RECORD OF PROCEEDINGS

IN THE MATTER OF:	DOCKET NUMBER: BC-2019-02907

XXXXXXXXXX	COUNSEL: NONE
	
	HEARING REQUESTED: YES

APPLICANT’S REQUEST

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

APPLICANT’S CONTENTIONS

His service in the Air Force was exemplary until he was given an experimental drug for Gastroesophageal Reflux Disease (GERD).  He voluntarily took an experimental drug called Timoperazole, a precursor to Prilosec (proton pump inhibitor).  The drug's side effects included multiple conditions such as irritability, anger, irrational thinking, weight gain and etc.  A Department of Veterans Affairs (DVA) study revealed the drug had a direct correlation to End Stage Renal Disease/Kidney failure and Dementia.  In 2013, he was diagnosed with kidney failure.  A psychologist indicated his temperament and his day-to-day actions were not normal.  Prior to taking the drug, he received several awards.

The applicant’s complete submission is at Exhibit A.

STATEMENT OF FACTS

The applicant is a former Air Force sergeant.

On 30 Dec 75, the applicant entered active duty.  On 9 Apr 76, he was honorably discharged after serving 3 months and 10 days of active duty.  On 25 Jan 77, the applicant entered another period of active duty.

On 9 Jul 80, the applicant submitted a request for separation to alleviate violations or potential violations of ethical standards of conduct and conflicts of interest due to his relationship with a privately held corporation.

On 10 Oct 80, the applicant requested to be discharged under the provisions of AFM 39-12, paragraph 2-82, for the good of the service.  The applicant acknowledged that he understood if his request was approved it could result in him receiving an under other than honorable conditions discharge.  
On 16 Oct 80, the commander recommended the applicant’s request for discharge in lieu of court-martial for wrongfully wearing the Airman’s Medal ribbon and making a false official statement be approved.  The commander stated the applicant’s duty performance and character of service before the preferral of charges were satisfactory with these exceptions:

On 15 Apr 80 and 11 Jun 80, he received oral reprimands.  On 12 Aug 80, he received a Letter of Reprimand (LOR) for unsatisfactory progress in Weight Control Program.

On 2 Jul 80, he received another LOR for exercising extremely poor judgement in matters of personal integrity (made false and misleading statements when he requested a day of leave.) 

The unit commander nonrecommended the applicant for promotion consideration to the grade of staff sergeant during Cycle 81B5.

On 21 Oct 80, the base staff judge advocate recommended the commander approve the request for discharge in lieu of court-martial and forward it to the 15th Air Force commander for final action. 

On 23 Oct 80, the commander recommended the 15th Air Force commander approve the applicant’s request for discharge for the good of the service.  

On 5 Nov 80, the 15th Air Force staff judge advocate determined the discharge action was legally sufficient and recommended the applicant’s request for discharge be approved without probation and rehabilitation and he be issued a general discharge.

On 6 Nov 80, the discharge authority approved the applicant’s request with a general (under honorable conditions) discharge.

On 10 Nov 80, the applicant received a general (under honorable conditions) discharge with a narrative reason for separation of “Request for Discharge for the Good of the Service.”  He served 3 years, 9 months and 16 days of active duty.

On 14 Aug 18, the Discharge Review Board reviewed the applicant’s request to upgrade his discharge and concluded no change was warranted.

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

POST-SERVICE INFORMATION

On 3 Jul 19, the Board sent the applicant a standard request for post-service information.  This letter informed the applicant that a Federal Bureau of Investigation (FBI) background check, available for under $20 from the FBI public website, would assist the Board in evaluating his case. On 20 Jul 19, the applicant provided a personal statement regarding an experimental drug and its consequences.  The applicant recalls an incident where he helped a family stay in their home.  In 1990, he volunteered as a coordinator for the Bureau of Land Management.  He was nominated for the Public Lands Award in 1990 and was one of nine to receive this award.  He hopes his time in the Air Force would be ample enough proof that he worked honorably for the first part of his time in the Air Force and the last part was dictated by the effects of a drug.  Although the applicant did reply to the request for post-service information (Exhibit D), his response did not include an FBI background check or other criminal history data.

APPLICABLE AUTHORITY

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.

Under Other than Honorable Conditions.  When basing the reason for separation on a pattern of behavior or one or more acts or omissions that constitute a significant departure from the conduct expected of airmen.  The member must have an opportunity for a hearing by an administrative discharge board or request discharge in lieu of trail by court-martial.  Examples of such behavior, acts, or omissions include, but are not limited to:

•	The use of force or violence to produce serious bodily injury or death.

•	Abuse of a special position of trust.

•	Disregard by a superior of customary superior - subordinate relationships.

•	Acts or omissions that endanger the security of the United States. 

•	Acts or omissions that endanger the health and welfare of other members of the Air Force.

•	Deliberate acts or omissions that seriously endanger the health and safety of other persons.

•	Rape, sexual assault, aggravated sexual contact, abusive sexual contact, rape of a child, sexual assault of a child, sexual abuse of a child, forcible sodomy and attempts to commit these offenses.

On 3 Sep 14, the Secretary of Defense issued a memorandum providing guidance to the Military Department Boards for Correction of Military/Naval Records as they carefully consider each petition regarding discharge upgrade requests by veterans claiming PTSD.  In addition, time limits to reconsider decisions will be liberally waived for applications covered by this guidance.

On 25 Aug 17, the Under Secretary of Defense for Personnel and Readiness (USD P&R) issued clarifying guidance to Discharge Review Boards and Boards for Correction of Military/Naval Records considering requests by veterans for modification of their discharges due in whole or in part to mental health conditions [PTSD, Traumatic Brain Injury (TBI), sexual assault, or sexual harassment].  Liberal consideration will be given to veterans petitioning for discharge relief when the application for relief is based in whole or in part on the aforementioned conditions.  Currently, service members diagnosed with mental health conditions receive heightened screening to ensure the causal relationship of possible symptoms and discharge basis is fully considered, and characterization of service is appropriate.  Veterans discharged under prior procedures, or before verifiable diagnosis, may not have suffered an error because the separation authority was unaware of their condition or experience at the time of discharge.  However, when compared to similarly situated individuals under current standards, they may be the victim of injustice because commanders fully informed of such conditions and causal relationships today may opt for a less prejudicial discharge to ensure the veteran retains certain benefits, such as medical care.

Liberal consideration does not mandate an upgrade.  Relief may be appropriate, however, for minor misconduct commonly associated with the aforementioned mental health conditions and some significant misconduct sufficiently justified or outweighed by the facts and circumstances.  

On 25 Jul 18, the USD P&R issued further guidance with the intent to set clear standards.  Copies of the Board guidance memoranda are at Exhibit E.

AIR FORCE EVALUATION

The Psychiatric Consultant finds insufficient evidence to warrant the desired change of the record.  The applicant contends he was taking a medication, Timoperazole for GERD.  There were no labs or medication notes done at a military facility or any medical notes done anywhere that stipulated he was taking Timoperazole for GERD until just before his discharge.  If in fact he was taking this medication, the literature indicated that side effects would only occur after a prolonged period of taking this medication.  Secondly, there was only a ‘tentative’ association between long-term use and dementia.  Consequently, since he had no notes indicating that he had dementia, the applicant was not experiencing a side effect to Timoperazole.  Finally, the applicant purposefully resigned his position in his company so that there would appear to be a conflict of interest when his company submitted a bid on a government contract [sic]. The applicant in his governmental position had access to the completed analysis located in a locked drawer to which the applicant had a key.  This preconceived plan to procure a government contract nullified Liberal Consideration as an option. In actuality as the staff judge advocate noted, the applicant received the benefit of his earlier excellent performance when he was given a general discharge rather than an under other than honorable conditions discharge. 

The complete advisory opinion is at Exhibit E.

The BCMR Medical Advisor states neither the evidence nor the applicant’s rationale adequately supports the requested action.  The applicant states he was a volunteer in a trial of oral proton pump inhibitor medication to treat his GERD.  After his discharge from the Air Force in 1980, he continued to use medication to treat his GERD condition.  The applicant reported the development of chronic kidney disease that progressed to renal failure (diagnosed in 2013) and subsequent renal transplant.  He believes the sequence of medical events is a direct result of treatment with the experimental proton pump inhibitor medication that was ingested while on active duty.  The article provided shows an increased frequency of renal disease in those who use proton pump inhibitors.  It is difficult to make the correlation with the applicant.  The uncertainties are whether he used the GERD medication as frequently as stated and for the duration (years) stated.  The available evidence does not substantiate that the treatment of the applicant’s GERD with a trial proton pump inhibitor medication while on activity duty contributed to his decline in kidney function.  Nor does the evidence give clear and convincing substantiating of how or why the use of the proton pump inhibitor warrants a change in his characterization of service.  Furthermore, the available evidence suggests there was no unfitting medical conditions to warrant a medical discharge and the “under honorable conditions” was in keeping with the applicable guidance or separation authority that was in effect at the time of separation.

The complete advisory opinion is at Exhibit F.

APPLICANT’S REVIEW OF AIR FORCE EVALUATION

The Board sent a copy of the advisory opinion to the applicant on 30 Oct 19 for comment (Exhibit G), and the applicant replied on 30 Nov 19.  In response, the applicant contends the drugs he was administered for his GERD is the root cause.  He researched proton pump inhibitors and can only conclude that his mental and physical condition was adversely affected by proton pump inhibitors use.  He admits that he illegally wore the Airman’s Medal and has no idea why.  He found it to be prescription drug related.  The applicant also discussed the LORs he received and his “supposed” involvement in the government bidding process.  The applicant also states the advisor failed to acknowledge a 2016 study performed by the St Louis Veterans Hospital or to confirm that kidney failure is called the ‘silent killer” for a reason.  He received letters of commendation, awards, and is proud of his achievements but the type of discharge he received darkens those achievements and nullifies their importance.

The applicant’s complete response is at Exhibit H.

ADDITIONAL AIR FORCE EVALUATION

The Psychiatric Consultant’s advisory dated 23 Aug 20, at Exhibit E, was not approved for release.  As such, a corrected advisory opinion was prepared and is summarized below:

The Psychological Advisor finds insufficient evidence to support the applicant’s request for an upgrade of his discharge to honorable.  The applicant contends he was administered a trial medication by his Air Force providers to treat his GERD and the side effects of the medication caused a change in his behaviors.  A review of available records found no evidence to substantiate his claims.  There are no records of any mental health treatment or evaluation the applicant received while he was in service and the applicant did not submit any of his service treatment records for review.  The scientific literature proclaims the side effects of Timoperazole occurs when taken after a prolonged period of time and no medical records are available to indicate when he started taking the medication.  The applicant reported he was diagnosed with kidney failure in 2013; 33 years post discharge, and received a kidney transplant in 2018.  Several years and decades have passed between his time of discharge to his diagnosis that it is difficult to determine exactly the long lasting effect the medication had on his mental health and other ailments.  There is no evidence he had dementia or dementia like symptoms during his time in service that interfered with his ability to perform his military duties.  There is no evidence that his depression, sleep issues, or other mental health condition caused him to receive the LOR. 

Based on the applicant’s consistent denial of the misconduct through the years, the steps he took to recuse himself from the situation and the rationale that he was able to articulate well for his request for separation, it does not appear that his mental health condition mitigated the alleged misconduct or impacted his behaviors or decisions at the time.  The applicant reported having anxiety due to his discharge, which is a common reaction to changes in one’s life and stressors that may accompany the transition that many individuals in similar situations may experience.  However, it has no bearing on his misconduct or decision for separation as his anxiety was the result of his discharge process. 

Furthermore, it was reported that his depression and sleep problems were “mostly due to personal problems.”  These “personal problems” were vague and may not have any nexus to his military duties.  The Psychological Advisor applied liberal consideration and noted there was no evidence of any mental conditions or behavioral changes caused by the medication in his records that may mitigate or excuse his behaviors.  With the exception of his weight issues, his mental health condition was not found to excuse or mitigate his discharge from service.  Since his mental health condition does not mitigate almost all of his misconduct, his mental health condition or experience does not outweigh the discharge. 

The complete advisory opinion is at Exhibit I.

The Board sent a copy of the additional advisory opinion to the applicant on 6 Apr 20 for comment (Exhibit J), and the applicant replied on 18 Apr 20.  In response, the applicant contends the advisory is lacking in its completeness and in order to be a fair and impartial report it must include the positive attributes of his time and service.  The applicant contends that there was no credence about him single-handedly operating the training management function at Barksdale as his service went beyond the expectations of the Air Force or what was expected of a typical airman.  He also discussed some of his other accomplishments.  The applicant states it has been medically established that there is a direct correlation of him taking an experimental (under human trials) drug and the mental issues he faced once he started taking the drug.  In his mind, he was all right but it was obvious to those close to him that he was not.  He did not report any issues to the Air Force medical personnel, as he did not think anything was wrong.  He requests his positive accomplishments along with the doctor's report regarding the side effects proton pump inhibitors have on the mental and physical state of a human be included. 

FINDINGS AND CONCLUSION

1.  The application is timely.  Given the requirement for passage of time, all clemency requests are technically untimely.  However, it would be illogical to deny a clemency application as untimely, since the Board typically looks for over 15 years of good conduct post-service.  Therefore, the Board declines to assert the three-year limitations period established by 10 U.S.C. § 1552(b).

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 BCMR’s Psychological and Medical Advisors and finds a preponderance of the evidence does not substantiate the applicant’s request to upgrade his discharge.  Additionally, the Board did not find the applicant had a mental health condition during his military service that should be considered as a mitigating factor for his misconduct.  In the interest of justice, the Board considered upgrading the discharge based on clemency; however, given the evidence presented, and in the absence of post-service information /criminal history, the Board finds no basis to do so.  Finally, the Board is satisfied that the application of liberal consideration does not warrant any relief.  Therefore, the Board recommends against correcting the applicant’s records.  

4.  The applicant has not shown a personal appearance, with or without counsel, would materially add to the Board’s understanding of the issues involved.

RECOMMENDATION

The Board recommends informing the applicant the evidence did not demonstrate material error or injustice, 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-2019-02907 in Executive Session on 20 May 20:

, 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 May 19.
Exhibit B:	Documentary evidence, including relevant excerpts from official records.
Exhibit C:	Notification of Liberal Consideration Policy, w/atchs, dated 3 Jul 19.
Exhibit D:	Letter, Applicant dated 20 Jul 19.
Exhibit E:	Advisory opinion, Psychiatric Consultant, dated 23 Aug 19.
Exhibit F:	Advisory opinion, Medical Advisor, dated 16 Oct 19.
Exhibit G:	Notification of advisory, SAF/MRBC to applicant, dated 30 Oct 19.
Exhibit H: Applicant’s response, dated 30 Nov 19.
Exhibit I:	Additional Advisory opinion, Psychological Advisor, dated 3 Apr 20.
Exhibit J:	Notification of advisory, SAF/MRBC to applicant, dated 6 Apr 20.
Exhibit K: Applicant’s response, dated 18 Apr 20.

Taken together with all Exhibits, this document constitutes the true and complete Record of Proceedings pertaining to Docket Number BC-2019-02907, as required by AFI 36-2603, paragraph 4.11.9.