RECORD OF PROCEEDINGS

IN THE MATTER OF:	DOCKET NUMBER: BC-2017-04789

xxxxxxxxxxx	COUNSEL: NONE

	HEARING REQUESTED: NO

APPLICANT’S REQUEST

His general (under honorable conditions) discharge be upgraded to honorable.

APPLICANT’S CONTENTIONS

He was never given a proper and fair medical evaluation board (MEB) hearing regarding any evidence of a disability existing prior to service.  His left foot injury occurred during a temporary duty (TDY) assignment to XXXXXX AFB, XXXX in Nov 61 but the Air Force discharged him for his injury based on a Existed Prior to Service (EPTS) diagnosis.  

The applicant’s complete submission is at Exhibit A.

STATEMENT OF FACTS

The applicant is a former Air Force airman basic (E-1).  

Dated 28 Mar 62, Disciplinary Punishment Under Article 15 memorandum indicates the applicant received non-judicial punishment (NJP), Article 15 for being absent without leave (AWOL) from 20 -24 Mar 62.  For this misconduct, he received a reduction in grade to airman third class effective 28 Mar 62.

Dated 9 Apr 62, Airman Control Roster memorandum indicates the applicant was placed on a control roster for misconduct.  Further stating, if he failed to correct his deficiencies within three months, it may result in demotion, reclassification, separation, or other disposition under appropriate directives.

Dated 5 Jun 62, Disciplinary Punishment Under Article 15 memorandum indicates the applicant received NJP, Article 15 for disorderly conduct and leaving his place of duty without proper authority.  For this misconduct, he received a reduction in grade to airman basic effective 5 Jun 62.

On 6 Aug 62, the applicant requested a discharge for a physical disability stating he had been notified, based on preliminary findings, he was considered unfit for retention in the military by reason of a physical disability which appeared to be not incident to or aggravated by his military service.  He indicated he did not elect to have this decision considered by the Physical Evaluation Board (PEB).

Dated 9 Aug 62, AF Form 618, Medical Board Report, indicates the applicant was diagnosed with flatfoot, grade III, which was found to have EPTS, and recommended immediate discharge.

On 16 Aug 62, the applicant’s commander recommended the applicant be discharged from the Air Force and his service be characterized as general, as evidenced by a letter of indebtedness, check fraud, placement on the control roster, and two Article 15s.

On 17 Aug 62, the applicant received an under honorable conditions (general) discharge per authority of AFM 35-4, Physical Evaluation for Retention, Retirement, and Separation, chapter 9, military separation code SDN 277 (EPTS), with a narrative reason for separation of “Physical Disability.”

On 23 Oct 18, the case was closed as non-viable due to no FBI report received (Exhibit I).

On 21 Apr 21, the case was reopened based on the applicant’s response clarifying his original request.

For more information, see the excerpt of the applicant’s record at Exhibit B and the advisories at Exhibits D, E, F and J.

POST-SERVICE INFORMATION

On 19 Jan 17, the Board sent the applicant a request for post-service information, including a standard criminal history report from the Federal Bureau of Investigation (FBI); however, he has not replied.

APPLICABLE AUTHORITY/GUIDANCE

On 25 Jul 18, the Under Secretary of Defense issued supplemental guidance to military corrections boards in determining whether relief is warranted based on equity, injustice, or clemency.  These standards authorize the board to grant relief in order to ensure fundamental fairness.  Clemency refers to relief specifically granted from a criminal sentence and is a part of the broad authority Boards have to ensure fundamental fairness.  This guidance applies to more than clemency from sentencing in a court-martial; it also applies to any other corrections, including changes in a discharge, which may be warranted on equity or relief from injustice grounds.  This guidance does not mandate relief, but rather provides standards and principles to guide Boards in application of their equitable relief authority.  Each case will be assessed on its own merits.  The relative weight of each principle and whether the principle supports relief in a particular case, are within the sound discretion of each Board.  In determining whether to grant relief on the basis of equity, an injustice, or clemency grounds, the Board should refer to the supplemental guidance, paragraphs 6 and 7.

On 21 Apr 21, the Board staff provided the applicant a copy of the consolidated clarifying guidance (Exhibit I).

According to AFI 36-3208, Administrative Separation of Airmen, incorporating changes through 8 Jun 17, paragraph 1.18, the types of service characterization are as follows: 

Honorable.  The quality of the airman’s service generally has met Air Force standards of acceptable conduct and performance of duty or when a member's service is otherwise so meritorious that any other characterization would be inappropriate. 

Under Honorable Conditions (General).  If an airman’s service has been honest and faithful, this characterization is warranted when significant negative aspects of the airman's conduct or performance of duty outweigh positive aspects of the airman's military record.

AIR FORCE EVALUATION

AFPC/DP2STM recommends denying the applicant’s request for a discharge upgrade.  In the applicant’s brief military career, he received an Article 15 action for being AWOL, was reduced in rank for misconduct, received a letter of indebtedness, produced a dishonored check, and was placed on control roster and further extended on the control roster for financial irresponsibility.  Based on review of the applicant’s request and the military human resource records (MHRR), there is no evidence of an error or injustice with the discharge processing.  

The complete advisory opinion is at Exhibit D.

AFPC/DP2SSM recommends denying the applicant’s request for a discharge upgrade.  Based on the documentation provided by the applicant and analysis of the facts, there is no evidence of an error or injustice.  The applicant did not provide sufficient evidence to justify he was not AWOL between 20 Mar 62 to 24 Mar 62 and did not provide evidence that the Article 15s were issued fraudulently or out of retaliation.  Based on the supporting documentation provided in the applicant’s MHRR, the guidance in effect in 1962 for processing AWOL duty status changes and processing Article 15s was done correctly, as the applicant was in fact AWOL from 20 to 24 Mar 62.  

The complete advisory opinion is at Exhibit E.

AFLOA/JAJM recommends denying the applicant’s requested relief predicated on alleged legal error or injustice in applicant’s NJP actions.  The NJP actions were within the commander’s authority, as were the specific punishments imposed.  A commander considering a case for disposition under Article 15, UCMJ, exercises discretion in evaluating a case, both as to whether punishment is warranted and, if so, the nature and extent of the punishment.  The exercise of that discretion should generally not be reversed or otherwise changed on appeal by the Board absent good cause.   Before deciding to impose NJP, the commander would have been aware that certain non-punitive disciplinary measures, including counseling and reprimands, were available.  The commander, at the time of the NJP actions, had the best opportunity to evaluate the evidence and to determine what action would best maintain good order and discipline and promote a positive behavior change in the applicant.   The commander’s ultimate decision to impose NJP was based on the evidence of the case and his punishment decision was well within the limits of his authority and discretion.  Whether the applicant’s time lost, service characterization upon discharge, or medical records should be modified as a matter of clemency, is within the purview of the BCMR Board.  

The complete advisory opinion is at Exhibit F.

The AFBCMR Medical Advisor recommends denying the application finding his pes planus EPTS and were not caused by, nor aggravated beyond the natural progression of the condition by his military service.  The applicant contends that his foot condition did not EPTS and that he was discharged without a fair MEB.  A review of his medical record indicates clearly that when he enlisted in 1960 he had 3rd degree pes planus.  This foot condition therefore, EPTS.  People with flat feet are more prone to develop foot pain with prolonged standing.  His symptoms of foot pain are not inconsistent with the diagnosis of pes planus with which he entered military service.  While the applicant attests in a letter to the Board that his left foot was injured in 1961 while TDY to XXXX, there is, aside from his letter to the board, no mention of such an injury in his medical record, nor is there any third party evidence that corroborates this in his record.  Hence, there is no evidence that his pes planus was a result of or aggravated beyond the natural progression of this condition as a result of his military service.

The complete advisory opinion is at Exhibit J.

APPLICANT’S REVIEW OF AIR FORCE EVALUATION

The Board sent a copy of the advisory opinions to the applicant on 31 Jul 18 and 13 Oct 21 for comment (Exhibits G and K), but has received no response.

FINDINGS AND CONCLUSION

1.  The application was not timely filed.

2.  The applicant exhausted all available non-judicial relief before applying to the Board.

3.  After reviewing all Exhibits, the Board concludes the applicant is not the victim of an error or injustice.  The Board concurs with the rationale and recommendations of the offices of primary responsibility and finds a preponderance of the evidence does not substantiate the applicant’s contentions.  The Board also notes the applicant did not file the application within three years of discovering the alleged error or injustice, as required by Section 1552 of Title 10, United States Code, and Air Force Instruction 36-2603, Air Force Board for Correction of Military Records (AFBCMR).  The Board does not find it in the interest of justice to waive the three-year filing requirement.  Therefore, the Board finds the application untimely and recommends against correcting the applicant’s records.

RECOMMENDATION

The Board recommends informing the applicant the application was not timely filed; it would not be in the interest of justice to excuse the delay; and the Board will reconsider the application only upon receipt of relevant evidence not already presented.

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-2017-04789 in Executive Session on 15 Dec 21:

, Panel Chair
, Panel Member
, Panel Member

All members voted against correcting the record.  The panel considered the following:

Exhibit A:	Application, DD Form 149, w/atchs, dated 17 Aug 17 and 10 Oct 20.
Exhibit B:	Documentary evidence, including relevant excerpts from official records.
Exhibit C: Letter to Applicant, SAF/MRBC (FBI Request), dated 19 Jan 17.
Exhibit D:	Advisory opinion, AFPC/DP2STM, dated 15 May 18.
Exhibit E: Advisory opinion, AFPC/DP2SSM, dated 21 Jun 18.
Exhibit F: Advisory opinion, AFLOA/JAJM, dated 19 Jul 18.
Exhibit G:	Notification of advisory, SAF/MRBC to applicant, dated 31 Jul 18.
Exhibit H: Letter to Applicant, SAF/MRBC (Non-viable – case closed), dated 23 Oct 18.
Exhibit I: Letter to Applicant, SAF/MRBC (Clemency), dated 21 Apr 21.
Exhibit J: Advisory opinion, BCMR Medical Advisor, dated 6 Oct 21.
Exhibit K: Notification of advisory, SAF/MRBC to applicant, dated 13 Oct 21.

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