. 

AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS 

RECORD OF PROCEEDINGS 

IN THE MATTER OF: 

DOCKET NUMBER: 96-00521 

COUNSEL: 

HEARING DESIRED:  Yes 

K T  2  8 19k!f-- 

APPLICANT REQUESTS THAT: 

He  be  reinstated  to  active  duty  and  given  the  proper  medical 
treatment he was denied; 

He be given an honorable discharge with full retirement. 

APPLICANT CONTENDS THAT: 

After  20  years  of  signs  of  a  problem  that  stemmed  not  from 
allergies but  from anxiety and  stress, the  Air  Force  chose  to 
focus upon  the  results of  stress rather than  the  cause. There 
were  abundantly  clear  and  evident  signs that  should  have  been 
recognized,  probably  were  recognized,  but  were  deliberately 
ignored as it was easier to contend with alleged misconduct than 
to deal with a mental aberration. Throughout his career, his pain 
and  suffering were  dismissed  as  the  results  of  sinus  troubles 
when, in fact, these were the simple answers to complex problems. 
No  one  was  ever  interested  enough  to  correlate  these  physical 
ailments to stress. He  could not  go voluntarily to  the Wilford 
Hall Medical Center  (WHMC) f o r   a 10-day evaluation because of his 
wife's mental  state  and  back  injury.  He  was  never  ordered  to 
undergo a mental health examination and treatment. If he had, the 
results may have been quite different. Instead, he was ordered to 
see  a  psychologist  who  gave  him  a  series  of  three preliminary 
tests and the results were essentially that he had a problem with 
authority but  it  could  not  be  determined what  the  problem  was 
without  further testing. It was at  this point  that his military 
appointed  attorney  told  him  to  disconti'nue  testing  because 
anything he said during these sessions would be used against him 
in a court-martial proceeding. He was advised to not to admit to 
anything and to resist any type of treatment offered. 
He also points out  that he was only 29 days short of  a 20-year 
retirement when he was discharged. He had accumulated 55 days of 
leave  which  was  taken  away  from  him  upon  discharge. This  time 
would  have  easily put  him  over his  20-year mark  for retirement 
purposes.  He  asks  for  forgiveness  and  help  in  getting  the 
treatment he needs. 

h 

I 

I 

I 

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In  support  of  his  appeal,  he  provides  a  personal  statement, 
extensive medical  records, supporting statements, and documents 
presented during his Board of Inquiry  (BOI). He also provides a 
1996 examination by a civilian psychologist, who diagnosed him as 
having latent or borderline schizophrenia  (personality disorder, 
not otherwise specified) which appears to have been exacerbated 
by severe job-related stress. 

Applicant's complete submission is attached at Exhibit A. 

STATEMENT OF FACTS: 

The applicant enlisted in the Regular Air Force on 9 April  1974. 
He received a direct commission into the Biomedical Service Corps 
(BSC) in  the  grade  of  2nd  lieutenant  on  21  January  1978  and 
entered  extended  active  duty  on  22  January  1978.  He  was 
progressively promoted to the grade of major. He performed duties ' 
in  the  medical  administration,  medical  support,  and  medical 
readiness  fields  at  McChord  AFB 
Travis  AFB,  RAF  Little 
Rissington, Bolling AFB, and e A F B .  

An  Air  Force Office of  Special Investigations  (AFOSI) Report of 
Inquiry  (ROI) dated 10 December 1990 indicates that applicant was 
intoxicated  and  for  stealing 
nging  to various  attendees at  a 
of 
ns  at  the 
.  Applicant 
on 

OR) on 4 April 1991. 

An  AFOSI  ROI  dated  17  September  1991  relates  that  an 
investigation  was  initiated  on  12  August  1991  based  on 
information that  the applicant attempted to obstruct justice by 
telling a  enlisted subordinate, who was under investisation. how 
to beat a polygraph examination. 

4 

- 

On 17 January 1992, applicant received a Letter of Admonishment 
for  public  intoxication,  thefts,  and  advising  an  enlisted 
subordinate  how  to  manipulate  the  results  of  a  polygraph 
examination. 
An  Incident/Complaint Report dated 6 April 1992 indicated that on 
5 A ril 1992 applicant allegedly took a belt from the Exchange at 
pocket. The video tape was inconclusive in showing the applicant 
actually putting the belt into his trousers. The suspected stolen 
item was found in applicant's house. Applicant was advised of his 
rights and he requested a lawyer. 

& AFB,  TX,  and  placed  it  into  his  left  front  trouser 

On  23  April  1992,  applicant  was  notified  of  his  commander's 
intent to impose nonjudicial punishment upon him  for stealing a 
belt  on 5 April  1992 and a candy bar on 17 April  1992 from the 

2 

96-0052 1 

I 

AFB  Exchange, 
er consulting with counsel, 

in violation of Article 121. On 2 8   April 
applicant waived his  right 
to a trial by court-martial, and requested a personal appearance. 
He and his counsel  submitted written matters  for consideration. 
On 14 May 1992, he was found guilty by his commander who imposed 
punishment  of  forfeiture of  $1,869 per  month  for  two  months. 
Applicant appealed the punishment, but  the appeal was denied on 
1 3   August 1992. However, on 1 4   September 1992, the punishment was 
suspended and  would  be  remitted  without  further action  if  not 
vacated  before  14  December  1992. The  suspension also  indicated 
that the commander intended to initiate discharge action against 
the  applicant.  The  Article  15  was  filed  in  his  Unfavorable 
Information  File  (UIF)  and  in  his  Officer  Selection  Record. 
Applicant rebutted this action. 

According  to  a 
1992  medical  entry,  applicant  was 
ref erred  by  the 
Hospital  Commander  for  psychiatric 
evaluation.  The  Chief,  Mental  Health,  stated  he  discussed 
applicant's  current  legal  status  and  the  Miranda  warning. 
Applicant  indicated  his  legal  counsel  had  told  him  to  tell 
everything, to  be  truthful, and  to  cooperate.  The  Chief  told 
applicant that  the  information provided would not be  considered 
confidential.  Applicant  denied  having  had  any  psychiatric 
involvement in the past. The Chief stated that applicant did not 
come  across  as  being  depressed  or  present  evidence  of  any 
underlying  thought  disorder.  Diagnosis  was  deferred  pending 
completion of  this  evaluation. In  a  follow-up evaluation dated 
3 1  August 1992, the Mental Health Chief indicated that Applicant 
denied  the  charges  against  him  and  having  any  current 
psychological  problems. No  evidence of  any psychiatric disorder 
was  found.  An  evaluation  dated  4  September  1992  came  to 
essentially  the  same  conclusion.  Applicant  was  referred  for 
further evaluation. 

In a_medical entry dated 8 September 1992, a neuropsychologist at 
Hospital  indicated  that  applicant was  referred by  the 
Psychiatry  Department  for psychological  testing  in  conjunction 
with an investigation connected to the Article 15. Applicant was 
advised  of  his  rights.  The  doctor  found  that,  although 
personality  disorders  were  not  determined  on  the  basis  of 
psychological  testing,  applicant  was  showing  some  signs  of 
passive-aggressive and anti-social traits. Diagnosis was deferred 
pending  further evaluation on the  possibility  of  a personality 
problem.  The  doctor  indicated  applicant  WAS  not  interested  in 
further  treatment  at  this  clinic  and  was  resistant  to  further 
psychological testing until he had talked to his lawyer. 

During  a  follow-up  visit  on  11  September  1992,  applicant 
indicated  he  had  no  tendency  toward  biological  problems  under 
stress  and  wished  to  talk  to  his  lawyer  before  he  would  take 
further  tests.  The  neuropsychologist  stated  that 
the 
determination  of  a  personality  disorder  was  only  done  by 
extensive review of history and record and not by testing alone. 
However, a medical  en-try dated  13  September  1992 reflects  that 

3 

96-0052 1 

the  applicant  never  completed  the  recommended  tests; 
consequently, diagnosis was deferred. 

Legal  review  on  23  September  1992  found  the  case  legally 
sufficient  to  support  initiation  of  discharge  action.  On 
28 September  1992,  the  group  commander  recommended  discharge 
action  be  initiated.  On  5  October  1992,  the  applicant  was 
notified  that discharge action was being  initiating against him 
under AFR  36-2, Chapter 3, ,paragraph 3-7d, for shoplifting, other 
acts  of  theft,  conduct  unbecoming,  and  counseling  an  enlisted 
subordinate  on  methods  to  achieve  a  false  polygraph  result. 
Applicant responded to the Notification on 20 November 1992. 

In a Report of  Medical  History dated  6 October 1992, applicant 
stated  he  was  in  Ilexcellent  health" and  was  on medication  f o r  
allergies. He denied personal or family neurosis or psychosis. 

On 29 December 1992, the Vice  Commander of Air Training Command 
(ATC)  determined  that  there  was  sufficient  evidence  for  the 
applicant to show cause for retention on active duty. 

1 

On 27 and 28 April 1993, a BO1 convened at Sheppard AFB  for the 
following statement of reasons: 

t

h

e

1

 

1. On or about  14 November  1990, he was  drunk  in public  in 

2. On or about  14 November 1990, he  stole items of  personal 
property belonging to various attendees of  a  conferende of  the 
Association of Military Surgeons at the 

3. Between,  on  or  about  3  July  and  29  August  1991,  at 
he advised and counseled an airman, a subordinate 
-AFB, 
he knew to be  the subject of an AFOSI  investigation, on methods 
and  means  to  effect  a  false polygraph  examination which  would 
contravene evidence in an official investigation. 
4. On  or  about  5  April  1992,  the  applicant  stole  a  belt 
5. On or about  1 7   April 1992, he  stole a candy bar valued at 

-e 

valued at $25. 
45 cents. 

The BO1  found the applicant guilty of  the above reasons, except 
for Reason  #4;  determined  that  he  should  not  be  retained; and 
recommended that he be  discharged with a character of  discharge 
of Under Other Than Honorable Conditions  (UOTHC). 

A 13 May 1993 medical entry reflects that applicant was seen for 
further  psychological  testing.  The  neuropsychologist  indicates 
that  applicant  denied  the  charges. Applicant's entering therapy 
to help with his mood, which was described as mildly dysphoric, 
was  discussed.  Diagnosis  was  again  deferred  pending  further 
tests. 

4 

On  15  May  1993,  the  Officer  Performance  Report  (OPR) for  the 
period  16 April  1991 through 15 April  1992 was  referred  to  the 
applicant.  The  OPR  reflects  IIDoes  Not  Meet  Standards"  in  the 

4 

96-0052 1 

categories  of 
Judgment  and 
applicant with 

Leadership  Skills,  Professional  Qualities,  and 
Decisions.  Comments  were  not  received  by  the 
n the required period. 

On 24  June 1993,  applicant was  seen for follow-up psychological 
testing.  The  neuropsychologist  indicated  that  applicant  had  a 
tendency  to  have  problems  dealing  with  stress.  Diagnosis  was 
adjustment disorder with mixed emotional features. Applicant was 
offered  supportive  therapy  but  declined.  No  follow-up  was 
planned. 

Applicant  appealed  the  BO1  findings  and  recommendations  and 
submitted extensive rebuttals, dated 7 and 24 September 1993. On 
4  October  1993,  the  Air  Education  and  Training  Command  (AETC) 
Judge  Advocate  addressed  applicant's  assignment  of  errors 
regarding the BOI. On 1 December 1993, HQ USAF/JAG also reviewed 
the  BO1  and  found  it  legally  sufficient  to  support  its 
recommendation. 
The applicant  was  considered but  not  selected for promotion  to ' 
the grade of  lieutenant colonel by  the CY93A Lieutenant Colonel 
(LAF/JAG/BSC/MSC/NC)  Selection  Board,  which  convened  on 
12 October  1993. The Promotion Recommendation Form  reflected an 
Overall Recommendation of  "DO Not Promote This Board." 
On  7 February  1994,  his  appeal was  duly  considered by  the Air 
Force  Board  of  Review  (AFBR) ,  which  determined  the  applicant 
should not be  retained  on active duty and  recommended khat the 
Secretary  of  the  Air  Force  remove  the  applicant  with  a  UOTHC 
discharge. On  14 February  1994,  the  Secretary of  the Air  Force 
removed  him  from  active  duty  and  directed  a  UOTHC  discharge 
effective 18 February 1994. 

On  18  February  1994,  he  was  discharged  with  a  UOTHC 
characterization of  service under  the  provisions of  AFR  36-12, 
Involuntary Discharge/Pattern of Misconduct. He had  19 years and 
11 months of active duty. 

On  the  same  day,  applicant  filed  a  lawsuit  in  the  Federal 
District  Court  for the Northern  District of  Texas asking  for a 
Temporary  Restraining  Order  (TRO)  to  prevent  his  impending 
discharge  from  the  Air  Force.  He  alleged  he  was  denied  due 
process by  the Air  Force  in  the processing of  his  case by  its 
failure  to  adequately  consider  and  devklop  relevant  facts 
relating to "latent or borderline paranoid schizophrenia, I'  which 
he  stated  caused  his  bizarre  behavior  beginning  in  1990.  He 
alleged that discharging him without a medical retirement or any 
retirement  would  cause  him  irreparable  harm.  The  US  District 
Judge  issued  a  TRO,  restraining  the  Air  Force  from  separating 
him. 

On 23 February 1994, the Air Force filed a Motion to Dismiss the 
lawsuit for lack of jurisdiction based on the applicant's failure 
to  exhaust  his  administrative remedies. At  an  oral  hearing  on 

5 

96-0052 1 

10 March  1994, the  judge  issued an  order vacating  the  TRO  and 
dismissing the case for lack of jurisdiction. 

On 10 March 1994, following discussions with HQ USAF/JACL and the 
Department of  Justice, HQ AFMPC/JA  determined that  the  21 days 
served by  the applicant  from  18 February to  10 March  1994 were 
served solely for the purpose of cbmplying with the TRO actions 
and  count  for  no  purpose  other  than  to  have  satisfied  the 
temporary order of  the court. However, he would be permitted  to 
keep the pay and allowances he received as a matter of equity. 

On 14 February 1996, the applicant filed this appeal for relief 
with the AFBCMR . 
Documents pertinent to the above facts can be found at Exhibits A 
and B. 

AIR FORCE EVALUATION: 

The AFBCMR Medical Consultant states that evidence of record and 
medical  examinations prior to  separation indicate the applicant 
did  not  have  any  medical  problem  which  would  have  warranted 
medical  retirement  under  the  provisions  of  AFR  35-4  (Physical 
Evaluation for Retention, Retirement &  Separation). Although the 
applicant may  have  been  having  some mental  health problems, he 
stopped the prescribed Mental Health Evaluation  (MHE) by refusing 
to continue with it, and refusing any therapies. He also1 refused 
an appointment at WHMC for a thorough MHE. He was being evaluated 
by a psychiatrist who was well known throughout the Air Force as 
thorough  and  experienced, but  he  was  advised  to  refuse  further 
evaluation  or  treatment.  The  diagnosis  from  the  limited 
evaluation was adjustment disorder with mixed emotional features 
(not a diagnosis which should be reviewed by a Medical Evaluation 
Board). He submits a civilian psychiatrist's report from January 
1996 which states that he had latent or borderline schizophrenia. 
Although  an  experienced  psychiatrist  was  evaluating  him,  the 
diagnosis of schizophrenia was not made. This was probably due to 
the fact that a thorough evaluation was not accomplished, but  it 
could be  due  to the  fact that  the diagnosis was not  able  to be 
made  because  of  the  stage of  the  disease being  too  early. The 
incomplete evaluation appears to be  the answer in this case. It 
is to be noted that applicant's discharge was two years prior to 
the  civilian  evaluation  and  the  time  factor  is  extremely 
important  in determining a diagnosis  as  this could  change with 
time.  There  is  nothing  of  record  which  indicates  applicant's 
misconduct was related to a mental health problem. Had this been 
presented  to  the  SAF  Personnel  Council  as  a  dual  action 
disability/administrative  discharge  case,  it  is  without  doubt 
that  the  administrative discharge would have been directed. The 
record establishes beyond all reasonable doubt that the applicant 
was  medically  qualified  for  continued  active  duty,  that  the 
reason  for  his  separation  was  proper  and  that  no  error  or 
injustice occurred. Action and disposition are proper and reflect 

6 

96-0052 1 

compliance with Air Force directives which implement the law. The 
Consultant recommends denial. 

A  complete  copy  of  the  Air  Force  evaluation  is  attached  at 
Exhibit C. 
The Senior Attorney-Advisor, HQ AFPC/JA also reviewed this appeal 
and  indicates that applicant  has not  shown there was any  legal 
error in the manner in which this case was processed. Applicant 
states that at  the time of his discharge he  had  accumulated 55 
days of  leave, which was  taken away  from  him. He  implies that 
taking his accrued leave from him was wrongful and suggests that 
crediting him with that number of days service would easily put 
him  over  2 0   years  of  service,  thereby  entitling  him  to 
retirement. Military leave is governed by federal statute. Title 
37, USC,  501  permits  payment  for  accrued  leave  only  when  the 
member is separated under honorable conditions, and a member who 
is  discharged UOTHC, like  the  applicant,  forfeits  all  accrued 
leave to his credit at  the time of his discharge. Even assuming 
the  applicant  had  been  discharged with an honorable or general 
discharge, he still could not credit that leave as service time. 
Title 37, USC,  501 provides that unused accrued leave for which 
payment  is made  is not considered as service for any purpose. By 
statute, the applicant cannot apply any unused accrued leave as 
additional  time  in  service  for  the  purpose  of  computing 
retirement  eligibility.  Applicant  claims  he  suffered  from  a 
mental condition or defect at the time he committed the offenses 
f o r   which  he  was  ultimately  discharged, but  that  the !military 
medical  community  failed  to  correctly  diagnose  or  provide  him 
with the necessary medical care he required. He contends that had 
he been provided with timely medical treatment for his condition, 
the  misconduct  would  not  have  occurred.  The  Senior  Attorney- 
Advisor  defers  to  the  Medical  Consultant's excellent  advisory, 
which concluded that applicant did not have any medical condition 
warranting  a  medical  retirement  under  the  regulations  then  in 
effect. Denial is recommend. 

A  complete  copy  of  the  Air  Force  evaluation  is  attached  at 
Exhibit D. 

APPLICANT'S REVIEW OF AIR FORCE EVALUATION: 

Complete  copies of  the  Air  Force evaluations were  forwarded to 
counsel on 8 October 1996 for review and response within 30 days. 
As of this date, no response has been received by this office. 

3 

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96-0052 1 

4 

b 

THE  BOARD CONCLUDES THAT: 

The applicant has exhausted all remedies provided by existing 

1. 
law or regulations. 

2.  The application was timely filed. 

3.  Insufficient  relevant  evidence  has  been  presented  to 
demonstrate the existence of probable error or injustice. After a 
thorough  and  careful  review  of  the  evidence  of  record  and 
applicant's extensive  submission, we  are  not  persuaded  that  he 
should be reinstated or retired. Applicant's contentions are duly 
noted;  however,  we  do  not  find  these  assertions,  in  and  by 
themselves,  sufficiently  persuasive  to  override  the  rationale 
provided by the Air Force. After the applicant repeatedly refused 
further evaluation and treatment, the military psychiatrist made 
a diagnosis, based on limited examination, of adjustment disorder 
with  mixed  emotional  features.  The  applicant  had  refused  to 
continue  the  prescribed  Mental  Health  Evaluation  and  any 
therapies, as  well  as  an  appointment  at  Wilford  Hall  Medical 
Center f o r   a  thorough evaluation. Adjustment  disorder is not  a 
diagnosis which  warrants  review by  a  Medical  Evaluation  Board. 
The applicant has provided insufficient evidence to indicate he 
should have been processed under the provisions of AFR  35-4. The 
civilian  psychologist's  diagnosis  of  latent  or  borderline 
schizophrenia was  noted; however, this  evaluation was  made  two 
years  after  the  applicant's  discharge.  As  indicated  by  the 
Medical  Consultant,  the  time  factor  is  extremely  impo~tant in 
determining  a  diagnosis  as  this  could  change  with  time.  The 
evidence of record does not indicate that applicant's misconduct 
was related to a mental health problem. In fact, in October 1992, 
the applicant himself denied any personal or family neurosis or 
psychosis.  Even  if  he  may  have  been  having  some mental  health 
problems while  in the service, at  the time of his discharge, it 
appears he was medically qualified f o r   continued active duty. As 
for his  forfeiture of  accrued  leave, statute precludes payment 
for accrued  leave if  a member  is not  separated under honorable 
conditions,  and  we  find  no  basis  for  changing  the 
characterization of applicant's discharge. Even if the applicant 
had  been  honorably  discharged, statute  also  precludes  applying 
any unused, accrued leave as additional time  in service for the 
purpose  of  computing  retirement  eligibility.  The  applicant  has 
not shown there was any error in the manner in which his case was 
processed  or  that  separation  was  not  {in  compliance  with 
appropriate  directives.  We 
the 
recommendations  of  the  Air  Force  and  adopt  the  rationale 
expressed  as the basis  f o r   our decision that  the  applicant  has 
failed to sustain his burden that he has suffered either a legal 
or  medical  error  or  injustice  warranting  reinstatement  or 
retirement.  In  view  of  the  above  and  absent  evidence  to  the 
contrary, we  find no compelling basis  to  recommend granting the 
relief sought. 

therefore 

agree 

with 

8 

96-0052 1 

4.  The documentation provided with this case was  sufficient to 
give the Board a clear understanding of the issues involved and a 
personal  appearance, with  or  without  legal  counsel, would  not 
have  materially  added  to  that  understanding.  Therefore,  the 
request for a hearing is not favorably considered. 

THE BOARD DETERMINES THAT: 

The  applicant  be  notified  that  the  evidence presented  did  not 
demonstrate  the  existence  of  probable  material  error  or 
injustice;  that  the  application was  denied  without  a  personal 
appearance; and  that  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 this application in 
Executive Session on 1 8   September 1997, under the provisions of 
AFI 36-2603: 

I 

Ms. Charlene M. Bradley, Panel Chairman 
Mr. Robert W. Zook, Member 
Mr. Jackson A. Hauslein, Member 
Ms. D. E. Hankey, Examiner (without vote) 

The following documentary evidence was considered: 

Exhibit A.  DD Form 149, dated 14 Feb 96, w/atchs. 
Applicant's Master Personnel Records. 
Exhibit B. 
Letter, AFBCMR Consultant, dated 1 3   May 96. 
Exhibit C. 
Exhibit D. 
Letter, HQ AFPC/JA, dated 25 Sep 96. 
Exhibit E.  Letter, AFBCMR, dated 8 Oct 96. 

I 

CHARLENE M. BRADLEY  (/ 
Panel Chairman 

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96-0052 1 

a -

 

_ -  

D E P A R T M E N T   O F   T H E   A I R   F O R C E  

H E A D Q U A R T E R S  A I R   F O R C E   P E R S O N N E L   C E N T E R  

R A N D O L P H  A I R   F O R C E   B A S E   T E X A S  

25 September 1996 

MEMORANDUM FOR AFBCMR 

FROM: 

'HQ AFPClJA (Lt Col Clark) 
550 C Street West Suite 44 
Randolph AFB TX  781 50-4746 

SUBJECT:  Application for Correction of Military Records - 

REQUESTED  ACTION:  The  applicant  is  asking  the  AFBCMR  to  reinstate  him  to 
active duty and provide him with the medical treatment he was previously denied.  If that request 
is denied then he alternatively asks the AFBCMR to restore him to active duty and provide  him 
an  honorable  discharge  with  full  retirement  so that  he  can  seek  his  medical  care  through  the 
civilian medical community. 

RELEVANT  FACTS:  Applicant  received  a  direct  conmission  into  the  Biomedical 
Service  Corps  in  January  1978.  He  served  on  active  duty  for  16 years  active  commissioned 
service.  In addition, he had three years, nine months prior active duty as an enlisted member.  He 
would  have  been  eligible to  retire  in  April  1994.  Applicant  performed  duties  in  the  medical 
administration,  medical  support,  and  medical  readiness  fields  at  McChord  Air  Force  Base, 
Washington; Travis Air Force Base, California; RAF Little Rissington, United Kingdom; Bolling 
For the most part, 
Air  Force Base,  District of Columbia; and 
applicant's  OPRs reflect  satisfactory  to  excellent  duty  perforrnance;  however,  he  does have  a 
referral  OPR  for  the  period  16  April  1991  to  15  April  1992  based  upon  some  shoplifting 
incidents.  His  awards  and  decorations  include the  Meritorious service Medal, the  Air  Force 
Commendation Medal (with two Oak Leaf Clusters), and the Air Force Achievement Medal. 

ir Force Base,- 

On 27 and 28 April  1993, a Board of Inquiry (BOI) was convened at 

Air Force 
Base,- 
and  recommended  that  the  applicant  be  removed  from  active  duty  and  given  an 
Under Other than Honorable Conditions (UOTHC) discharge.  The recommendation  was based 
on  findings  that  the  applicant  had  committed  serious  or  recurring  misconduct  punishable  by 
civilian  or military authorities, specifically shoplifting from the- 
Base Exchange (BX), 
other  acts  of  theft,  and  counseling  an  enlisted  subordinate  on  methods  to  achieve  a  false 
polygraph result. 

- 

Applicant  appealed  the  BO1  findings  and  recommendations  and  submitted  extensive 
rebuttals,  dated  7  and  24  September  1993.  In  addition  to  numerous  unspecified  errors,  he 
claimed  insufficiency  of the evidence, ineffective assistance  of counsel, and bias  on the part of 
the board president.  On 7 February  1994, the applicant's appeal was duly considered by the Air 

L 

1 

Force Board of Review (AFBR), which determined the applicant should not be retained on active 
duty.  The AFBR recommended that the  Secretary  of the Air Force remove the  applicant from 
active duty and discharge him under other than honorable conditions.  On  14 February  1994, the 
Secretary of the Air Force removed the applicant from active duty in the United States Air Force 
and directed a UOTHC discharge effective  18 February  1994. 

On  18 February  1994, the applicant  filed  a lawsuit  in the Federal District  Court for the 
Northern  District  of  Texas  asking  for  a  Temporary  Restraining  Order  (TRO)  to  prevent  his 
impending discharge from the Air Force.  The applicant alleged he was denied due process by the 
Air Force in the processing of his case by its failure to adequately consider and develop relevant 
facts relating to “latent or borderline paranoid  schizophrenia” which he stated caused his bizarre 
behavior  beginning in  1990.  He  alleged  that  discharging him  without  a medical retirement  or 
any retirement would cause him irreparable harm. 

On  18 February 1994, the United  States District Judge issued a TRO, restraining  the Air 
Force  from  separating the  applicant  from the  Air Force.  On 23 February  1994, the Air  Force 
filed a Motion to Dismiss the lawsuit for lack of jurisdiction  based on the applicant’s failure to 
exhaust his administrative remedies.  At an oral hearing on  10 March  1994, the judge issued  an 
Order Vacating the TRO and Dismissing the case for lack of jurisdiction.  On 14 February  1996, 
the applicant filed this application for relief with the AFBCMR. 

RECOMMENDATION:  We  recommend  the  AFBCMR  deny  the  relief  sought  by 

applicant because there is no error or injustice to correct. 

DISCUSSION:  This application for relief is timely.  The Air Force Board for Correction 
of Military Records is mandated by  statute.  Its charter is set forth at  10 U.S.C.  1552(a)(l), and 
states that: 

The Secretary of a military  department may correct any military  record 
of the Secretary’s department when the  Secretary considers it necessary 
to correct an error or remove  an injustice.  ...[ Sluch corrections shall 
be  made  by  the  Secretary  acting  through  boards  of  civilians  of  the 
executive part of that military department (emphasis added). 

It  is  clear  Congress  intended  the  service  secretaries,  acting  through  their  respective 
correction boards, to have broad powers to “correct an error or remove an injustice.”  In order to 
prevail,  an applicant must present  substantial evidence that an error or injustice exists.  In this 
application for relief, the applicant has shown neither an error nor an injustice. 

1.  THERE WAS NO LEGAL ERROR.  Applicant has not shown there was any legal 

error in the manner in which this case was processed. 

2 

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In his application  for relief, the applicant states that  at the time  of his discharge  he  had 
accumulated  55  days of  leave,  which  was  taken  away  from  him.  He  implies  that  taking  his 
accrued leave from him was wrongful and suggests that crediting him with that number of days 
service would easily put him over 20 years of service, thereby entitling him to retirement. 

Military  leave is governed by  federal  statute.  37 U.S.C.  501(a)(2) permits  payment  for 
accrued  leave  only  when  the  military  member  is  separated  under  honorable  conditions. 
37 U.S.C.  501(e)(l) states that  a member  of the Air  Force  who  is discharged  under  other  than 
honorable  conditions forfeits all accrued leave to his credit  at the time of his  discharge.  The 
applicant lost his accrued leave in this case because he was discharged from the service with an 
Under Other Than Honorable Conditions Discharge. 

Even assuming the applicant had been discharged with an Honorable or a General (Under 
Honorable  Conditions)  Discharge,  he  still  could  not  credit  that  leave  as  service  time. 
37 U.S.C. 501(c)  provides  that  unused  accrued  leave  for  which  payment  is  made,  is  not 
considered  as  service  for  any  purpose.  By  statute,  the  applicant  can  not  apply  any  unused, 
accrued leave as additional  time  in  service  for the  purpose  of computing  retirement  eligibility 
(See also 40 Comp Gen 545  [1961]-holding 
that a member  about to retire, who is entitled  to 
lump-sum  leave payment,  may  not elect to take  leave, in lieu  of receiving the lump-sum  leave 
payment, and thus accumulate additional service). 

2.  THERE  WAS  NO  INJUSTICE.  The  applicant  says  he  has  suffered  a  medical 
injustice.  He claims he suffered from a mental condition or defect at the time he committed the 
offenses for which he was ultimately discharged, but that the military medical community failed 
to  correctly  diagnose or provide  him  with  the  necessary  medical  care  he  required.  Applicant 
claims that had he been provided with timely medical treatment for his condition, the misconduct 
would not have occurred. 

The Medical  Consultant  to the AFBCMR has provided  an excellent advisory  regarding 
this  claim  and  has  concluded  that  all  evidence  of  record  and  medical  examinations  prior  to 
separation  indicate  the  applicant  did  not  have  any  medical  condition  warranting  a  medical 
retirement  under  the  regulations  then  in effect.  He  also states there  was no  causal  connection 
between  the  applicant’s  misconduct  and  his  current  mental  condition.  We  are  not  experts  in 
medicine and as such we will defer to that advisory and adopt its findings and conclusions as our 
O W .  

For the reasonscited herein, we recommend the application for relief be denied. 

WILLARD K. LOCKWOOD 
Senior Attorney-Advisor 

DEPARTMENT OF THE AIR  FORCE 

WASHINGTON  DC 

OFFICE OF THE ASSISTANT SECRETARY 

13 May  19% 

MEMORANDUMFORTHE AFBCMR 
From: Medical consultant to the Air Force BCMR 

1535 Command Drive 
EE Wing, 3rd Floor 
Andrews AFB, MD., 20762-7002 

rds 

Applicant’s entire case file has been reviewed and is forwarded with the following findings, conclusions and 
reammendations. 

The applicant was separated on 18 February 1994 with an Under Other than Honorable Conditions Discharge 
under the authority of AFR 36-12, with the reason for discharge being Involuntary Discharge: Pattern of 
Misconduct.  He now requests he be granted a medical retirement, intimating that he should have been given a 
thorough Mental Health Evaluation. 

Review of medical records does not disclose any evidence to support correction of records from administrative 
separation to medical retirement. 

Evidence of record and medical examinations prior to separation indicate the applicant did not have any medical 
problem which would have warranted medical retirement under the provisions of AF’R 35-4 (Physical Evaluation 
for Retention, Retirement and Separation).  Reasons for discharge and discharge proceedings are well documented 
in the records.  Action and disposition in this case are proper and reflect compliance with Air Force directives 
which implement the law. 

Evidence of record shows that although the applicant may have been having some mental health problems, he 
stopped the prescribed Mental Health Evaluation (MHE) by refusal to continue with it, also refusing any therapies. 
He also r e W  an appointment at Wilford Hall Medical Center for a thorough MHE. He was being evaluated by a 
psychiatrist who was well known throughout the Air Force as thorough and experienced, but he was advised to 
refuse further evaluation or treatment.  The diagnosis from the limited evaluation was adjustment disorder with 
mixed emotional fatures (not a diagnosis which should be reviewed by a Medid Evaluation Board).  He submits 
a civilian psychiatrist’s report from January 19%  which states that he had latent or borderline schizophrenia. 
Although an experienced psychiatrist was evaluating him, the diagnosis of schizophrenia was not made. This was 
probably due to the fact that a thorough evaluation was not accomplished, but it could be due to the fact that the 
diagnosis was not able to be made because of the stage of the disease being too early.  The incomplete evaluation 
appears to be the answer in this case.  It is to be noted that applicant’s discharge was two years prior to the civilian 
evaluation and the time factor is extremely important in determining a diagnosis as this could change with time (as 
symptoms and conditions worsen).  There is nothing of record which indicates that applicant’s misconduct was 
related to a mental health problem.  Had this been presented to the SAF Personnel Council as a dual action 
disabiMy/administrative discharge case, it is without doubt that the administrative discharge would have been 
directed. The record establishes beyond all reasonable doubt that the applicant was medically qualified for 
continued active duty, that the reason for his separation was proper and that no error or injustice occurred in this 
case.  Action and disposition in this case are proper and reflect compliance with Air Force directives which 
implement the law. 

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I )  

Medical Consultant to the Air Force BCMR 

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