RECORD OF PROCEEDINGS

IN THE MATTER OF:	DOCKET NUMBER: BC-2020-00023

XXXXXXXXXXXXXX	COUNSEL: NONE	 

  	HEARING REQUESTED: NO

APPLICANT’S REQUEST

Her under honorable conditions (general) discharge be upgraded to a medical retirement or honorable discharge.  

APPLICANT’S CONTENTIONS

A medical board recommended a medical retirement.  

The applicant’s complete submission is at Exhibit A.

STATEMENT OF FACTS

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

On 17 Mar 10, the medical evaluation board (MEB) referred the applicant to the informal physical evaluation board (IPEB) for her condition of asthma.

On 28 Jun 10, the IPEB recommended the applicant be placed on the temporary disability retirement list (TDRL) with a compensable rating of 30 percent for her condition of asthma.  

AF Form 3070A, Record of Nonjudicial Punishment Proceedings (AB thru TSgt), dated 13 Jul 10 shows the applicant received an Article 15 for leaving her place of duty without authority.  Punishment included reduction to the grade of airman basic, forfeiture of $200 pay and 21 days of extra duty.  

AF Form 3070A dated 27 Sep 10, shows the applicant received a second Article 15 for dereliction in the performance of her duties in that she failed to refrain from consuming alcoholic beverages while under the age of 21.  Punishment included forfeiture of $200 pay, 14 days extra duty and a reprimand.  

On 27 Sep 10, the applicant’s commander notified her he was recommending she be discharged with a general discharge for misconduct-minor disciplinary infractions.  Reasons for the discharge recommendation included the applicant’s misconduct for which she received two Articles 15, six letters of reprimand (LOR) and two letters of counseling (LOC). 

On 27 Sep 10, the applicant acknowledged the recommendation for discharge.  

Special Order ACD-03152 dated 29 Sep 10, revoked the applicant’s placement on the TDRL, effective 24 Oct 10.  

On 5 Oct 10, the staff judge advocate found the recommendation for discharge legally sufficient.

On 8 Oct 10, the discharge authority approved the recommendation for discharge and directed the applicant be discharged with a general discharge.     

On 9 Nov 10, the Secretary of the Air Force directed the applicant be discharged by execution of AFI 36-3208, Administrative Separation of Airmen, and the actions under AFI 36-3212, Physical Evaluation for Retention, Retirement and Separation,  be terminated.  The board determined there was no causal relationship between her medical condition and her misconduct and that there was insufficient mitigating factors to disregard the disciplinary action.  

On 24 Nov 10, she was discharged with an under honorable conditions (general) discharge and narrative reason for separation of “Misconduct (Minor Infractions).”  She served 2 years, 3 months and 20 days of active duty service.  

For more information, see the excerpt of the applicant’s record at Exhibit B and the advisory opinions at Exhibits C and D.

AIR FORCE EVALUATION

The BCMR Medical Advisor recommends denial.  The applicant was advised an approved separation action for any reason may be revoked, if there are intervening violations of the Uniform Code of Military Justice (UCMJ) or misconduct sufficient to warrant administrative action.  The applicant’s case was considered by the Secretary of the Air Force Personnel Council (SAFPC), as required, as a dual action case; with the decision to execute the approved administrative discharge. 

The complete advisory is at Exhibit C.  

SAF/MRBP recommends denial.  The applicant has presented no evidence that it would be in the interest of justice to excuse her failure to timely file.  She has also presented no evidence to indicate the determination made regarding the discharge somehow constitutes an error or injustice.

The applicant’s contention there was a medical board recommendation for medical retirement is correct; however, she has presented no evidence the SAFPC decision was arbitrary, capricious or represented an error or injustice.  Because the applicant was simultaneously subject to an administrative discharge while also being eligible for disability processing, the two completed cases were referred to the SAFPC for adjudication as a dual action case.  The applicant faced an approved administrative discharge for misconduct that included two Articles 15, two LOCs and six LORs.  She was also found unfit for her asthma with a compensable disability rating of 30 percent.  Because her condition was not stable, the IPEB recommended she be transferred to the TDRL.  Upon review, SAFPC concluded the administrative discharge for minor disciplinary infractions was the most appropriate basis for the applicant’s discharge.  

The complete advisory opinion is at Exhibit D.

APPLICANT’S REVIEW OF AIR FORCE EVALUATION

The Board sent copies of the advisory opinions to the applicant on 2 Sep 20 for comment (Exhibit E), 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 BCMR Medical Advisor and SAF/MRBP and finds a preponderance of the evidence does not substantiate the applicant’s contentions.  The applicant contends she should be granted a medical discharge or her discharge be upgraded based on the IPEB’s recommendation she be placed on the TDRL for her condition of asthma.  However, the Board concurs with the SAFPC determination the administrative discharge for minor disciplinary infractions was the proper and fitting discharge based on the applicant’s misconduct.  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-2020-00023 in Executive Session on 3 Dec 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, undated.
Exhibit B:	Documentary evidence, including relevant excerpts from official records.
Exhibit C:	Advisory opinion, BCMR Medical Advisor, dated 4 May 20.
Exhibit D: Advisory opinion, SAF/MRBP, dated 27 Jul 20
Exhibit E:	Notification of advisories, SAF/MRBC to applicant, dated 2 Sep 20.

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.