKET NUMBER: BC-2013-05889 COUNSEL: NONE HEARING DESIRED: YES APPLICANT REQUESTS THAT: His Bad Conduct Discharge (BCD) be upgraded, his highest rank restored, and all ribbons and medals restored. APPLICANT CONTENDS THAT: The behavior that resulted in his court martial was influenced by undiagnosed and untreated mental illness. The Department of Veterans Affairs (DVA) has recently determined his mental illness was directly related to his military service and has recently awarded him a 100% disability rating. The applicant’s complete submission, with attachments, is at Exhibit A. STATEMENT OF FACTS: The applicant initially entered the Regular Air Force on 20 Jun 80. On 5 Nov 80, the applicant received nonjudicial punishment under Article 15 for possession of marijuana, for which he received forfeiture of pay for two months. On 22 Oct 85, the applicant received nonjudicial punishment under Article 15 for failure to go at the time prescribed to his appointed place of duty, for which he received a suspended reduction in rank and forfeiture of pay for two months. On 23 Apr 86, the applicant was sentenced to BCD, confinement, forfeiture of pay for six months, and reduction in grade to airman basic (E-1), for being found guilty in a special court martial. The specifications were multiple incidents of wrongful possession of marijuana and one specification to conspire to distribute marijuana. This action action was affirmed through Special Court- Martial Order No. 2, dated 29 Dec 86. On 12 Jan 87, the applicant was furnished a BCD for conviction by court-martial (other than desertion), in the grade of airman basic (E-1), and was credited with 2 years, 8 months, and 16 days of active service. On 25 Feb 02, applicant was informed that the Air Force Discharge Review Board (DRB) denied his request to upgrade his discharge. The Board concluded the applicant’s punitive discharge by Special Court Martial was appropriate under the facts and circumstances of the case and there was insufficient basis as an act of clemency for change of discharge. On 20 Jan 15, a request for post-service information was forwarded to the applicant for review and response within 30 days. As of this date no response has been received by this office (Exhibit G). On 10 Mar 15, SecDef Guidance for Correction Boards regarding Post Traumatic Stress Disorder was forwarded to the applicant for review and response within 30 days. As of this date no response has been received by this office (Exhibit I). The remaining relevant facts pertaining to this application are described in the memoranda prepared by the Air Force offices of primary responsibility (OPR), which are included at Exhibits C, D, E, and F. AIR FORCE EVALUATION: AFLOA/JAJM recommends denial, indicating there is no evidence of an error or injustice. While we note the DVA decision review indicates a service connection for bipolar disorder which started during childhood, without the full medical record to review, it is impossible to determine with any accuracy when the applicant knew or should have known about his mental illness. Considering the nature of the misconduct, we are not convinced that even if the applicant submitted evidence of his mental illness during the court martial, the sentence would have been different. Similarly, we do not believe that this mental illness should now serve as a basis for clemency. A complete copy of the AFLOA/JAJM evaluation is at Exhibit C. AFPC/DPSOE recommends denial indicating there is no evidence of an error or injustice to restore the applicant’s rank to the highest grade, which was sergeant (E-4). Although the applicant has recently been diagnosed with a service-related illness, AFPC/DPSOE concurs with AFLOA/JAJM’s recommendation uphold the previous decisions and to not grant the applicant’s request based clemency. A complete copy of the AFPC/DPSOE evaluation is at Exhibit D. AFPC/DPSIDR recommends no action be taken regarding the applicant’s request restore his ribbons and medals. There is no documentation in the applicant's record to indicate any awards or decorations were revoked. The awards and decoration listed on his DD Form 214, dated 12 Jan 87, are accurate and complete. A complete copy of the AFPC/DPSIDR evaluation is at Exhibit E. The AFBCMR Medical Consultant recommends consideration of an upgrade to the applicant’s discharge to General, but not Honorable. No service medical documentation is supplied to demonstrate evaluation or treatment of a mental disorder, and no post-service medical documentation of a mental disorder is supplied; however, the applicant’s behavior was observed to wax and wane, as documented in his performance reports. This is characteristic of a mood disorder, such as bipolar disorder. It is well established in the literature that bipolar disorder may present alongside a co-morbid substance abuse problem. That is not to say that bipolar disorder causes substance abuse, as it is often difficult to determine if drug [use] is causing the symptoms versus the bipolar disorder; as either may display the same signs and symptoms. Nevertheless, previous work with adults has suggested that early-onset bipolar disorder is associated with an elevated risk for substance use disorder. In particular, substance abuse, especially cocaine abuse or dependence, and alcoholism is far more common phenomenon in the population of patient with bipolar affective disorder than in the general population. National Institute of Mental Health Epidemiologic Catchment Area data indicate that bipolar affective disorder is the Axis 1 disorder most likely to be associated with some form of substance abuse or dependence. While an upgrade of the applicant’s discharge to Honorable is not recommended, an Under Other Than Honorable (UOTHC) discharge could fit the applicant's guilty offenses [if limited to marijuana possession with intent to distribute]. The Medical Consultant recommends consideration of an upgrade of discharge to General [under honorable conditions], based upon Clemency so that the applicant can get on with his life and treatment by the DVA. A complete copy of the Medical Consultant’s evaluation is at Exhibit F. APPLICANT'S REVIEW OF AIR FORCE EVALUATION: Copies of the Air Force evaluation(s) were forwarded to the applicant on 23 Jan 15 for review and comment within 30 days (Exhibit E). As of this date, no response has been received by this office. ? 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 regarding the applicant’s request to upgrade his BCD and restore his highest grade served (E-4). We note that this Board is without authority to reverse, set aside, or otherwise expunge a court-martial conviction. Rather, in accordance with Title 10, United States Code, Section 1552(f), actions by this Board are limited to corrections to the record to reflect actions taken by the reviewing officials and action on the sentence of the court-martial for the purpose of clemency. We concur with opinions of the Air Force Offices of Primary Responsibility (OPR) and find no evidence which indicates the applicant’s service characterization, which had its basis in his court-martial conviction and was a part of the sentence of the military court, was improper or that it exceeded the limitations set forth in the Uniform Code of Military Justice (UCMJ). We have considered the applicant’s overall quality of service, the court-martial conviction which precipitated the discharge, and the seriousness of the offenses to which convicted. Further, we note the comments of the AFBCMR Medical Consultant indicating that relief to upgrade the discharge (to General, but not Honorable), based on clemency, should be considered. However, in the absence of any evidence related to the applicant’s post-service activities that would enable us to determine if his accomplishments since his discharge are sufficient to overcome the misconduct for which he was discharged, we find no basis upon which to favorably consider this application. With regards to the applicant’s request to restore his ribbons and medals, we recommend no action be taken as no evidence in the applicant's record indicates any awards or decorations were revoked. The awards and decoration listed on his DD Form 214, dated 12 Jan 87, are accurate and complete. 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 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-2013-05889 in Executive Session on 22 Apr 15 under the provisions of AFI 36-2603: The following documentary evidence was considered: Exhibit A. DD Form 149, dated 19 Dec 13, w/atchs. Exhibit B. Applicant's Master Personnel Records. Exhibit C. Memorandum, AFLOA/JAJM, dated 1 Apr 14. Exhibit D. Memorandum, AFPC/DPSOE, dated 7 Apr 14. Exhibit E. Memorandum, AFPC/DPSIDR, dated 7 Jul 14. Exhibit F. Memorandum, SAF/MRB, dated 7 Jan DD. Exhibit G. Letter, SAF/MRBR, dated 20 Jan 15. Exhibit H. Letter, SAF/MRBR, dated 23 Jan 15. Exhibit I. Letter, SAF/MRBR, dated 10 Mar 15, w/atchs.