ADDENDUM TO RECORD OF PROCEEDINGS

IN THE MATTER OF:	DOCKET NUMBER: BC-2014-02114-3

	COUNSEL: NONE	 

 	HEARING: YES	 

APPLICANT REQUESTS THAT:

The Board reconsider his requests for the following:

	His bad conduct discharge (BCD) be upgraded to honorable or general.

	His grade of technical sergeant (TSgt, E-6) be restored and he be promoted to master sergeant (MSgt, E-7) and senior master sergeant (SMSgt, E-8).  

	He be medically retired with a compensable disability rating of 30 percent.

RESUME OF THE CASE:

On 12 Oct 94, he was discharged with a BCD.  He served 13 years, 7 months and 20 days of active duty service.  

Per General Court-Martial Order, Number 2, dated 23 Nov 92, the applicant was found guilty of committing an indecent act upon the body of a female under 16 years of age, not his wife.  He was sentenced to 3 years confinement, reduction to airman basic (AB, E-1) and a BCD.   

On 7 Apr and 15 Oct 15, the Board considered and partially granted the applicant’s initial application.  The Board adopted the recommendation of AFPC/DPSOR that the applicant served honorably during a prior enlistment and recommended his DD Form 214, Certificate of Release or Discharge from Active Duty,  be amended to show “Continuous Honorable Active Service from 2 Aug 79 until 3 Mar 88.”  However, the Board denied the remaining requests.  The Board noted the comments of the BCMR Medical and Mental Health Consultants that although his acts, albeit described under the diagnosis of paraphilia, constituted misconduct and he was not in a state of mind to mitigate his actions.  Additionally, DODI 1332.38, Physical Disability, Nov 96, did not include paraphilia as a condition constituting a ratable condition under the Disability Evaluation System (DES).  Moreover, the Board found no evidence to indicate his 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 UCMJ.  Based on the absence of any post service information; the Board found no reason to upgrade the discharge based on clemency.    

On 7 Nov 17, the Board reconsidered the applicant’s request for upgrade of his BCD.    He contended the BCMR Mental Health and Medical Consultants’ advisory opinions were not made available to him in a timely manner and his due process rights were violated.  He also questioned whether the mental health advisory was written by a psychiatrist, as required.  The Board found no evidence his due process rights were violated and again denied his application.    

In a new DD Form 149, Application for Correction of Military Records, dated 10 Feb 18, he requests clemency.  He was suffering from a severe mental disease with cognitive distortions at the time he committed the offenses.  He received positive notification from the VA that his service from 2 Aug 79 thru 3 Mar 88 was deemed honorable and he immediately requested to see a psychiatrist for continued treatment.        

He has not had any involvement with law enforcement other than a minor traffic violation since his release from confinement in Mar 94 and provides a FBI background report and Sampson County, NC criminal background check.  He remains married to the same woman he married while in confinement in 1993.  They are homeowners and he is a gainfully employed tax-paying citizen.  He voluntary entered himself into psychotherapy through the VA when the BCMR granted his honorable period of service.  He continues to live with his severe mental disease, diagnosed while on active duty at an Air Force sanity board by a board certified psychiatrist.  Through the use of psychotropic drugs, psychotherapy and family support, he remains steadfast in his efforts to prevent any further occurrence of the behavior that devastated his life and career.  The BCMR has also not addressed his contentions his due process rights were violated.    

For an accounting of the applicant’s requests and the rationale of the earlier decisions see the Addendum to the Record of Proceedings at Exhibit S, with Exhibits.   

The applicant’s complete submission is at Exhibit T.

THE BOARD CONCLUDES THAT:

After reviewing all Exhibits, the Board remains unconvinced the evidence presented demonstrates an error or injustice and therefore finds no basis to recommend granting the requested relief.  While the applicant contends his due process rights were violated, he has not provided any evidence to substantiate this to be the case.   As pointed out in his initial case, the applicant’s condition was not a ratable or compensable condition at the time of his discharge.  Furthermore, we do not find it as a mitigating factor for his serious misconduct.  In view of this, we find no basis to grant any of the requested relief.  The Board is pleased the applicant is receiving treatment from the VA, is gainfully employed and has not been arrested since his release from confinement.  However, we do not find this information sufficient to warrant granting clemency at this time.  Therefore, the Board recommends against correcting the applicant’s records.

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 the Board’s understanding of the issues involved.

THE BOARD RECOMMENDS THAT:

The applicant be informed the evidence did not demonstrate material error or injustice, and the application will only be reconsidered upon receipt of relevant evidence not already considered by the Board.

The application was adjudicated without a personal appearance.

CERTIFICATION:

The following quorum of the Board, as defined in Air Force Instruction (AFI) 36-2603, Air Force Board for Correction of Military Records (AFBCMR), paragraph 1.5, considered Docket Number BC-2014-02114-3 in Executive Session on 24 Jul 18.

                               , Panel Chair
                               , Panel Member
                               , Panel Member

All members voted not to correct the record.  The panel considered the following:

                   Exhibit S:	Record of Proceedings, w/ Exhibits K thru R, dated 
                   Exhibit T: Application, DD Form 149, w/atchs, dated 10 Feb 18.

Taken together with all Exhibits, this document constitutes the true and complete Record of Proceedings required by AFI 36-2603, paragraph 4.11.9.