AIR FORCE BOARD FOR  CORRECTION OF MILITARY RECORDS 

RECORD OF PROCEEDINGS 

IN THE MATTER OF: 

DOCKET NUMBER:  94- 03455 
COUNSEL:  None 
HEARING DESIRED:  No 

ra(yS  2 9  I999 

APPLICANT REQUESTS THAT: 

His bad conduct discharge (BCD) be upgraded. 

APPLICANT CONTENDS THAT: 
His  present  serious  medical  condition  of  Systemic  Lupus 
Erythematosis, diagnosed  in  Sep  93  while  on active  duty,  is  a 
life-threatening disease and his BCD will not allow him to seek 
health  care  through  the  Veterans  Administration  (VA) . 
His 
financial hardship caused by the BCD makes meaningful employment 
nearly impossible to achieve and  furtherance of his educational 
opportunities limited by denial of any federal or state student 
loans due.  He takes full responsibility for his  indiscretions. 
Since his court-martial, he has made positive strides on becoming 
a productive member of society. 
In  support  of  his  request,  applicant  provided  a  copy  of  his 
medical 
statements,  certificates  of 
achievement and other documentation relating to his appeal. 
Applicant’s complete submission is attached at Exhibit A. 

character 

records, 

STATEMENT OF FACTS: 
On 2  May 91,  the applicant enlisted in the Regular Air Force for 
a period of 4 years in the grade of airman basic. 
Applicant’s Enlisted Performance Reports reflect the following: 

PERIOD OF REPORT 

OVERALL EVALUATION 

2 May 9 1   through 22 Jan 93 
23  Jan 93  through  8  Dec 93 

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On  15 Oct  93,  the  commander  requested  the  applicant  permanent 
change  of  station  (PCS) to  Keesler  AFB,  Mississippi,  for  the 
purpose of conducting a court-martial. 

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AFBCMR 94-03455 

On 18 Oct 93, a Medical Evaluation Board  (MEB) convened under the 
provisions of AFM 168-4, 35-4, and 160-43.  The MEB established a 
diagnosis  of  Systemic  Lupus  Erythematosis Autoimmune  Hemolytic 
Anemia  and  found  him  not  fit  for  worldwide  duty. 
The  MEB 
recommended referral to a Physical Evaluation Board  (PEB) with a 
recommendation  that  applicant  be  discharged  on  medical 
disabi 1 it y . 
On  15 Nov  93, an  Informal Physical Evaluation Board  (IPEB) was 
convened  and  found the  applicant was  unfit because  of physical 
disability with a diagnosis of Systemic Lupus Erythematosus with 
Secondary  Autoimmune  Hemolytic  Anemia  and  recommended  the 
applicant  be  placed  on  the  Temporary  Disability  Retired  List 
(TDRL) with a 30% disability rating.  On 2 Dec 93, the applicant 
agreed with the findings and recommendations of the IPEB. 
On 13 Dec 93, officials within the Office of the Secretary of the 
Air  Force  directed  that  the  applicant  be  placed  on  the  TDRL, 
effective  12 Feb  94,  in  the  retired pay  grade  of  airman  first 
class  per  AFR  35-4  with  compensable  percentage  for  physical 
disability of 30% and a date of separation (DOS) of 11 Feb 94 was 
established. 
On 7 Jan 94, per Special Order #ACD-00632,  applicant’s placement 
on the TDRL, to be  effective  12 Feb 94, was  rescinded.  It was 
indicated that since court-martial charges were preferred against 
the  applicant,  he  was  no  longer  eligible  for  disability 
processing; therefor;e, his disability case was terminated. 

On  31 Jan  94, charges were  preferred  against  the  applicant  in 
violation  of  Articles  121  and  81,  Uniform  Code  of  Military 
Justice  (UCMJ), and  he  was  charged  with  9  specifications  of 
larceny in violation of Article  121, UCMJ, and 2 specifications 
of conspiracy to commit larceny in violation of Article 81, UCMJ. 
On 10 Mar 94, an Article 32, UCMJ, investigation was executed on 
applicant.  He submitted a Chapter 4  (discharge in lieu of trial 
by  court-martial) which  was  denied  and  he  was  scheduled  for  a 
.  trial . 
On 15 Sep 94, per General Court-Martial Order #51, as pertains to 
Charge  I,  the  applicant  was  arraigned  on  the  offenses  under 
Article  121,  UCMJ,  of  9  specifications of  larceny  to  include 
between  on or  about  20 Jul  92 to  on or  about  1 Mar  93,  for  a 
total of $6,360 . 96 in currency, military property, the property 
of the United States Air  Force.  The applicant pled  guilty and 
was found guilty of these offenses. 

Under Article  81, UCMJ, as pertains to Charge  11, Specification 
1, the applicant did, on or about 20 Oct  92, conspire with W--- 
S---  , to commit an offense under the UCMJ, to wit:  larceny of 
$394.65  in  United  States  currency,  military  property,  and  in 
order to  effect the object of the conspiracy, he did accomplish 

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AFBCMR 94-03455 

by  writing  in  certain  pertinent  blocks,  a  DD  Form  2278 
(Application  for  Do  It  Yourself  (DITY) Move  and  Counseling 
Checklist)  and,  also  in  order  to  effect  the  object  of  the 
conspiracy, the said W--- S--- did steal $394.65 in United States 
currency. 
Under Article 81, UCMJ, as pertains to Charge 11, Specification 
2, the applicant did, on or about  4 Dec 92, conspire with  J--- 
L--- , to  commit an offense under the UCMJ,  to wit:  larceny of 
$467.55  in  United  States  currency,  military  property,  and  in 
order to effect the object of the conspiracy, he did accomplish 
by writing in certain pertinent blocks, a DD Form 2278 and, also 
in order  to  effect  the  object  of  the  conspiracy the  said  J--- 
did  steal  $467.55  in United  States  currently.  Applicant 
L--- 
pled guilty and was found guilty of these offenses. 
On  13 Dec  96, a general  court-martial sentenced applicant to  a 
BCD,  confinement  for  12  months,  and  reduction  in  grade  from 
airman first class to airman basic.  The sentenced was adjudged 
on 13 May 94. 
On 17 Dec 96, the applicant was discharged under General Court- 
Martial Order #12 with a BCD in the grade of airman basic.  He 
was  credited  with  5  years,  7  months,  and  16  days  of  active 
service, 9 months of which was served in confinement from 13 May 
1994 through 22 Feb 95. 

AIR FORCE EVALUATION: 
The  Associate  Chief,  Military  Justice  Division,  AFLSA/JAJM, 
reviewed this application and indicated that the MEB findings as 
to applicant's  medical condition were known throughout all phases 
of  the  judicial process  affecting his  court-martial.  The MEB 
medical  summary  was  an  exhibit  to  the  Article  32,  UCMJ, 
investigation,  as  well  as  at  trial. 
The  applicant  provided 
extensive  sworn testimony during  the  sentencing portion  of  his 
trial and  the court members  were  fully aware of his  condition. 
There was video testimony by a rheumatologist that the applicant 
had lupus and none of this was rebutted by the government.  His 
medical condition was mentioned  in his clemency package and was 
considered by the convening authority.  Even the Air Force Court 
of Criminal Appeals considered his medical condition on the issue 
of  inappropriate  sentence. 
What  is  not  available  for 
consideration 
findings  and 
recommendations a PEB would provide but it appears that applicant 
was  headed  for  his  court-martial  before  any  PEB  review  was 
initiated.  Of interest is footnote three at page five of the Air 
Force Court  of  Criminal Appeals  opinion that  applicant's  trial 
defense counsel had  information of physician disagreement as to 
whether applicant had lupus at all. 

extensive  medical 

is 

the 

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AFBCMR 94-03455 

Applicant's  record of  trial has been  thoroughly reviewed.  The 
scheme he developed to steal government funds using false claims 
is clear from applicant's  own sworn testimony, as well as that of 
other  credible witnesses.  Equally,  his  medical  condition was 
known to all at his trial and in his clemency matters.  There is 
no  legal basis  to  disturb  the  obvious  consideration  the  court 
members, the convening authority and appellate court all gave to 
these  issues.  There  is no basis upon which  to  grant  applicant 
his  request  nor  is  administrative  relief  possible  nor 
appropriate.  Accordingly, JAJM recommends denial, 
A  complete  copy  of  the  Air  Force  evaluation  is  attached  at 
Exhibit C . 
The Chief, Medical Consultant, SAF/PC, reviewed this application 
and  indicated  that  in  accordance  with  AFI  48-123,  Chapter 6, 
paragraph  6.5,  "members  sentenced  to  punitive  discharge  by  a 
court-martial ... are  not  eligible  for  MEB  processing"  and 
completion of his processing was  suspended upon his conviction. 
The Medical  Consultant  further  states  that  consideration under 
the  disability  evaluation  system  depends  on  honorable  service 
while  in  the  military  and  applicant  obviously  failed  this 
prerequisite. 
Despite  having  a  substantiated  disqualifying 
medical  condition, applicant, by  his  actions,  rendered himself 
ineligible for benefits.  The  condition did not  interfere with 
his ability to distinguish right from wrong and was not the cause 
of  his  misconduct. 
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, 
The  Medical 
Consultant is of  the  opinion that no  change  in the  records  is 
warranted and the application should be denied. 
A  complete  copy  of  the  Air  Force  evaluation  is  attached  at 
Exhibit D. 
The  Chief,  USAF  Physical  Disability  Division,  AFPC/DPPD,  also 
reviewed this application and  indicated that the purpose of the 
military disability system is to maintain a fit and vital  force 
by  separating members  who  are  unable  to  perform  the  duties  of 
their  grade,  office,  rank  or  rating. 
Those  members  who  are 
separated  or  retired  by  reason  of  physical  disability  may  be 
eligible,  if  otherwise  qualified,  for  certain  disability 
compensations. 
Eligibility  for  disability  processing  is 
established by an MEB when that board  finds that the member may 
not be qualified for continued military service.  The decision to 
conduct  an  MEB  is  made  by  the  medical  treatment  facility 
providing health care to the member. 

At  the  time  the  applicant  was  convicted by  a  court-martial on 
13 May 94, in accordance with AFR 35-4, all disability processing 
actions were terminated,  DPPD has reviewed the medical and judge 
advocate  advisories  and  concurs  with  their  comments  and 
recommendations.  Because  of  his  court-martial  and  BCD,  the 

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AFBCMR 94-03455 

applicant  was  appropriately  found  ineligible  for  processing 
through the Air Force disability evaluation system in accordance 
with AFRs 35-4 and 160-43. 
A complete copy of their evaluation is attached at Exhibit E. 

APPLICANT'S REVIEW OF AIR FORCE EVALUATION: 

Copies of the Air  Force evaluations were  forwarded to applicant 
on  6 Oct  97  for  review  and  response.  As  of  this  date,  no 
response has been received by this office. 

THE BOARD CONCLUDES THAT: 
1.  The applicant has exhausted all remedies provided by existing 
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  review  of  the  evidence  of  record  and  applicant's 
submission, we are not persuaded that his BCD should be upgraded. 
His  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.  We  therefore 
agree with  the  recommendations of  the Air  Force  and  adopt  the 
rationale  expressed  as  the  basis  for  our  decision  that  the 
applicant has failed to  sustain his burden that he has suffered 
either  an  error  or  an  injustice. 
Therefore,  we  find  no 
compelling basis to recommend granting the relief sought. 

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 3  December 1998, under the provisions of Air 
Force Instruction 36- 2603: 

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AFBCMR 94-03455 

Mrs. Barbara A. Westgate, Panel Chair 
Dr. Gerald B. Kauvar, Member 
Ms. Rita J. Maldonado, Member 
Mrs. Joyce Earley, Examiner  (without vote) 

The following documentary evidence was considered: 

Exhibit A.  DD Form 149, dated 4 Feb 97, w/atchs. 
Exhibit B.  Applicant's Master Personnel Records, 
Exhibit C.  Letter, AFLSA/JAJM, dated 29 Apr 97. 
Exhibit D.  Letter, BCMR Medical Consultant, dated 7 J u l   97. 
Exhibit E.  Letter, AFPC/DPPD, dated 11 Sep 97. 
Exhibit F.  Letter, AFBCMR, dated 6  Oct 97. 

'BARBARA  A. W E S T G A ~  
Panel Chair 

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