, 

ADDENDUM TO 

RECORD O F   PROCEEDINGS 

IN THE MATTER OF: 

A-IR FORCE BOARD FOR  CORRECTION OF MILITARY RECORDS 

DOCKET  NUMBER:  91-0196 ?AN 0 6  7999 

HEARING DESIRED:  NO 

APPLICANT REQUESTS THAT: 

It appears the applicant is requesting that: 

(1)  The Article  15, UCMJ, initiated on 15 March 1971, be set 

aside. 

(2)  The  SF  Form  88,  Report  of  Medical  Examination,  dated 
16 August  1971, be  corrected to reflect items 18, 21, 22, 23, 24, 
25, 28, 30, 31, 36, 37 and 40 as abnormal, that his blood pressure 
was not normal, and his eyes were not normal, and that he be given 
a combined disability rating. 

(3)  The  Separation Discharge Number  ( S D N )   of  265, issued  in 
conjunction  with  his  20 August  1971  administrative discharge,  be 
changed to reflect a disability separation under the provisions of 
AFM 35-4, with disability severance pay/compensation. 

... 

RESUME OF CASE: 

On  24 October  1991, the AFBCMR  considered and rejected as untimely 
an application submitted by  applicant requesting corrective action 
to  reflect  that  he  received  disability  severance pay  and/or  lump 
sum adjustment or separation pay from the Armed  Forces  (Exhibits A 
through F). 

provided 

Applicant 
requested 
reconsideration of his appeal.  On 23 January 1992, after reviewing 
his submission, the determination was made that his request did not 
meet the criteria for reconsideration (Exhibit G). 

additional  documentation  and 

On  6  December  1994,  applicant  submitted  another  request  for 
reconsideration, which was essentially the same request previously 
considered  by  the  Board. 
Consequently,  his  request  f o r  
reconsideration was again denied on 24 October 1995  (Exhibit H). 

On 20 August 1996, applicant again requested reconsideration of his 
appeal  and  submitted  duplicates  of  all  of  the  correspondences 
reconsideration was denied on 18 July 1997 (Exhibit I).  - 
His  request  f o r  
provided  with  his  previous  submissions. 

I 

4 

By  letters dated  7 August  1997, 26 October 1997,  9  December 1997, 
and  16  February  1998,  applicant  requested  reconsideration  of  his 
He  provided  copies  of  documentation  submitted  with  his 
appeal. 
prior  submissions,  which  included documentation pertaining  to  the 
contested  Article  15  action,  his  administrative  disQarge,  the- 
contested SF  Form 88,  and extracts from his Department of Veterans 
Affairs  (DVA) records.  (Exhibit J) 

APPLICANT CONTENDS THAT: 

The disciplinary punishment was unjust and fraudulent. 

His S D N   did not have a definition in 1971. 
The S F   Form 88 is incorrect because he was treated for hypertension 
in  the  military;  therefore, his  blood  pressure  cannot be  normal. 
He wears glasses, so his eyes  are not normal.  After his SF Form 88 
is corrected, he should be given a combined  [disability] rating and 
his  S D N   changed  to  reflect  a  disability  separation  under  the 
provisions of AFM 35-4,  with monthly compensation. 

- 

STATEMENT OF FACTS: 

On 10 October 1967, applicant enlisted in the Regular Air Force for 
a period of four years.  His highest grade held was sergeant (E-4). 
He  was  reduced  in grade  from sergeant  to  airman  first  class as  a 
result  of  punishment  imposed  under  the  provisions  of  Article  15, 
UCMJ,  for  careless  discharge  of  a  weapon.  The  record  contains 
seven  Airman  Performance  Reports  (APRs)  reflecting  overall 
evaluations of  (oldest to latest):  7, 6, 9, 7,  8,  4, and 4. 
On  15  March  1971,  the  group  commander  notified  applicant  of  his 
intent  to  impose  punishment  pursuant  to  the  Uniform  Code  of 
Military  Justice  (UCMJ) ,  Article  15,  for  carelessness  in 
discharging  a  .38  caliber  revolver in  the Security Control Center 
Room on or about 24  February 1971.  Applicant acknowledged receipt 
of the  notification and  indicated that  trial by  court-martial was 
not demanded.  He offered no matters in mitigation, extenuation, or 
defense. 
On  22  March  1971,  the  commander  imposed  punishment 
consisting  of  reduction  in  grade  from  sergeant  to  airman  first 
class and forfeitures of $100 per month  for two months.  Applicant 
appealed this action; his appeal was denied. 

On 18 August  1971, the squadron commander initiated administrative 
discharge action against the applicant under the provisions of AFM 
39-12, Section A, paragraph 2-4b, for unsuitability.  The specific 
reason  for the proposed action was  that  applicant had  a  character 
and behavior disorder best diagnosed as a psychopathic personality, 
moderate.  The commander recommended a general discharge because of 

2 

AFBCMR 91-01962 

* 

applicant's 
disciplinary  record  and  his  refusal  to  accept 
rehabilitation.  Applicant  acknowledged  receipt  of  the  discharge 
notification on 18 August 1971. 

A  duly  appointed Evaluation Officer  interviewed  the  applicant and 
advised him of his rights under the provisions of AFM 39112 and his- 
right to submit a statement in his own behalf.  After reviewing the 
applicant's  records  and  interviewing  him  on  two  occasions,  he 
recommended that the applicant be  separated from the Air  Force as' . 
soon as  possible with an honorable discharge.  He did not recommend 
rehabilitation  for  the  applicant.  On  19  August  1971,  applicant 
submitted his personal  statement  for  consideration.  On  20 August 
1971, the  Staff  Judge Advocate  found the  case  file  sufficient to 
warrant  applicant's  separation under  the provisions of AFM  39-12. 
He  did  not  recommend  probation  or  rehabilitation.  On  the  same 
date, the discharge authority approved an honorable discharge. 
A  Report  of  Medical  Examination,  dated  16  August  1971,  reflects 
applicant had no psychosis, psychoneurosis, neurosis, or any other 
mental  or  physical  condition  requiring  processing  in  accordance 
with AFM 35- 4.  He was found qualified for separation. 
On 20 August 1971, he was honorably discharged under the provisions 
AFM  39-12,  in  the  grade  of  airman  first  class  ( E - 3 ) ,   with 
separation designation number  (SDN) 265  (unsuitability -  character 
and behavior  disorders -  individual evaluation).  He  was  credited 
with 3  years, 10 months, and 9 days of active duty service. 

ADDITIONAL AIR FORCE  EVALUATION: 
The  Associate  Chief,  Military  Justice  Division,  AFLSA/JAJM, 
reviewed  this  application  and  concluded  that  there  are  no  legal 
errors  requiring  corrective  action  regarding  the  nonjudicial 
punishment  and  administrative  relief  is  not  possible  by  their 
office. 

JAJM stated that the applicant contends he discovered the injustice 
(of the Article 15) in December 1996 but does not explain what the 
significance of this date is or offer an explanation as to why now, 
almost 27 years after punishment was imposed, it is in the interest 
of  justice  that  the  AFBCMR  consider  his  application. 
There  is 
nothing  in  the  applicant's 
record  that  would  justify  the 
extraordinary action of waiving  the  statute of  limitations.  Even 
if  the  Board  decides  to  waive  the  three  year  statute  of 
limitations, the  facts of  this case do not  warrant  a  set aside of 
the  applicant's  Article  15.  Since the  applicant  has  not  offered 
any  evidence  to  show  that  his  nonjudicial  punishment  was 
unsupported in  fact or  shown other  evidence of  irregularity, JAJM 
concludes that it was properly accomplished and that the applicant 
was afforded all the rights granted by statute. 

3 

AFBCMR 91-01962 

JAJM recommended that the Board deny the applicant's  request:  (1) 
on  the  basis  that  it  is  untimely;  (2) on  the  merits;  and  ( 3 )  
because  it  does  not  meet  the  criteria  for  reconsideration.  The  - 
complete evaluation is at Exhibit K. 

,-I 

The  Separations  Branch,  AFPC/DPPRS,  stated  that  the*Air  Force- 
Separation  Discharge  Number  (SDN)  History  File  indicates  the 
definition of SDN 265 in 1971  (the code received by the applicant) 
as "Unsuitability -  Character and Behavior Disorder per AFM  39-12,. . 
Chapter 2,-  Section A."  (Exhibit L) 
The  BCMR  Medical  Consultant  reviewed  this  application  and  opined 
that the applicant's  request for a change in his records to reflect 
a  medical  disability  should  be  denied.  His  comments,  in  part, 
follow. 

. 

The  BCMR  Medical  Consultant  stated  that  the  advisory  opinion  of 
13 June 1991  (Exhibit C)  remains valid  as the proper input to the 
Board  regarding  applicant's  medical  status  at  the  time  of  his 
administrative discharge in 1971.  He had  been  found, in 1971, to 
have  a  Psychopathic  Personality  Disorder,  an  unsuiting  but  not 
unfitting condition which was used to' effect his separation.  As a 
personality  disorder  is  not  a  condition  that  falls  under  the 
umbrella  of  the  disability evaluation  system  (DES), the  applicant 
was  not  eligible  for  disability  compensation  at  the  time  of  his 
discharge  nor  is  he  now,  27  years  later,  eligible  for  such 
consideration.  The  other  conditions mentioned  in  the  applicant's 
letter dated 26 October  1997  (hypertension, visual abnormalities), 
again,  were  not  unfitting  conditions,  and  were  therefore  not 
considered  under  the  DES. 
They  may  be  conditions  that  the 
Department of  Veterans  Affairs might  consider  compensation for  if 
they can be found to be service-connected or aggravated. 
The complete evaluation is at Exhibit M. 

APPLICANT'S REVIEW OF ADDITIONAL AIR FORCE EVALUATION: 

Applicant  reiterated  his  contentions  that  because  of  his 
disabilities he  should not  have been  demoted;  that  his  S D N   should 
be corrected to reflect his disability; and, that since he received 
an honorable discharge, there is no legal reason not to compensate 
him for his disabilities. 

In addition to documents previously submitted, applicant provided a 
17  May  1990  mental  health  report  and  a  13  February  1991 
neuropsychiatry Agent Orange examination report. 

Applicant's  response, with attachments, is at Exhibit 0. 

4 

AFBCMR  91-01962 

I 

THE BOARD  CONCLUDES  THAT: 
1.  In  earlier  findings  in  this  case  pertaining  to  applicant's  - 
request  for  a  disability  separation  and  compensation,' the  Board 
determined  that  the  application was  not  timely  filed  and  that  it 
would  not  be  in the  interest of  justice to excuse the*failure  to-- 
timely  file.  After  reviewing  the  evidence  previously  considered 
and the applicant's  recent submissions, we have determined that it 
would be in the interest of justice to waive the failure to timely-. 
file and to resolve this case on its merits. 
2.  After  careful  consideration  of  the  applicant's  most  recent 
submission,  as  well  as  his  previous  submissions,  we  find 
insufficient  relevant  evidence  has  been  presented  to  demonstrate 
the existence of probable error or injustice warranting corrective 
action . 

a.  Applicant's  contentions  that  the  contested  Article  15 
punishment  was  unjust  and  fraudulent are duly noted.  However, we 
do not find these arguments sufficiently persuasive to override the 
rationale expressed by  the Military Justice Division  (AFLSA/JAJM) . 
The commander had the discretionary authority to impose nonjudicial 
punishment  under Article  15, UCMJ,  when he concluded that reliable 
evidence  existed  to  indicate  an  offense  was  committed. 
When 
offered  the  Article  15,  applicant  had  an  opportunity  to  demand 
trial  by  court-martial  thereby  requiring  the  prosecution  to 
establish  his  guilt beyond  a  reasonable doubt.  However, he  chose 
not to pursue this avenue and accepted the Article 15 instead.  The 
applicant has not provided any evidence that would persuade us that 
the  commander  abused  his  discretionary  authority  in  imposing  the 
Article  15 punishment  or  that  the  punishment  was  unjust.  Having 
found the Article 15 action to be valid, we therefore conclude that 
there  is  no  basis  upon  which  to  recommend  favorable  action  on 
applicant's  requests that the Article 15 be  set aside, his rank of 
sergeant  ( E - 4 )   be restored, and the forfeitures be returned. 

b.  Applicant  contends that his SF Form 88, Report of Medical 
Examination,  dated  16 August  1971, should be  corrected  to  reflect 
"abnormal" in  several  areas,  that  he  should  be  given  a  combined 
rating for his disabilities, and that his administrative discharge 
should be  changed  to reflect a discharge for disability under  the 
However,  after  careful  review  of  the 
provisions  of  AFM  35-4. 
applicant's  complete  submissions, including the subsequent medical 
opinions  and  records  submitted  with  his  appeals,  we  found  no 
evidence  that  his  physical  fitness  to  perform  his  duties  at  the 
time of his separation was questionable.  The regulation governing 
disabilities  defines  unfitness  as  the  inability  of  a  member  to 
perform the duties of hidher office and grade in such a manner as 
to reasonably  fulfill the purpose  of  his/her  employment  on active 
duty. 
Such  a  determination  would  have  been  required  before  the 
applicant  could  be  eligible  for  physical  disability  processing. 
The  mere  presence  of  physical  defects  or  conditions  does  not 
justify a finding of unfitness.  At the time of his separation, the 
applicant  was  considered  medically  qualified  for  Separation. 

5 

AFBCMR  91-01962 

Additionally,  a  review  of  the  applicant's  performance  reports 
reflects that, until his  separation, he performed his duties  in a - 
satisfactory manner.  Based on the foregoing, and in 'the, absence of 
evidence  showing  that  the  applicant  was  medically  unfit  for 
continued service within the meaning of AFM  35-4, which  implements 
the  law,  or  that  he  was  improperly evaluated  at  the  *me  of  his 
separation, we find no basis to disturb the existing record. 

c.  Inasmuch  as  we  found  no basis  to  change the  applicant's  . .  
records  to reflect a discharge f o r   disability, his assigned SDN  of 
265  is  correct,  as  it  accurately  reflects  his  administrative 
discharge under the provisions of AFM 39-12. 

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 10 December 1998, under the provisions of AFI 
36-2603: 

Mr.  Henry C. Saunders, Panel Chair 
Ms.  Sophie A. Clark, Member 
Ms. Ann L. Heidig, Member 

The following additional documentary evidence was considered: 

Exhibit G .  
Exhibit H. 

Exhibit I. 

Exhibit J. 
Exhibit K. 
Exhibit L. 
Exhibit M. 
Exhibit N. 
Exhibit 0 .  

Letters from Applicant, dated 17 Oct, 2 Nov and 
16 Dec 91, w/atchs; AFBCMR Letter, dated 23 Jan 92. 
DD Form 149, dated 6 Dec 94, w/atchs, and Letter 
from Applicant, dated 3 Jul 95; AFBCMR Letter, 
dated 24 Oct  95. 
DD Form 149,  dated 24  Oct 96, and Letter from 
Applicant, dated 25 Jun 97, w/atchs; AFBCMR Letter, 
dated 18 Jul 97. 
Letters from Applicant, dated 7 Aug, 26 Oct 97, and 
9  Dec 97, and 16 Feb 98,  w/atchs. 
Letter, AFLSA/JAJM, dated 6 Mar 98. 
Letter, AFPC/DPPRS, dated 31 Mar 98. 
Letter, BCMR Medical Consultant, dated 7 Apr 98. 
Letter, SAF/MIBR, dated 27 A p r   98. 
Letter, Applicant, dateg15 May 9v w/atchs. 

- 

\ 

6 

AFBCMR  91-01962 

AIR FORCE BOARD  FOR CORRECTION OF MILITARY RECORDS 

RECORD  OF PROCEEDINGS 

1- 

r C * . - - * - -  

- *  

IN THE  MATTER OF: 

DOCKET  NUMBER: 
COUNSEL:  None 

91-01962 

- 

,-i 

HEARING DESIRED:  No. 

- *  
oc7= 2 4  1991 

~ 

-~ 

~- 

-_- 

APPLICANT  REQUESTS  THAT: 
Corrective  a c t i o n   be  t a k e n   t o   reflect  t h a t   h e   r e c e i v e d   d i s a b i l i t y  
severance pay,  and/or  lump sum  r e a d j u s t m e n t   or  s e p a r a t i o n   pay  from 
t h e   A r m e d   Forces. 

APPLICANT CONTENDS THAT: 
The  r e a s o n s   t h e   a p p l i c a n t   b e l i e v e s   the  r e c o r d s   t o   be  i n   error  or 
u n j u s t   and  t h e   e v i d e n c e   s u b m i t t e d   i n   s u p p o r t   of  t h e   appeal  are  a t  
E x h i b i t   A. 

STATEmNT  OF FACTS: 
The  r e l e v a n t   f a c t s   p e r t a i n i n g   t o   t h i s   a p p l i c a t i o n ,   e x t r a c t e d   from 
t h e   a p p l i c a n t ' s   m i l i t a r y   records,  are  c o n t a i n e d  
i n   t h e   l e t t e r s  
t h e   Air  Staff. 
prepared 
A c c o r d i n g l y ,   there  is no  need  t o   r e c i t e   these  f a c t s   i n   t h i s   Record 
of  P r o c e e d i n g s .  

t h e   a p p r o p r i a t e   o f f i c e s   of 

by 

AIR STAFF  EVALUATION : 
AFMPC/DPMMMR  a n d   AFMPC/DPMAD  r e v i e w e d  
recommended  d e n i a l .  
Complete  copies  of 
E x h i b i t s   C and D,  r e s p e c t i v e l y .  

_-  -- 

t h i s   a p p l i c a t i o n   and 
t h e   e v a l u a t i o n s   are  at 

APPLICANT'S  REVIEW OF AIR  STAFF  EVALUATION: 
The  a p p l i c a n t   reviewed 
r e s p o n s e s   w h i c h   are attached  a t  E x h i b i t   F. 

t h e   a d v i s o r y   o p i n i o n s   and  ' f u r n i s h e d   h i s  

L 

t h e   a p p l i c a t i o n   timely, 

FINDINGS AND CONCLUSIONS OF THE  BOARD: 
1.  The  a p p l i c a t i o n   was  not  f i l e d   w i t h i n   three  years  after  t h e  
i n j u s t i c e   was  d i s c o v e r e d ,   or  reasonably  c o u l d  
a l l e g e d   error  or 
have  been  d i s c o v e r e d ,   a s   r e q u i r e d   by  S e c t i o n   1552,.  T i t l e   1 0 ,  
United  States  Code  (10 USC  1552),  and  A i r   Force  -Regulatgon  31-3. 
Although  t h e   a p p l i c a n t   asserts  a  date  of d i s c o v e r y   which  would, 
i f  
correct,  make 
t h e   e s s e n t i a l   facbs  which 
g a v e   rise  t o   t h e   a p p l i c a t i o n   were  known  to a p p l i c a n t   lo&  b e f o r e  
Knowledge  of  t h o s e   f a c t s  
t h e   asserted  d a t e   of  d i s c o v e r y .  
t h e   date  of  d i s c o v e r y   and  the  beginning  of  t h e  
c o n s t i t u t e d  
t h r e e - y e a r   period  f o r   f i l i n g .   Thus  t h e   a p p l i c a t i o n   is untimely. 
P a r a g r a p h   b  of  1 0   USC  1552 permits  us,  i n   our  d i s c r e t i o n ,  

t o  
2. 
have 
i n t e r e s t   of 
j u s t i c e .  
e x c u s e   u n t i m e l y  
t h e   e n t i r e   record, 
c a r e f u l l y   reviewed  a p p l i c a n t ' s   submission  and 
and  we  do  n o t   f i n d   a  s u f f i c i e n t   basis 
t o   excuse  t h e   untimely 
f i l i n g   of  t h i s   a p p l i c a t i o n .  
shown  a 
p l a u s i b l e   r e a s o n   for  d e l a y   i n   f i l i n g ,   and  we  are  n o t   persuaded 
t h a t   the recor'd  raises  i s s u e s   of  e r r o r   or  i n j u s t i c e   which  require 
r e s o l u t i o n   on  t h e   merits  a t   t h i s   time.  Accordingly,  w e   conclude 
t h a t   it  would  n o t   be 
j u s t i c e   t o   excuse  t h e  
u n t i m e l y   f i l i n g   of t h i s  a p p l i c a t i o n .  

The  a p p l i c a n t   h a s   n o t  

f i l i n g  

i n   t h e  

We 

i n   t h e   i n t e r e s t   of 

DECISION OF THE  BOARD: 
The  a p p l i c a t i o n   was  n o t   t i m e l y   filed  and  i t   would  n o t   be  i n   t h e  
i n t e r e s t   of j u s t i c e   t o  waive  t h e   u n t i m e l i n e s s .  
I t   i s   t h e   d e c i s i o n  
of  t h e  Board,  therefore,  t o  reject  t h e   a p p l i c a t i o n   as untimely. 

The  f o l l o w i n g   members  of 
a c c o r d a n c e   w i t h  
31 May  1985: 

t h e   Board  c o n s i d e r e d   t h i s   a p p l i c a t i o n   i n  
t h e   p r o v i s i o n s   of  paragraph  9,  AFR  31-3,  dated 

M r .   Martin  H.  Rogers,  Panel  Chairman 
Ms, L o  J u l i e  Copenhaver,  Member 
Mr.  C.  Bruce  Braswell,  Member 

The  f o l l o w i n g   documentary  evidence  was c o n s i d e r e d  : 

E x h i b i t   A. 
DD  Form  149, d a t e d   .23 J a n   91,  w/atchs, 
E x h i b i t   B o   A p p l i c a n t ' s   A v a i l a b l e   Master  Personnel  Records. 
E x h i b i t   C.  Letter,  AFMPC/DPMMMR,  dated  13 Jun  91. 
E x h i b i t   D o   Letter,  AFMPC/DPMAD,  dated  8 J u l   91. 
E x h i b i t   E.  Letter,  AFBCMR,  dated  9  Aug  91. 
E x h i b i t   F.  Letters,  A p p l i c a n t ,   dated  1 6   and  20  Aug  91, 

w / a t c h s .  

P a n e l   Chairman 

2