. 

AIR FORCE 

IN THE MATTER OF: 

RECORD OF PROCEEDINGS 

BOARD FOR CORRECTION OF MIL TARY RECORDS 
F'EB 1 8  7999 

DOCKET NUMBER: 9 7 - 0 3 4 3 3  
COUNSEL:  None 

HEARING DESIRED:  Yes 

APPLICANT REOUESTS THAT: 

The punishment imposed upon him under Article 15, Uniform Code of 
Military Justice  (UCMJ), on 19 August  1 9 9 6   be set aside and his 
grade of technical sergeant be  restored to its original date of 
rank  (DOR) of 1 January 1995. 

APPLICANT CONTENDS THAT: 

The  Article  15  should  never  have  been  imposed  as  he  was  not 
mentally  stable  during  this  period.  He  experienced  marital 
problems,  started  drinking,  and  suffered  from  an  undiagnosed 
medical  condition  (hypomanic bipolar  disorder). He  should have 
been directed to the mental health clinic instead of being given 
an Article 15 for two charges of drinking. He was very ill at the 
time but  since he was so new to Germany no one could see how he 
had  changed.  His  commander  told  him  that  based  on  his  past 
performance  his  rank  would  be  reinstated  if  he  stayed  out  of 
trouble; however, he was reassigned before this could happen. 

In support, he provides portions of his medical records. 

Applicant's complete submission is attached at Exhibit A. 

STATEMENT OF FACTS: 

Applicant enlisted in the Regular Air Force on 6  October 1 9 8 2 .   He 
was ultimately promoted to the grade of technical sergeant with a 
DOR  of  1 January  1995. 
he  period  in  question  (Article 
15), he  was 
Accounting  &  Finance  Squadron 
(26AFS) at 

Durin* the 
E, as a financial specialist. 

it  commander referred the applicant 
Mental  Health  Clinic  (MHC)  for 
f alcohol abuse problem and family 
conflict  issues.  Applicant  was  referred  to  the  Alcohol 
Rehabilitation Center ( A R C )   on 26 September 1 9 8 9 .  
On  18 July  1990, the  Enlisted  Performance Report  (EPR) closing 
16 June 1 9 9 0   was referred to the applicant for unacceptable off- 

duty  conduct  [not  s p e c i f i e d ] .   The  overall  rating  was  1 1 3 . 1 1  
Applicant  did  not  provide  comments.  This was  the  first  report 
under  the  rlnewll evaluation system.  Reports  prior  to  this  one 
were under the rroldll system and all reflect the highest overall 
ratings  of  rr9.11 Subsequent  to  this  referral  EPR,  all  of  his 
reports reflect the highest overall ratings of  r r 5 . 1 1  All of the 
performance  reports,  including  the  referral, contain extremely 
laudatory  comments  with  respect  to  the  applicant's  duty 
performance, professional qualities and character. 

A  19  July  1996  Substance Abuse  Element  medical  entry  reflects 
that  applicant  was  seen  for  an  alcohol  evaluation  due  to  an 
alcoholic  incident  on  13  July  1996.  Diagnosis  was  deferred 
pending  further  evaluation.  A  24  July  1996  follow-up  entry 
indicates the incident involved a fight with a German national; 
no charges; no blood  alcohol test  taken. Applicant was seen in 
the  MHC  that  same  day  and  given  a  provisional  diagnosis  of 
alcohol abuse/marital problems. 

On 13 August  1996, the applicant was notified of his commander's 
intent to impose nonjudicial punishment on him for incapacitation 
for  duty  through  prior  overindulgence  in  alcohol  on  5  and 
8 August  1996, in violation of Article  134, UCMJ. On 16 August 
1996, the applicant acknowledged that  he understood his rights, 
had  consulted a  lawyer, waived his right to be  tried by court- 
martial, and desired to make a personal and written presentation. 
On  19  August  1996, the  commander  determined  the  applicant  had 
committed the offenses cited and imposed punishment consisting of 
a  reduction  to  staff  sergeant  with  a  DOR  of  19  August  1 9 9 6 ,  
restriction to base for 4 5   days, performance of extra duties for 
45 days, and  a  reprimand. The  restriction and  extra  duty were 
suspended until 18 February 1997. 
On  21 August  1996, the AFOSI  began  investigating the  applicant 
for  alleged  wrongful  use/possession  of  controlled  substances 
[urinalysis w a s   positive] ,  housebreaking,  unlawful  entry,  and 
indecent assault. These violations apparently occurred over the 
period of 5-21 August 1996. 

The  applicant  was  admitted  to  the  ARC  a 
on 
27 August  1996. He  was  subsequently  tran 
tal 
Health  Unit  (MHU).  A  medical  report  dated  3 0   August  1996 
diagnosed  him  as  having  alcohol  dependence  with  physiological 
dependence. He was discharged from the MHU on  6 September 1996 
with  a  diagnosis  of  alcohol  and  nicotine  dependence, rule  out 
cannabis abuse, bipolar or cyclothymic disorder. 
The applicant's appeal of the Article 15 punishment was denied on 
11 September 1996. 

In  their  ongoing  investigation,  the  OS1  spoke  to  the  Staff 
on 17 September 
Medical Center, 
Psychiatrist at the 
1996. The doctor in 
"could not be absolutely sure  [the 
applicant]  suffered  from Manic  Depression because  he  never  had 

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97-03433 

. 

the chance to speak to  [the applicant] when  [ t h e  applicant] was 
absolutely  sober."  He  added  that,  due  to  the  fact  that  the 
applicant  possibly  drinks  because  of  his  depression  and  the 
depression is enhanced by his drinking, it would be impossible to 
treat one disorder without treating the other at the same time. 
1996, a  doctor with the Mental Health Flight at 
informed the OS1 that, although the applicant had 
most  symptoms of bipolar disorder, he was not diagnosed with it 
because  he  did  not  have  all  the  features of  the  disorder, and 
that  he  could be  considered as suffering from a manic  disorder 
not fitting a specific category. 

A  Narrative  Summary,  dated  2  October  1996,  indicated  the 
ad a history of prior ARC treatment  (1988- 
when he was drinking to cope with marital 
problems.  He  stopped  drinking  for  three -years while  attending 
Alcoholics Anonymous  (AA) and then began  %ocial"  drinking. His 
s  with 
drinking  remained  intermittent  for  a  period 
conscious control efforts until his remote tour in 
when he 
discovered  his  wife's  infidelity. He  attended  a 
SuDDort 
group while  there to help with depression. Upon reassignment to 
in June 1996, he discovered his wife's second infidelity 
n to drink. He had multiple alcohol related Droblems such 
as being drunk in public, missing appointments, and keceiving two 
Letters of Reprimand  (LORs) and an Unfavorable  Information File 
(UIF)  [these  documents  are  not  in  the  available  military 
personnel  records]. He  was  admitted  to  Inpatient Psychiatry at 
Landstuhl on 8 August  and again on 22 August  1996 for treatment 
of alcohol abuse and to rule out bipolar disorder. Prior to this 
he was noted to appear manic and would exhibit pressured speech, 
tangentiality  of  thoughts, disruptiveness  and  irritability. He 
tested  positive  for marijuana,  although  he  denied  its use. On 
31 August 1996, he was reported as AWOL and was found later that 
night  in  the  base  exchange.  He  was  transferred  to  Inpatient 
Psychiatry  from  ARC  where  he  c 
hypomania. He was  air-evacuated to 
on  12  September  1996  for further e 
discharged  from  the  hospital  on  30  September  1996. Diagnosis: 
Bipolar I disorder, single manic episode, moderate; onset August 
1996;  marked  impairment  for  military  service  and  considerable 
impairment for civilian industrial adaptability. 

L L  

He  was  readmitted  to 
inappropriate behavior 

on  10  October  1996  for  exhibiting 
hibiting symptoms of mania. 

October 1996, a Medical Evaluation Board  (MEB) convened at 
and  recommended  referral  to  a  Physical  Evaluation  Board 
(PEB) .  The diagnosis of  the MEB was: Bipolar I disorder, single 
manic  episode,  moderate.  Degree  of  impairment  for  military 
service was marked. 
Applicant  was  seen  by  a  staff  endocrinologist  at  WPAFB  f o r  
further evaluation of abnormal thyroid function tests. He appears 

3 

97-03433 

to have been placed on medication and was to have had additional 
tests in 6-8 weeks with a follow-up in six months. 
On 4 December 1996, the Informal PEB found him unfit for service 
because of the bipolar disorder and recommended he be placed on 
the  Temporary  Disability  Retirement  List  (TDRL)  at  30% 
disability.  The  applicant  concurred  with  the  findings  and 
recommendations. 
A 1 3   January 1997 Mental Health Clinic progress note reflects the 
applicant had been noncompliant with treatment, L e . ,  not taking 
medication  for  bipolar  disorder/hypothyroidism  and  drinking. 
Applicant  did  not  show  for  a  1 4   February  1997  follow-up 
appointment. 

In the  interim, on 24  February 1997, the  Secretary of  the Air 
Force  Personnel  Council 
(SAF/PC)  authorized  applicant's 
advancement to the grade of technical sergeant within the meaning 
of Title 10, USC,  Section 1212. 
Applicant was to be placed on the TDRL effective 10 May 1997 with 
a  3 0 %   rating.  However, based  on pending  court-martial charges 
(allegedly  writing  bad  checks,  driving  without  a  license, 
possessing  marijuana,  rape),  the  TDRL  order  was  rescinded  on 
19 March 1997. 
A Sanity Board was conducted at Keesler AFB during 1-7 May 1997; 
its Summary, dated 7 May 1997, reflected a diagnosis of Bipolar I 
disorder  without  psychosis.  Laboratory  data  indicated  his 
admission  thyroid  stimulating  hormone  (TSH)  was  slightly 
elevated. 

Ultimately,  a11  court-martial  charges  were  withdrawn  and 
dismissed  and  another  MEB/PEB  process  commenced  on  7  October 
1997. He was placed back on the TDRL effective 30 December 1997 
in  the  retired  pay  grade  of  technical  sergeant  with  a  30% 
disability rating. 

Applicant  is  currently  on  the  TDRL  and  is  scheduled  for  a 
periodic physical evaluation in April 1999. 

AIR FORCE  EVALUATION: 
The AFBCMR Medical  Consultant reviewed the appeal  and  indicates 
that the applicant's evaluation at WPAFB in September is specific 
in dating onset of his bipolar disorder to August  1996, yet his 
medical  records  show  that  he  was  referred  to  mental  health 
services on  19  July  1996  after  being  identified  in  an  alcohol 
incident the previous week, well before the stated onset of his 
disorder. He has  a long track record of alcohol problems dating 
back to at least 1989, and it was the alcohol abuse that brought 
about  his  demotion, not  the  symptoms and  signs associated with 

4 

97-03433 

his  subsequent bipolar  disorder diagnosis. He was  not  shown to 
have  a  psychiatric  disease  that  would  alter  his  ability  to 
distinguish right from wrong, and his abuse of alcohol cannot be 
attributed to his bipolar disorder. The Consultant opines that no 
change in the records is warranted.  He does recommend a thorough 
evaluation of the abnormality in the applicant's TSH test if this 
has  not  been  previously  accomplished,  as  the  potential  exists 
that there is a connection with development of his symptoms if he 
is  hypothyroid  [See Statement  of Facts  for  a d d i t i o n a l   i n f o   on 
this  i s s u e ] .  
A  copy  of  the  complete  Air  Force  evaluation  is  attached  at 
Exhibit C. 

The  Chief,  Physical  Disability  Division,  HQ  AFPC/DPPD,  also 
evaluated the case and provided  a background on the applicant's 
disability  retirement. 
The  Chief  found  no  error  in  the 
applicant's diagnosis nor any grounds to warrant  an early TDRL 
evaluation.  Applicant's  case  was  appropriately  processed  and 
rated.  He  was  afforded  all  rights  to  which  entitled  under 
disability law and policy. 

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

APPLICANT'S REVIEW OF AIR FORCE  EVALUATION: 
The  applicant  reviewed  the  evaluations  and  found  some  of  the 
facts and discussion topics very alarming. When he looks back at 
his mental state and behavior during July and August  1996 he was 
out of his mind, had no concerrf between what was right or wrong 
and didn't think about any consequences. His medical records show 
August  1996 as the onset of  his disorder but  in reality  it  was 
.  He  suggests the 
about six months  before  while he was  in 
advisory opinion authors get precise medi 
formation because 
they evidently don't know much if anything about this disease. He 
got  sick  due  to  the  circumstances  of  Korea  and  Germany,  his 
personal life, and not getting diagnosed and medicated sooner. 

Applicant's complete response is at Exhibit F. 

ADDITIONAL AIR FORCE EVALUATIONS: 

The Chief, Physical Disability Division, HQ AFPC/DPPD, provided 
an  explanation  as  to  why  the  MEB  periodically  refers  to  the 
applicant as a technical sergeant and what military pay grade he 
is  currently being  paid  while  on  the  TDRL. 
The  applicant  was 
correctly retired in the grade of technical sergeant. 

5 

97-03433 

. 

. 

A  copy  of  the  complete  additional  Air  Force  evaluation  is  at 
Exhibit G .  
The  Associate  Chief,  Military  Justice  Division,  AFLSA/JAJM, 
reviewed the appeal and notes the applicant does not contest the 
procedural aspects of his August 1996 Article 15 action nor does 
he  deny  that  he  committed the  offenses which  resulted  in  that 
action.  Review  of  his  record  indicates  prior  disciplinary 
problems, some involving alcohol abuse, dating back to 1988, well 
before the July-August 1996 period he now claims for the onset of 
his medical condition.  Given his disciplinary and alcohol record 
prior to and independent from the onset of the medical condition 
claimed  herein,  and  his  demonstrated  ability  to  function 
professionally  regardless  of  personal  extreme  stress,  it  is 
difficult to find support for his central contention that he was 
not sane, could not distinguish right from wrong  in August  1996 
and, but for mental illness, would not have committed the alcohol 
offenses  which  resulted  in  the  Article  15  Action  at  issue. 
Clearly, to whatever extent he suffered from a bipolar condition 
at the times he reported drunk for duty he was medically able to 
distinguish right from wrong and act accordingly. His failure to 
do so is not attributable to mental disease or defect but rather 
personal choice and bad judgment for which the applicant was and 
remains legally responsible. The author concludes that there are 
no  legal  errors  requiring  corrective  action  regarding  the 
nonjudicial  punishment  and  recommends  applicant's request  for 
vacation be denied. 

A  copy  of  the  complete  additional  Air  Force  evaluation  is  at 
Exhibit H. 

APPLICANT'S REVIEW OF ADDITIONAL AIR FORCE EVALUATIONS: 
Applicant reviewed the additional opinions and contends that t h e  
date of  onset/origin for his mental  disease  is August  1996.  He 
suggests  the  Board  contact  a  specific  doctor  of  psychiatry  at 
WPAFB  for a  first-hand medical  opinion about  him.  He  did  not 
have a long track record of alcohol problems. He got treatment in 
1988 but  remained sober and out of any trouble until he arrived 
in Germany, August  1996,  eight  years later. The use  of  alcohol 
was self-medication because he had no understanding of what was 
wrong with him, what  he was doing, or what  the  consequences of 
his  actions  would  be.  He wants  to  appear  before  the  Board  to 
provide insight into his difficulties. 

Applicant's complete response, with attachment, is at Exhibit J. 

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  review  of  the  evidence  of  record  and  applicant's 
submission,  we  are  not  persuaded  the  nonjudicial  punishment 
should be set and his grade of technical sergeant restored to its 
original DOR. 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. 
While  we  sympathize  with  the  applicant's marital  problems  and 
acknowledge  his  ultimate  diagnosis of  bipolar disorder, he  has 
not  provided  convincing  evidence  demonstrating  he  was  neither 
mentally nor legally responsible for the alcohol offenses which 
resulted  in  the  Article  15.  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 of having suffered either an error 
or  an  injustice.  In  view  of  the  above  and  absent  persuasive 
evidence  to  the  contrary,  we  find  no  compelling  basis  to 
recommend granting the relief sought. 

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 7 January 1999, under the provisions of AFI 
36-2603 : 

Mr. Thomas S. Markiewicz, Panel Chair 
Ms. Rita J. Maldonado, Member 
Ms. Peggy E. Gordon, Member 

The following documentary evidence was considered: 

7 

97-03433 

Exhibit 
Exhibit 
Exhibit 
Exhibit 
Exhibit 
Exhibit 
Exhibit 
Exhibit 
Exhibit 
Exhibit 

dated 15 Jan 9 8 .  

A. 
B. 
C. 
D. 
E. 
F. 
G. 
H. 
I. 
J. 

DD Form 1 4 9 ,   dated 25 Sep 9 8 ,   w/atchs. 
Applicant's Master Personnel Records. 
Letter, AFBCMR Medical Consultant, 
Letter, HQ AFPC/DPPD, dated 6 Feb 9 8 .  
Letter, AFBCMR, dated 16 Feb 9 8 .  
Letter, Applicant, dated 8  Mar 98,  w/atch. 
Letter, HQ AFPC/DPPD, dated 13 Jul 9 8 .  
Letter, AFLSA/JAJM, dated 16 Sep 9 8 .  
Letter, AFBCMR, dated 19 Oct 9 8 .  
Letter, Applicant, 2 1  Oct 9 8 .  

THOMAS S. MARKIEWICZ 
Panel Chair 

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