RECORD OF PROCEEDINGS
         AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS


IN THE MATTER OF:      DOCKET NUMBER:  98-01107
            INDEX CODE: 126.04, 131.09

            COUNSEL:  FRED L. BAUER

            HEARING DESIRED: YES


_________________________________________________________________

APPLICANT REQUESTS THAT:

a.    The punishment imposed upon him under Article 15,  Uniform  Code
of Military Justice (UCMJ), dated 26 January 1995, be set aside.

b.    The punishment imposed upon him under Article 15,  Uniform  Code
of Military Justice (UCMJ), dated 8 September 1995, be set aside.

c.    In the alternative, the two Article 15s be reduced to Letters of
Reprimand (LORs).

d.    The Officer Grade Determination (OGD) action be set aside.

e.    He be retired in the grade of lieutenant colonel.

_________________________________________________________________

APPLICANT CONTENDS THAT:

He should not have been retired in the grade of major as a result of a
grade determination action.

The applicant’s attorney states that the two  nonjudicial  punishments
served as a basis for an OGD  action.   Despite  recommendations  from
both his wing and MAJCOM commanders that he be allowed to  retired  at
his 0-5 (lieutenant colonel) pay grade, he was retired at 0-4  (major)
pay.  While the applicant was on active duty he voluntarily sought and
received mental health counseling.  It does not appear that a thorough
psychiatric evaluation was accomplished, and the full  extent  of  his
mental health  problems  was  not  fully  appreciated  by  the  people
involved in his disciplinary  actions.   The  Veterans  Administration
(VA) has  accomplished  what  probably  should  have  been  done  (and
considered) while he was on active duty.  They have awarded him
an 80% disability.  The seriousness of the applicant’s  mental  health
problems was not understood during the  processing  of  his  OGD.   It
shows that his actions that led to nonjudicial punishment,  and  which
were  totally  out  of  character,  were  undoubtedly  influenced   by
psychiatric difficulties  rather  than  any  intentional  flouting  of
authority  or  lack  of  discipline.   Even  without  this   important
mitigating  factor  being  known,  the  decision  to  deprive  him  of
important retirement benefits was a close  one;  as  previously  noted
both his wing and MAJCOM commanders recommended that he be allowed  to
retire in grade.  Accordingly, request the Board grant  the  applicant
his full retirement pay because of this new and  crucial  information,
as well as the reasons set out in his 22 February 1996 letter  to  his
commander.  The Board is aware of it’s authority in  a  case  of  this
nature under 10 USC 1552(b), and the service  Secretary  likewise  has
the legal authority to make the necessary records corrections.

In support of the appeal, applicant submits the VA decision; Air Force
Times Article, Dec 97; and official records.

Applicant's complete submission is attached at Exhibit A.

_________________________________________________________________

STATEMENT OF FACTS:

On 25 June 1976, the applicant was commissioned as a second lieutenant
in the United States Air Force and ordered to active duty.

On 1 November 1992, the  applicant  was  appointed  to  the  grade  of
lieutenant colonel.

The applicant received the following Article 15s:

(1)   On 26 January 1995, applicant was notified  of  his  commander's
intent to impose nonjudicial punishment  upon  him  for  violating  an
order on 17 January 1995 not to drive a motor vehicle on  Patrick  AFB
for a period of one year ending 24 October 1995.

On 6 February 1995, after consulting with  counsel,  applicant  waived
his right to a trial by court-martial, requested a personal appearance
and submitted a written presentation.

On 17 February 1995, he was found guilty by his commander who  imposed
the following punishment: A reprimand.

Applicant did not appeal the punishment.  The Article 15 was filed  in
his Unfavorable Information File (UIF).

(2)   On 8 September 1995, applicant was notified of  his  commander's
intent to impose nonjudicial punishment upon him for being absent from
his unit on or about 26 August 1995 and remained absent  until  on  or
about 30 August 1995.

On 18 September 1995, after consulting with counsel, applicant  waived
his right to a trial by court-martial, requested a personal appearance
and submitted a written presentation.

On 6 October 1995, he was found guilty by his  commander  who  imposed
the following punishment: a reprimand and forfeiture of $2,280.00  pay
per month for two months.

Applicant did appeal the punishment; however, the appeal was denied on
8 November  1995.   The  Article  15  was  filed  in  his  Unfavorable
Information File (UIF).  It was also  file  in  his  Officer  HQ  USAF
Selection Record/Officer Command Selection Record.

On 10 June 1996, as part of the retirement processing, a highest grade
determination was done by the Secretary of  the  Air  Force  Personnel
Council and it was  determined  that  the  applicant  had  not  served
satisfactorily in the grade of lieutenant colonel within  the  meaning
of  Section  1370(a)(1),  Title  10,  United  States  Code.   It   was
determined that the applicant did serve satisfactorily in the rank  of
major and directed he be retired in that grade.

On 1 July 1996, the  applicant  retired  for  sufficient  service  for
retirement in the grade of major.  He served a total of 20 years and 6
days of active service.

On 25 April 1997,  the  Veterans  Affairs  evaluated  the  applicant’s
disabilities at 70%  disabling  for  major  depressive  disorder  with
psychotic  features   and   10%   disabling   for   mild   spondylitic
spondylolisthesis lumbar spine.

_________________________________________________________________

AIR FORCE EVALUATION:

The Associate  Chief,  Military  Justice  Division,  Air  Force  Legal
Services Agency, AFLSA/JAJM, also reviewed this application and states
that the applicant has not raised any issues regarding his two Article
15s or any other military justice matters.   After  a  review  of  the
record, they find that the Military Justice Division is not the  forum
best positioned to address the OGD issue raised by the applicant.

A complete copy of their evaluation is attached at Exhibit C.

The Chief Medical Consultant, AFBCMR, reviewed  this  application  and
states that while there is no doubt the applicant  developed  job  and
marital-related stresses  in  his  last  two  years  of  service,  the
question is just how severely this impacted his duty  performance  and
whether or not he  should  have  been  considered  in  the  disability
evaluation system.   The  notations  from  his  mental  health  visits
between January 1995 and January 1996 indicated he was  continuing  to
function well with appropriate problem-solving  goals  and  direction.
Diagnoses   ranged   from   Obsessive-Compulsive   Disorder/rule   out
Dysthymia, to Occupational and Marital Problems.   It  must  be  noted
that  Major  Depressive  Disorder  was  not  diagnosed  prior  to  his
retirement.  His last Officer Performance Report, dated  6  May  1995,
continued to expound on his  superior  abilities  and  performance,  a
report that fails to relate any mental health  problems  to  declining
duty performance.  The hallmark of  a  disabling  physical  or  mental
problem  is  whether  or  not  that  problem   interferes   with   the
individual’s ability to perform any and all duties  commensurate  with
his office, grade  or  rating.   They  find  that  no  such  unfitting
condition existed prior to the applicant’s retirement even  though  he
had findings consistent with growing depression.  In spite of this, he
was able to perform his duties  in  an  exemplary  manner  and  mental
health providers found no unfitting condition upon which to  recommend
disability evaluation.  In fact, the recommendation from mental health
was to continue him on duty with anticipated improvement in  his  job-
related  stresses.   Nothing  can  be  found  that  substantiates  the
applicant's claim that he should have his OGD  overturned  to  restore
his previously held higher grade.  Review of medical records does  not
disclose any evidence to support correction of records from length  of
service retirement to disability retirement or to  override  the  OGD.
Title 10, USC, Chapter 61, is the federal  statute  that  charges  the
Service Secretaries with maintaining a fit and vital  force.   For  an
individual to be considered unfit, there must be a  medical  condition
so severe that it prevents performance of any work  commensurate  with
rank and experience.  Once this determination is made, (if, indeed, it
is made at all), namely that the individual is unfit,  the  degree  of
disability is based  upon  the  member’s  condition  at  the  time  of
permanent disposition and not upon possible future  events.   The  DVA
compensation system is governed under Title 38, USC  which  recognizes
that a medical condition  may  alter  an  individual's  lifestyle  and
future employability.  Under Title 38 the ratings awarded by  the  DVA
are often at variance with those awarded by the Air Force under  Title
10.  Evidence of record establishes beyond all reasonable  doubt  that
the applicant was properly diagnosed, found fit, that  retirement  for
length of service was appropriate, and that this mental state was  not
the driving force behind his disciplinary  infractions.   Evidence  of
record and medical  examinations  prior  to  retirement  indicate  the
applicant was fit and medically
qualified for continued military  service,  retention  or  appropriate
separation and he did not have any physical or  mental  defects  which
would have warranted consideration under the  provisions  of  AFI  36-
3212.  Retirement for length of service is proper  and  in  accordance
with Air Force directives which implement the law.  The  BCMR  Medical
Consultant is of  the  opinion  that  no  change  in  the  records  is
warranted and the application should be denied.  While  the  applicant
was diagnosed with major depression with  psychotic  features  shortly
after his retirement, such diagnoses were not in evidence at the  time
of his retirement.

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

The  Chief,  Retirements  Branch,   Directorate,   Personnel   Program
Management, AFPC/DPPRR, also reviewed this application and states that
the  applicable  statute  provides   for   Secretarial   determination
concerning satisfactory service and the Personnel Council,  on  behalf
of the  Secretary,  determined  that  the  applicant  had  not  served
satisfactorily in the  grade  of  lieutenant  colonel  –  that  agency
directed retirement in the grade of major.   No  error  or  injustices
occurred during the OGD processing.

A complete copy of their evaluation is attached at Exhibit E.

_________________________________________________________________

APPLICANT'S REVIEW OF AIR FORCE EVALUATION:

The applicant’s attorney reviewed the Air Force evaluations and states
the sole negative review is from the medical consultant.  The gist  of
this review seems to be that while the applicant has (and had) serious
mental health problems, he was able to do well enough in his job.  The
government is trying to have it both  ways.   On  one  hand  they  are
saying the applicant’s duty performance/service his last year  or  two
was unsatisfactory and, therefore, the OGD is justified.  On the other
hand they are saying his duty performance/service his last year or two
was satisfactory (even exemplary) and that, therefore,  he  could  not
have been mentally ill enough to warrant relief  from  the  OGD.   The
medical consultant is operating  under  a  handicap  not  of  his  own
making; he has never treated or even met the applicant and was limited
to the written  records  he  had  available  to  him.   Since  he  has
challenged their position on the applicant’s mental health during  his
last two years in service, they have obtained  a  statement  from  the
psychiatrist who treated him during this period and afterwards.   This
psychiatrist corrects a number  of  misconceptions  that  the  Board’s
medical  consultant  has.   Most  importantly,  he  admits  that   the
applicant was very difficult to
diagnose at first, but as he got to know  him  he  realized  that  the
applicant was suffering [during his last two  years  on  active  duty]
from “Major Depression with Psychotic features.”  He goes on  to  say;
“and the  initial  presentation  was  colored  by  his  rather  strong
intellectual and personal strengths.”  In other words,  the  applicant
was very ill but was  trying  very  hard  to  hide  it.   The  initial
prescription for Prozac was later changed  to  Respirdol,  a  stronger
anti-psychotic drug.  That second prescription has now been  increased
so that he is now getting triple the original dose.  This  illustrates
how difficult the diagnosis  was  and  how  an  extremely  bright  and
dedicated officer, but one whose  mental  health  was  in  significant
decline, can slow down a psychiatrist’s ability to understand what  is
really going on.  Please note the doctor’s observation that the course
of  the  applicant’s  illness  was  “insidious  and  profound.”    The
reviewers of his original OGD appeal did not have all the  information
about his condition.  Under the circumstances the right thing to do is
recognize that continued punishment cannot be justified.

In further support of his appeal, applicant submits a  statement  from
the Atlantic Psychiatric Center.  Dr. Beighley states that during  the
time of treatment immediately prior to  the  applicant’s  leaving  the
military, his presentation was indeed of  such  a  nature  to  make  a
diagnosis difficult.  As the AFBCMR  Medical  Consultant  points  out,
diagnoses included rules out Obsessive Compulsive Disorder, Dysthymia,
and Occupational and Marital Problems.  However, in retrospect, it  is
now clear that the applicant was suffering from Major Depression  with
Psychotic Features and the initial presentation was  strongly  colored
by  his  rather  strong  intellectual  and  personal  strengths.   His
presentation was definitely  atypical,  but  subsequent  data  clearly
shows that this diagnosis was correct.  The course of his illness  was
insidious and profound.

Applicant's  complete  response,  with  attachments,  is  attached  at
Exhibit G.

_________________________________________________________________

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 warranting setting  aside
the contested Article  15s  or  having  them  reduced  to  Letters  of
Reprimand (LORs).   Although  not  clearly  stated,  it  appears  that
counsel for the applicant has requested that the contested Article 15s
be deleted or at least reduce them
to LORs.  After reviewing the evidence of record, we found no evidence
that  the  contested  Article  15s  were  improper  or  an  abuse   of
discretionary authority.  Therefore, we find no basis  upon  which  to
recommend setting aside the Article 15s or reducing them to LORs.

4.    Sufficient relevant evidence has been presented  to  demonstrate
the existence of probable error or injustice warranting correcting the
applicant’s records to show that he served satisfactory in  the  grade
of lieutenant colonel pursuant to Title 10, USC, Section 1370(a);  and
that  he  retired  in  that  grade.    Notwithstanding   the   Board’s
determination considering the Article 15s, we believe the  failure  to
allow the applicant to retire in the grade of lieutenant  colonel  was
too harsh, and, therefore, unjust.  The evidence  of  record  reflects
that, subsequent to his receipt of the  Article  15s,  he  had  served
outstanding for 18 years.  In addition, we note the recommendations of
his superiors that he be allowed to retire in the grade of  lieutenant
colonel.  As a final matter, we note the calculation  that  retirement
in the lower grade resulted in  a  loss  of  approximately  $6,000  in
retired pay per year and approximately $180,000 over a  period  of  30
years.  Based on his overall record  of  performance  and  noting  the
recommendations from his commanders, we recommend that the applicant’s
record be corrected to  reflect  that  he  retired  in  the  grade  of
lieutenant colonel.

5.    The applicant's case is adequately documented  and  it  has  not
been shown that a personal appearance with  or  without  counsel  will
materially  add  to  our  understanding  of  the  issue(s)   involved.
Therefore, the request for a hearing is not favorably considered.

_________________________________________________________________

THE BOARD RECOMMENDS THAT:

The pertinent military records of the  Department  of  the  Air  Force
relating to APPLICANT, be corrected to show that:

      a.    The Secretary of  the  Air  Force  found  that  he  served
satisfactorily in the grade of lieutenant colonel within  the  meaning
of Section 1370(a)(1), Title 10, United States Code, and directed that
he be retired in that grade.

      b.    On 30 June 1996, he was  retired  from  active  duty  and,
effective 1 July 1996, retired for length of service in the  grade  of
lieutenant colonel.

_________________________________________________________________

The following members of the  Board  considered  this  application  in
Executive Session on 29 June 1999, under the  provisions  of  AFI  36-
2603:

            Mr. Robert W. Zook, Panel Chair
            Mr. Philip Sheuerman, Member
            Ms. Olga M. Crerar, Member
            Ms. Gloria J. Williams, Examiner (without vote)

All members  voted  to  correct  the  records,  as  recommended.   The
following documentary evidence was considered:

   Exhibit A.  DD Form 149, dated 30 Mar 98, w/atchs.
   Exhibit B.  Applicant's Master Personnel Records.
   Exhibit C.  Letter, AFLSA/JAJM, dated 1 Jul 98.
   Exhibit D.  Letter, BCMR Medical Consultant, dated 28 Jul 98.
   Exhibit E.  Letter, AFPC/DPPRR, dated 19 Nov 98.
   Exhibit F.  Letter, AFBCMR, dated 14 Dec 98.
   Exhibit G.  Counsel’s Response, dated 9 Mar 98, w/atchs.





                                   ROBERT W. ZOOK
                                   Panel Chair



AFBCMR 98-01107




MEMORANDUM FOR THE CHIEF OF STAFF

      Having received and considered the recommendation of the Air Force
Board for Correction of Military Records and under the authority of Section
1552, Title 10, United States Code (70A Stat 116), it is directed that:

      The pertinent military records of the Department of the Air Force
relating to APPLICANT  , be corrected to show that:

            a.   The Secretary of the Air Force found that he served
satisfactorily in the grade of lieutenant colonel within the meaning
of Section 1370(a)(1), Title 10, United States Code, and directed that
he be retired in that grade.

            b.   On 30 June 1996, he was retired from active duty and,
effective 1 July 1996, retired for length of service in the grade of
lieutenant colonel.




                 JOE G. LINEBERGER
                 Director
                 Air Force Review Boards Agency