RECORD OF PROCEEDINGS AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS IN THE MATTER OF: DOCKET NUMBER: BC-2014-03627 COUNSEL: HEARING DESIRED: NO APPLICANT REQUESTS THAT: 1. His general (under honorable conditions) discharge be changed to a medical retirement and his rank be restored to the grade of staff sergeant (E-5). 2. He receive an update on the status of his disability claim with the Department of Veterans Affairs (DVA) (Not under the Board’s purview). APPLICANT CONTENDS THAT: He was administratively discharged prior to the finalization of his disability case. He should not have been discharged without his administrative separation package and disability case being forwarded to the Secretary of the Air Force Personnel Council (SAFPC). The applicant’s complete submission, with attachments, is at Exhibit A. STATEMENT OF FACTS: On 14 October 2003, the applicant entered the Regular Air Force. According to AF Form 356, Findings and Recommended Disposition of USAF Physical Evaluation Board, dated 11 March 2013, the Informal Physical Evaluation Board (IPEB) found the applicant unfit and recommended he be permanently retired with a 100 percent disability rating in accordance with Department of Defense guidance for applying the Veterans Administration Schedule for Rating Disabilities (VASRD) for (1) Ischemic Cardiomyopathy, Acute Myocardial Infarction, status post AICD Placement. (2) Chronic Right Leg Deep Vein Thrombosis and (3) Major Depressive Disorder and Alcohol Abuse in Remission. According to the applicant’s AF Form 1180, Action on Physical Evaluation Board Findings and Recommended Disposition, dated 2 April 2013, he agreed with the findings and recommended disposition of the IPEB and waived the right to a Formal PEB. In a memorandum dated 19 August 2013, AFPC/DPFDD requested SAFPC provide a grade determination, based on the applicant’s demotion from the grade of E-5 to E-4. On 17 September 2013, SAFPC determined the applicant did not serve satisfactorily in any higher grade. Via Special Order ACD-03401 dated 18 September 2013, the applicant was relieved from active duty and permanently retired in the grade of E-4, with a 100 percent disability rating, effective 29 December 2013. Via Special Order ACD-00542, Special Order ACD-03401, relating to the applicant’s placement on the permanently disability retired list effective 29 December 2013, was rescinded. On 25 April 2014, the applicant’s 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 Airman. The specific reasons for his action were: Between on or about 15 June 2012 and on or about 6 July 2012, the applicant wrongfully used marijuana. As a result, he received nonjudicial punishment under Article 15, UCMJ, dated 3 August 2012. The applicant’s punishment included reduction from the grade of E-5 to E-4 and a reprimand, and the Article 15 was filed in an Unfavorable Information File. On 26 February 2014, the applicant was convicted at a Special Court-Martial of one charge and two specifications in violation of Article 112a, Uniform Code of Military Justice (UCMJ) Specification 1, between on or about 1 September 2013 and on or about 24 September 2013, by wrongfully using marijuana. Lastly, he violated Specification 2 of Article 112a, UCMJ, on divers occasions between on or about 23 August 2013 and on or about 17 January 2014, by wrongfully using cocaine. Punishment for the aforesaid violations included a reprimand, reduction from the grade of E-4 to E-1, forfeiture of $1,021.00 per month for four months and restriction to the limits of the base for two months. On 25 April 2014, the applicant acknowledged receipt of the discharge notification. On 2 May 2014, the applicant offered a conditional waiver of the rights associated with an administrative discharge board hearing. The waiver was contingent on his receipt of no less than a general (under honorable conditions) discharge. In a memorandum dated 10 July 2014, the discharge authority accepted the applicant’s conditional waiver and directed that he be separated from the Air Force with a general (under honorable conditions) discharge. Probation and Rehabilitation was not offered. On 1 August 2014, the applicant received a general (under honorable conditions) discharge, and was credited with 10 years, 9 months, and 18 days of active service. His narrative reason for separation is “Discharge Misconduct.” His primary specialty was Mental Health Service for 10 years. The remaining relevant facts pertaining to this application are contained in the memoranda prepared by the Air Force offices of primary responsibility (OPR), which are attached at Exhibits C-F and Exhibit I. AIR FORCE EVALUATION: AFPC/DPSOR recommends the applicant's case be sent to SAFPC for a review and determination as to whether or not the applicant should be administratively discharged or medically separated/retired. During the period in question, the applicant was being processed for an administrative discharge and on 1 August 2014, he received a general (under honorable conditions) discharge. According to AFI 36-3208, Administrative Separation of Airmen, a general discharge is appropriate when “significant negative aspects of the airman's conduct or performance of duty outweighs positive aspects of the airman's military record.” The discharge authority determined that the applicant's misconduct in this case clearly outweighed the positive aspects of his service. Therefore, the applicant’s separation code, narrative reason for separation, and service characterization are all correct as indicated on his DD Form 214, Certificate of Release or Discharge from Active Duty. While the applicant was being processed for an administrative discharge, the separation office was unaware that he was also undergoing a medical disability process. Had they been aware of the secondary action, the case would have been treated as a dual action and forwarded to SAFPC to determine whether or not the applicant would be administratively discharged or medically separated/retired. A complete copy of the AFPC/DPSOR evaluation is at Exhibit C. AFPC/DPFD recommends the applicant's disability and administrative case files be forwarded to SAFPC as a dual- action, with a separate request for a grade determination based on his reduction from the grade of E-4 to E-1. The applicant was being processed for disability retirement at the time AFPC/DPFD was notified of the administrative action. Once the administrative action was determined, both the administrative file and the disability file should have been forwarded to SAFPC for a determination as to which action took precedence. Unfortunately, the applicant was administratively separated without benefit of the dual-action process. A complete copy of the AFPC/DPFD evaluation is at Exhibit D. AFLOA/JAJM recommends the applicant's file be sent to SAFPC to determine whether the applicant should be administratively discharged or medically separated/retired. On 8 May 2007, the applicant was offered Non-judicial Punishment (NJP) for violation of Article 92, UCMJ, for providing alcohol to minors. On 14 May 2007, the applicant accepted the NJP and was punished with forfeiture of $941.00 in pay, 25 days of extra duty, and a reprimand. The applicant did not appeal his punishment. The applicant was offered a second NJP on 30 July 2012, for violation of Article 112a, UCMJ, for wrongful use of marijuana. The applicant also accepted this NJP and on 3 August 2012, he was punished with a reduction to the grade of E-4 and a reprimand. The applicant did not appeal his punishment. Finally, on 26 February 2014, the applicant was found guilty at a Special Court-Martial, in accordance with his pleas of one charge and one specification in violation of Article l12a, UCMJ, for wrongful use of marijuana and one additional charge and one specification in violation of Article l12a UCMJ, for wrongful use of cocaine on several occasions. A military judge sentenced the applicant to be reprimanded, to be reduced to the grade of E-1, to forfeit $1,021.00 pay per month for four months, and to be restricted to base for two months. On 19 June 2014, the convening authority approved only so much of the sentence as provided for a reprimand, reduction to the grade of E-1, and forfeitures of $1,021.00 pay per month for four months. On 25 April 2014, the applicant was recommended for an under other than honorable conditions discharge for drug abuse. On 2 May 2014, he waived his right to a board contingent on receiving a general (under honorable conditions) discharge. The applicant's conditional waiver was granted on 10 July 2014. The applicant's separation was in accordance with proper procedures and was found to be legally sufficient. However, his disability evaluation was not complete. A complete copy of the AFLOA/JAJM evaluation is at Exhibit E. SAF/MRBP recommends denial. Following the applicant’s administrative separation for drug abuse under the provisions of AFI 36-3208, AFPC/DPFD informed the applicant that his case had been incorrectly processed. He had not been given dual action consideration even though he had a pending medical retirement under the provisions of AFI 36-3212, Physical Evaluation for Retention, Retirement, and Separation, for Ischemic Cardiomyopathy, Acute Myocardial Infarction, Chronic Right Leg Deep Vein Thrombosis, Major Depressive Disorder and Alcohol Abuse in remission. Correctly processed, dual action decisions for enlisted members are normally made by SAFPC after the case is presented to a panel of officers. Those officers evaluate the member's medical situation, the facts underlying the administrative discharge, and consider any connection between the two. The panel determines the most appropriate basis for the member's separation: the administrative discharge or the medical discharge. Each case is considered on its own merits. Because each case is individual and the composition of the board varies, predictions of what would have happened had the processing been followed are difficult. To provide a meaningful advisory, on 30 September 2015, SAFPC completed a retrospective dual-action review of this case. A legal advisor explained the administrative discharge history and a medical advisor explained the medical separation history to the Council. The vote was 3- 2, to administratively discharge the applicant for drug abuse. That decision would have terminated the action under AFI 36- 3212 and the applicant would have been discharged administratively with a general (under honorable conditions) service characterization. A complete copy of the SAF/MRBP evaluation is at Exhibit F. APPLICANT'S REVIEW OF AIR FORCE EVALUATION: The applicant’s counsel acknowledged receipt of the Air Force evaluation and advised that he and his client had nothing further to submit. Counsel’s complete response is at Exhibit H. ADDITIONAL AIR FORCE EVALUATION: The BCMR Psychiatric Consultant recommends denial and finds the evidence insufficient to warrant the desired change of the record. The applicant has suffered from substance abuse problems preceding his serious medical issues. The applicant completed the Air Force Alcohol and Drug Abuse Prevention and Treatment (ADAPT) in 2007 for alcohol abuse. Three years later he again entered ADAPT for consumption of large quantities of alcohol. The applicant originally made his medical team believe that he completed the program successfully in 2011, but then in 2012, admitted to being untruthful and disclosed that he continued drinking. As his medical conditions became progressively worse, his substance abuse escalated and his urine drug screens detected cocaine and cannabis. Substance abuse has a chronic course and requires life-long treatment. Even if someone is in remission and does not consume alcohol or illicit substances they must continue participating in recovery programs. Unfortunately, an individual who develops drug or alcohol related dependence and then quits, has a higher propensity for relapse, especially during times of increased stress; hence, the need for continuous treatment. The use of multiple substances at once or during the different stages of the disease is also not uncommon. Additionally, there is no difference in the disease based on the substance that one abuses. Subsequently, someone who used to abuse cocaine cannot drink alcohol when they are in remission. The effect that any psychoactive substances have on the brain is responsible for this cross-reactivity. The applicant’s use of cocaine and cannabis in addition to alcohol would be a normal progression of his untreated disease state. Since the applicant was seen by a psychiatrist and psychologist prior to 2012 and the fact that he was a mental health technician for many years, he had a great deal of knowledge about all the available resources available to him. However, despite severe depression and anxiety reported by the applicant, it appears that he did not receive any mental health or substance abuse treatment between 2012 and 2014. It is possible he was not interested in any interventions and decided that he would take charge of his own treatment by medicating with alcohol and illegal substances. In this case, not only was the applicant’s depression and anxiety not treated it was worsened by his use of alcohol, cannabis, and cocaine. It is doubtful that antidepressants prescribed by his primary care physician would make any difference in this situation. The Board may consider an upgrade of discharge and a change in reason for discharge, based solely upon clemency. However, there is insufficient evidence to warrant the desired change of the applicant’s record on the merits. A complete copy of the BCMR Psychiatric Consultant’s evaluation is at Exhibit I. APPLICANT'S REVIEW OF ADDITIONAL AIR FORCE EVALUATION: On 29 February 2016, a copy of the BCMR Psychiatric Consultant’s evaluation was forwarded to the applicant for review and comment within 30 days (Exhibit J). 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 timely filed. 3. Insufficient relevant evidence has been presented to demonstrate the existence of an error or injustice. We note the applicant was improperly separated from active duty in 2014 and should have been given dual action consideration. However, after reviewing all the evidence in this case, we do not find that it supports a determination that the applicant should be medically retired or that his grade should be restored. Therefore, we agree with the opinions and recommendations of the BCMR Psychiatric Consultant and SAF/MRBP and adopt their rationale as the basis for our conclusion the applicant has not been the victim of an error or injustice. Regarding the applicant’s request for the status of his disability claim, the Board is only empowered to correct records, as such the applicant should contact the DVA for the status of his claim. In view of the above, we find no basis to recommend granting any of the relief sought in this application. 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-2014-03627 in Executive Session on 21 January 2016 and 8 April 2016, under the provisions of AFI 36-2603: , Panel Chair , Member , Member Due to the unavailability of -----, ----- will sign as Acting Panel Chair. The following documentary evidence was considered: Exhibit A. DD Form 149, dated 4 September 2014, w/atchs. Exhibit B. Applicant's Master Personnel Records. Exhibit C. Memorandum, AFPC/DPSOR, dated 24 October 2014. Exhibit D. Memorandum, AFPC/DPFD, dated 11 December 2014. Exhibit E. Memorandum, AFLOA/JAJM, dated 8 June 2015. Exhibit F. Memorandum, SAF/MRBP, undated. Exhibit G. Letter, SAF/MRBR, dated 12 November 2015. Exhibit H. Letter, Counsel, dated 10 December 2015. Exhibit I. Memorandum, BCMR Psychiatric Consultant, dated 26 February 2016. Exhibit J. Letter, AFBCMR, dated, 29 February 2016.