RECORD OF PROCEEDINGS

         AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS


IN THE MATTER OF:      DOCKET NUMBER: 99-00538
                 INDEX CODE 129.04
                 COUNSEL:  None

                 HEARING DESIRED:  No
APPLICANT REQUESTS THAT:

His grade of captain be reinstated.

APPLICANT CONTENDS THAT:

He did not at  any  time  ask  or  make  reference  to  his  patients’
financial situation. He never solicited the sale of AMWAY products  at
work, in  the  clinic,  on  base  over  the  phone  or  in  person  to
subordinates,  peers  or  superiors.  He  never  took  a   [patient’s]
telephone  number  without  asking  and  obtaining  permission.    His
retirement in the grade of first lieutenant (1LT) rather than  captain
will  result  in  a  lifetime  fine  [loss  of  retirement   pay]   of
approximately $210,000. His medical problems  of  depression,  asthma,
hormonal imbalance, sleep  apnea,  chronic  pain  and  fatigue  had  a
significant impact on his ability to comply with body  fat  standards.
He admits he made a mistake in giving  out  his  business  card  after
completing all medical care with his patients. Only if  an  individual
agreed did he call to offer them the AMWAY business. He  accepted  the
Article  15  as  just  punishment   for   his   mistake.   He   served
satisfactorily in the grade of captain.

He provides a 7-page statement with 12 attachments, one  of  which  is
from a psychiatrist who is treating him for Major Depressive Disorder,
Recurrent, since 22 May 98. The psychiatrist indicates that treatments
for  the  applicant’s  medical/psychiatric  problems  are   known   to
contribute to weight gain and/or difficulty in weight control.

A copy of applicant's complete submission is attached at Exhibit A.

STATEMENT OF FACTS:

The applicant’s active duty includes enlisted  service  from  1975  to
1982,  when  he  served  as  a  medical  services  specialist.   After
graduating from the Air Force Physician Assistant School in  1982,  he
received his commission. His date of rank (DOR) as a  captain  was  16
Jul 88.

A 17 Feb 81 medical entry indicates the applicant was  overweight  and
put on a 1500 calorie reducing diet. A 15 Oct 82  entry  indicates  he
weighed 211 lbs. A 1 Feb 83 entry reflects he weighed 216 lbs and  his
ideal weight should have been 182.  He was placed  on  a  1200-calorie
diet. A 6 Mar 84 entry placed him on a  1200-calorie  diet  for  being
overweight at 214 lbs, and indicates he was “unable to control  weight
because of excessive calories intake, poor eating habits.”  A  12  Nov
86 entry reflects that he  attended  initial  dietary  counseling  for
being overweight and that his squadron was to monitor his weight  loss
progress.

The applicant was entered  into  Phase  I  of  the  Weight  Management
Program (WMP) on 10 Mar 89. At the time he weighed 220.5 lbs when  his
maximum allowable weight (MAW) was 191.5 lbs. He received a letter  of
counseling (LOC) on 2 Apr 90 and a letter of reprimand (LOR) on 2  Nov
90. A 21 Nov 90 mental health clinic entry indicated the applicant was
seen on 5 and 24 Oct 90 and 15 and 21 Nov 90 “due to episodic  periods
of overweight problems.” He received another LOR on 4 Feb 91, at which
point an unfavorable information file (UIF) was established and he was
placed on the control roster.

The applicant received verbal reprimands from the  commander  in  Aug,
Sep and Nov 91, and another LOR on 6 Jan 92.  At that time he  weighed
228 lbs with 33% bodyfat when the maximum allowed for his  height  and
age was 24%.  On 30 Mar 92, he was entered into Phase II weighing  217
lbs with 24% bodyfat.  In Nov 92, he reentered Phase I in Nov 92  with
a 32% bodyfat, was given a medical evaluation and an LOR.

Following unsatisfactory progress in the WMP, he received  three  more
LORs in Apr 93 and May 93. On  20  May  93,  the  Officer  Performance
Report (OPR) closing 31 May 93 was referred to him for  unsatisfactory
progress in the WMP.

The Promotion Recommendation Form (PRF) for the  Calendar  Year  1993B
(CY93B) Major Selection Board had an overall recommendation of “Do  No
Promote.”

The Air Force Office of Special  Investigation  (AFOSI)  conducted  an
investigation 18 Oct-8 Nov 93 into allegations of solicitation by  the
applicant in violation of Article 92, UCMJ. In  Jan  94,  he  received
another LOR; at the time he weighed 238.5 lbs with 28% bodyfat. On  16
Mar 94, he received  an  Article  15  from  his  group  commander  for
violating AFR 30-30 [Standards  of  Conduct],  dated  26  May  89,  by
wrongfully  using  inside  information  (home  telephone  numbers   of
patients) for personal  gain  on  or  about  9  and  30  Aug  93,  and
wrongfully  making  commercial  solicitations  of  AF   members,   his
patients, junior in grade to himself.  Punishment  was  forfeiture  of
$500 per month for  2  months  and  a  reprimand.  The  applicant  had
consulted counsel, waived his right to  trial  by  court-martial,  and
submitted a written presentation. He did not appeal the punishment.

According to the applicant’s statement at Exhibit A, he approached the
group commander sometime in May 94 about applying  for  the  Early-Out
Program.

On 26 Jul 94, the OPR closing 31 May 94 was referred to the  applicant
for not  meeting  professional  qualities,  specifically,  failure  to
maintain standards of the WMP and Standards of Conduct.

The last available WMP entry, 7 Sep 94, reflects a weight of 232  with
a 27% bodyfat.

On 25 Oct 94, the applicant was advised that he was considered but not
selected for promotion to the grade of major by the CY94A board, which
convened on 22 Aug 94.

A Board of  Inquiry  (BOI)  convened  on  11-12  Jan  95  to  consider
involuntary discharge against the  applicant  for  being  overfat  and
violating AFR 30-30. The BOI recommended the applicant  be  discharged
with a general discharge.

On 14 Apr 95, the Air Education  &  Training  Command  vice  commander
(AETC/CV) determined that the applicant was not afforded a full, fair,
and impartial hearing as required by AFR 36-2. He based  his  decision
on careful review of the BOI record, the Assignment of  Errors  letter
submitted by the applicant and  his  counsel,  and  the  legal  review
provided by HQ AETC/JA. The CV did not approve the findings of the BOI
and ordered a new BOI to be convened.

The applicant’s Promotion Recommendation  Form  (PRF)  for  the  CY95A
major board had a “Do No Promote” recommendation; consequently, he was
not selected by that  board  either.   As  a  result  of  this  second
nonselection, he had a mandatory retirement date of 1 Mar 96.

Another BOI was convened on 19 Jul 95 but problems arose at that board
when the government tried to amend the Statement of Reasons.  However,
on  31  Aug  95,  the  new  AETC/CV   advised   the   applicant   that
administrative discharge action  was  being  terminated  in  the  best
interests of  the  Air  Force  for  two  stated  reasons:  First,  the
unavoidable length of  the  discharge  action  and  second,  the  CV’s
understanding that the  applicant  was  retirement  eligible  and  had
requested to retire effective 1 Feb 96 with terminal  leave  to  begin
during Dec 95.  The CV added that, but for the cited reasons, he would
not  hesitate  to  seek  the  applicant’s  discharge  for   extensive,
documented weight  failures  and  proven  misconduct  [i.e.,  wrongful
solicitation of subordinates].

On 14 Sep 95, the applicant applied for  voluntary  retirement  to  be
effective 1 Feb 96, and it was approved on 14 Sep 95.

Special Orders No. AC-XXXXX, dated 25 Sep 95, directed that, effective
31 Jan 96, the applicant  would  be  relieved  from  active  duty  and
retired in the grade of captain effective 1 Feb 96.

A Narrative Summary dated 11 Oct 95 indicates the applicant was to  be
presented to a Medical Evaluation Board for a history of  mild  asthma
and severe sleep apnea.

On 1 Nov 95, the XXth Medical Operations  Squadron  (XXMOS)  commander
advised the applicant he was initiating an officer grade determination
(OGD) on the basis of applicant’s Article 15 misconduct, for suspected
continued solicitation, and failure in the  WMP.  After  notification,
the applicant provided a statement explaining his  problems  with  the
AMWAY solicitation and his weight. His counsel argued, in  part,  that
failure in the WMP should not be the basis for  an  unfavorable  grade
determination  and  that  the  Article  15  applicant   received   was
invalidated by the nullification of AFR 30-30 Feb 93.

On 3 Jan 96, the XXMOS commander recommended the applicant be  retired
in the grade of 1LT.

The XXth Flying Training  Wing  (XXFTW)  Staff  Judge  Advocate  (SJA)
reviewed the OGD package and on 22 Jan 96 recommended the applicant be
retired in the grade of 1LT. The XXFTW commander concurred on  25  Jan
96.

Following review on 29 Jan 96, the Chief, Military  Affairs  &  Claims
Directorate, HQ AETC/JAM, found  the  case  legally  sufficient.   The
Chief indicated, among other things, that counsel’s argument that  the
Article 15 is invalid because AFR 30-30 was abolished  in  Feb  93  is
without merit. The joint ethics regulation became effective on 30  Aug
93; AFR 30-30 ceased to exist as a general regulation  on  that  date.
AFR 30-30 was, however,  in  effect  during  the  time  the  applicant
illegally solicited subordinates and  obtained  telephone  numbers  by
reviewing  patients’  medical  records.  The  Article   15   correctly
referenced AFR 30-30 as the  underlying  regulation  violated  by  the
applicant. The Chief recommended applicant’s retirement as a 1LT.

On 29  Jan  96,  Special  Orders  AC-XXXXXX,  dated  25  Sep  95,  was
rescinded. Special Orders No. AC-XXXXXX, dated  29  Jan  96,  directed
that, effective 29 Feb 96, the applicant would be relieved from active
duty and retired effective 1 Mar 96 in  the  grade  of  captain.  This
order was amended by Special Orders AC-XXXXXX, dated  29  Feb  96,  so
that the grade reflected was 1LT rather than captain.

On 14 Feb 96, the AETC/CV recommended that the applicant be retired in
the grade of 1LT for inappropriate behavior and failure to conform  to
AF standards.

The Secretary of the Air Force Personnel  Council  (SAFPC)  considered
the case on 27 Feb 96,  unanimously  voted  to  find  the  applicant’s
service as a captain was not satisfactory for purposes  of  Title  10,
USC, 1370(a), and determined he should retire in  the  grade  of  1LT.
Both the applicant and his ADC provided statements that  included  the
contentions made in the AFBCMR appeal.

On 29 Feb 96, the SAF found the applicant did not serve satisfactorily
in the grade of captain and directed he be retired  in  the  grade  of
1LT.

The applicant was subsequently retired on 1 Mar 96 in the grade of 1LT
with 20 years, 1 month, and 18 days of active service.

The applicant currently has a Department  of  Veterans  Affairs  (DVA)
combined disability rating of 90% for, among other things, narcolepsy,
bronchial condition, and complete atrophy of the testis.

AIR FORCE EVALUATION:

The BCMR Medical Consultant indicates that the 22 Feb 99 letter from a
treating  physician  addresses  multiple  problems  which   supposedly
contributed to the  applicant’s  failures  in  the  WMP.  The  letter,
however, does not add materially new  or  substantive  arguments  that
haven’t previously been considered  in  the  lengthy  process  of  the
applicant’s previous appeals. These date back to at least Feb 80 [sic]
when he was seen for diet  counseling,  and  continue  throughout  the
remainder of his military years.  Many  of  the  alleged  contributory
medical conditions appeared long after he was identified as  having  a
weight problem. His weight problems  were  episodic,  and  there  were
intervals when he managed to lose appropriate amounts  of  weight  and
body fat in his program evaluations. Most telling  is  the  6  Mar  84
medical entry. Denial is recommended from a medical viewpoint.

A copy of the complete evaluation is at Exhibit C.

The Chief, Retirements Branch, HQ AFPC/DPPRR, indicates the procedures
to present the OGD package to SAFPC were proper and  no  documentation
appears in the applicant’s case file to support his claim that he  was
directed to retire. He initially applied for voluntary retirement  and
this request was subsequently approved. Denial is recommended.

A copy of the complete evaluation is at Exhibit D.

APPLICANT'S REVIEW OF AIR FORCE EVALUATION:

Complete copies of the evaluations were forwarded to the applicant  on
23 Aug 99 for review and comment within 30 days. As of this date, this
office has received no response.

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 grade of captain should be  restored.  Contrary  to
his allegations, his submission does not establish  that  his  medical
problems precluded his compliance with Air Force  standards,  that  he
was improperly subjected to an OGD, or that he was directed to retire.
He generally performed his medical duties satisfactorily while in  the
grade  of  captain;  however,  there  is  more  to  officership   than
performing the job well. In light of  the  “whole  man”  concept,  the
applicant’s gaining privileged  information  and  soliciting  patients
junior in grade to him for personal gain was an abuse of position  and
a violation of trust. His excessive periods of unsatisfactory progress
in the WMP are  indicative  of  his  failure  to  meet  standards  and
reflective of his unsatisfactory service.  In  addition,  his  medical
history does not explain his repeated failures in the WMP over such an
extended period of time. As a  health  care  provider,  the  applicant
surely was well aware  of  the  opportunity  to  establish  a  medical
profile indicating inability to  participate  in  the  WMP.  With  the
exception of a four-month period  in  1993,  such  profiles  were  not
established to account for his lack of progress. Further,  as  pointed
out  by  the  Medical  Consultant,  many  of   the   alleged   medical
contributors to the WMP failures appeared long after he was identified
as having a weight problem. He and his counsel provided statements for
SAFPC’s consideration, and his submission to this  Board  contains  no
evidence not already found unpersuasive. Consequently, we do not  find
his medical conditions to be mitigating factors in the OGD action. His
abuse of position and violation of trust, coupled  with  his  repeated
failures in the WMP, warranted the grade reduction.  In  view  of  the
above and absent persuasive evidence to
the contrary, the applicant has failed to sustain his burden of having
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 1 February 2000, under the provisions of AFI  36-
2603:

                  Mr. Terry A. Yonkers, Panel Chair
                  Mr. Philip Sheuerman, Member
                  Mr. George Franklin, Member

The following documentary evidence was considered:

   Exhibit A.  DD Form 149, dated 26 Feb 99, w/atchs.
   Exhibit B.  Applicant's Master Personnel Records.
   Exhibit C.  Letter, BCMR Medical Consultant, dated 2 Jun 99.
   Exhibit D.  Letter, HQ AFPC/DPPRR, dated 4 Aug 99.
   Exhibit E.  Letter, AFBCMR, dated 23 Aug 99.




                                   TERRY A. YONKERS
                                   Panel Chair