RECORD OF PROCEEDINGS
         AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS


IN THE MATTER OF:      DOCKET NUMBER:  BC-2002-01786
            INDEX CODES:  108.00, 131.09

            COUNSEL:  NONE

            HEARING DESIRED:  NO

_________________________________________________________________

APPLICANT REQUESTS THAT:

His records be corrected to reflect that he was medically  retired  in
the grade of technical sergeant, the highest grade he held in the  Air
Force, with a disability rating of 75 percent.

_________________________________________________________________

APPLICANT CONTENDS THAT:

The medical problems he suffered had a very serious impact on him  and
compromised his ability to think and function normally.

His demotions were done improperly and were legally insufficient.

In support of his appeal,  the  applicant  provided  several  personal
statements, extracts from  his  military  personnel  records,  medical
documentation, and other documents associated with  the  matter  under
review.

Applicant’s complete submission, with attachments, is at Exhibit A.

_________________________________________________________________

STATEMENT OF FACTS:

Applicant enlisted in the Regular Air Force on 8 Mar 74 for  a  period
of four years in the grade of airman.   Prior  to  the  matters  under
review, he was  progressively  promoted  to  the  grade  of  technical
sergeant.

Applicant’s  Airman/Enlisted  Performance  Report  (APR/EPR)   profile
follows:

      PERIOD ENDING    EVALUATION

       8 Nov 74        7
       8 Nov 75        8
      13 Apr 76        8
      13 Apr 77        8
      28 Oct 77        6
       9 Mar 78        8
       9 Mar 79        7
      14 Dec 79        8
      14 Dec 80        8
       1 Aug 81        8
      23 Jul 82        7
      23 Jul 83        8
      23 Jul 84        8
      23 Jul 85        8
      25 Jan 86        8
      25 Jan 87        9
      26 Oct 87        8
      26 Oct 88        9
      26 Oct 89        8
       1 Jun 90        4 (EPR)
       8 Dec 90        3
       8 Dec 91        2
       8 Sep 92        1

On 12 Dec 74, the  applicant  received  nonjudicial  punishment  under
Article 15 for failure to go at the time prescribed to  his  appointed
place of duty on 5 Dec 74.  He was reduced to  the  grade  of  airman,
which was suspended until 11 Apr 75.

On 31 Mar 75, he received an  Article  15  for  being  absent  without
authority from 9 Mar 75 until 11 Mar 75.  He was ordered to perform 14
days of extra duty.

On 22 Sep 77, he received an Article 15 for failure to go at the  time
prescribed to his appointed place of duty on 6 Sep 77.  He was reduced
to the grade of airman first class, which was suspended.

On 29 Aug 83, he received an Article 15 for failure to go at the  time
prescribed to his appointed place of  duty  on  10  Aug  83.   He  was
ordered to forfeit $100.00 of his pay for one month and reduced to the
grade of sergeant, which was suspended until 15 Feb 83.

On 13 Mar 92, he received an Article 15 for failure to go at the  time
prescribed to his appointed place of duty and making a false  official
statement on 3 Mar 92.  He was reduced to the grade of staff sergeant,
which was suspended until 13 Sep 92, and ordered to perform 45 days of
extra duty.

On 19 May 92, the suspended reduction to the grade of  staff  sergeant
was vacated because the applicant, on divers occasions, failed  to  go
at the  time  prescribed  to  his  appointed  place  of  duty  between
12 Apr 92 and 9 May 92; and, because he unlawfully  altered  a  public
record on 19 Apr 92.  He was reduced to the grade  of  staff  sergeant
with a date of rank (DOR) of 13 Mar 92.

On 1 Sep 92, the applicant received an Article 15 for failure to go at
the time prescribed to his appointed place of duty and being  derelict
in the performance of his  duties  in  that  he  failed  to  open  the
dormitory office on 18 Aug 92.  He was reduced to the grade of  senior
airman and restricted to the base for 60 days.

On 30 Jul 93, he received an Article 15 for failure to go at the  time
prescribed to his appointed place of duty on 13 Jul 93 and 22 Jul  93.
He was reduced to the grade of airman first class, which was suspended
until 29 Jan 94, restricted to the base for 14 days,  and  ordered  to
perform 14 days of extra duty.

On 1 Dec 93, the suspended reduction to  the  grade  of  airman  first
class was vacated because the applicant  failed  to  go  at  the  time
prescribed to his appointed place of  duty  on  16  Nov  93.   He  was
reduced to the grade of airman first class with a DOR of 30 Jul 93.

On 17 Nov 93, the Secretary of the Air Force found that the  applicant
served satisfactorily in the higher grade of technical sergeant within
the meaning of Section 8964, Title 10, United States Code and directed
his advancement to that grade on the Retired List effective  the  date
(10 Mar 04) of completion of all required service (30 years  as  of  9
Mar 04).

On 31 Mar 94, the applicant was relieved from active duty and  retired
for length of service, effective 1 Apr 94,  in  the  grade  of  airman
first class.  He was credited with 20 years and 21 days of active duty
service.

On  19  Sep  95,  the  Board  considered  and  denied  an  application
pertaining to the applicant, in which he requested that his records be
corrected to reflect retirement in the highest grade held (TSgt); and,
that the present projected advancement date of 10 Mar 04 be reduced to
the present (Exhibit C).

An Aug 98 DVA Rating Decision  granted  the  applicant  a  20  percent
disability rating for degenerative disc disease, and  10  percent  for
plantar keratosis.  The decision rated his history of chronic  anxiety
and depression at  zero  percent,  his  achalasia  status  post-Heller
esophagomyotomy with hiatal hernia at zero percent, and his history of
bilateral inguinal hernia repair at zero percent.

The remaining  relevant  facts  pertaining  to  this  application  are
contained in the letters prepared by the appropriate  offices  of  the
Air Force.

_________________________________________________________________

AIR FORCE EVALUATION:

The Medical Consultant recommended denial indicating that there was no
evidence that any of the applicant's medical conditions were unfitting
for continued military service, even during the  final  12  months  of
service (the period of presumption of fitness), and should  have  been
evaluated through the Air Force Disability  Evaluation  System  (DES).
In his view, the action and disposition in this case were  proper  and
equitable  reflecting  compliance  with  Air  Force  directives   that
implement the law.  The Medical Consultant was of the opinion that  no
change in the records was warranted based on medical factors.

A complete copy of the Medical Consultant’s evaluation is  at  Exhibit
C.

AFPC/DPPD recommended  denial  indicating  that  the  purpose  of  the
military DES is to maintain a fit and vital  force  by  separating  or
retiring members who are unable to perform the duties of their office,
grade, rank, or rating.  Those members who are separated or retired by
reason of a physical disability may be eligible for certain disability
compensation.  The decision to process a member through  the  military
DES is determined by a Medical Evaluation Board (MEB) when he  or  she
is  determined  medically  disqualified  for  military  service.   The
decision to conduct an MEB is made by the medical  treatment  facility
providing health care to the member.

Although the veteran’s service records reflected that he  was  treated
for various medical conditions throughout his military career, none of
these conditions were considered serious or grave  enough  to  warrant
the initiation of an MEB.  The above information was confirmed in  his
retirement physical conducted on 24 Nov 93, which corroborated he  was
capable of overcoming the presumption of fitness during his last  year
of active service, and that he was reasonably  capable  of  performing
his military duties right up until the time  of  approved  retirement.
In other words, his military career was not curtailed as a  result  of
any medical condition.

AFPC/DPPD stated that veterans who acquire  service-connected  medical
conditions while on active duty and who are subsequently discharged or
retired are eligible for treatment and compensation by the DVA.  It is
essential that individuals understand the difference between Titles 10
and 38, United States Code (USC).  The Air Force  and  DVA  disability
systems operate under two separate laws.  Under the Air  Force  system
(Title 10, USC), Physical Evaluation Boards (PEB) must determine if  a
medical condition renders a member unfit for duty.  The  fact  that  a
person may have a medical condition does not automatically  mean  that
the condition is unfitting for  continued  military  service.   To  be
unfitting, the medical condition  must  be  such  that  it  by  itself
precludes the member from fulfilling the purpose for which he  or  she
is employed.  If the PEB renders a finding of unfit, the law  provides
appropriate compensation due  to  the  premature  termination  of  the
member’s career.  Air Force disability boards, under the provisions of
military disability laws and policy, can only rate  unfitting  medical
conditions based upon the individual’s medical status at the  time  of
his or her evaluation; in essence, a snapshot of  their  condition  at
that time.  The  DVA,  however,  is  chartered  to  provide  continual
medical care to veterans once they depart active  duty.   Under  Title
38, USC, the DVA may increase or decrease a member’s service-connected
disability rating based on the seriousness of  the  medical  condition
throughout  his  or  her  life  span.   Because   of   the   different
restrictions imposed by the two laws, sometimes the Services  and  DVA
disability ratings may not always agree.

Having completed their examination of the files,  AFPC/DPPD  indicated
that they could find no reasons why the applicant's records should  be
corrected to reflect  his  retired  grade  as  a  technical  sergeant.
Documentation in his  military  records  clearly  reflected  that  the
punitive actions leading to his demotions were well within the purview
of the commander’s authority,  in  addition  to  being  found  legally
sufficient.  The medical aspects of this case were fully explained  by
the Medical Consultant and they agreed with his advisory.

A complete copy of the AFPC/DPPD evaluation is at Exhibit D.

_________________________________________________________________

APPLICANT'S REVIEW OF AIR FORCE EVALUATION:

Copies of the Air Force evaluations were forwarded to applicant on  25
Oct 02 for review and response.  As of this date, no response has been
received by this office (Exhibit E).

_________________________________________________________________

ADDITIONAL AIR FORCE EVALUATION:

AFLSA/JAJM recommended denial indicating that the applicant’s argument
that  his  medical  conditions  should  result   in   overcoming   the
circumstances which led to the imposition of  Article  15  punishments
was without merit.

According to AFLSA/JAJM, unless it can be shown that  the  commander’s
findings  regarding  the  Article  15's  were  either   arbitrary   or
capricious, they should not be disturbed.  No such evidence exists  to
indicate that the commander acted arbitrarily.  In fact, the applicant
was given an opportunity to overcome his initial misconduct  when  the
commander suspended his punishment  following  the  first  nonjudicial
punishment.  The applicant chose to engage in the same misconduct soon
thereafter, knowing full well the consequences of his actions.

Additionally, AFLSA/JAJM stated that unless it can be shown  that  the
medical  evaluations  that  were  conducted  were  inaccurate   and/or
incomplete, they  should  not  be  disturbed  and  they  defer  to  HQ
AFPC/DPPD regarding these  issues.   When  evidence  of  an  error  or
injustice is missing, it  is  clear  that  the  BCMR  process  is  not
intended to simply second-guess the appropriateness of  the  judgments
of field commanders.  In the case of nonjudicial punishment,  Congress
(and the Secretary  via  AFI  51-202)  has  given  the  commander  the
authority to determine the appropriate forum  to  address  misconduct.
Once a commander determines nonjudicial punishment is the  appropriate
forum, the accused can reject the nonjudicial  punishment  and  demand
trial by court-martial.  If the accused accepts and later appeals, the
appellate authority can set aside the nonjudicial punishment.  So long
as they are lawfully acting within the scope of authority granted them
by law, the judgment of the commander and appellate  authority  should
not be disturbed just because others might disagree.   Commanders  “on
the scene” have first-hand access to facts and a  unique  appreciation
for the needs of morale and discipline in their command that even  the
best intentioned higher headquarters cannot match.  In this case,  the
applicant accepted  the  nonjudicial  punishment  forum  and  did  not
appeal.  He argues now that his medical condition was such that at the
time of the imposition of Article 15 punishment, he was  not  fit  for
duty  to  begin  with  because  of  alleged  serious  medical  issues.
Subsequent  medical  evaluations,  however,  do   not   support   this
contention.

In AFLSA/JAJM's view, a set aside should  only  be  granted  when  the
evidence demonstrates an error or a clear injustice.  The basis of the
applicant’s request for relief was  insufficient  to  warrant  setting
aside the Article 15 actions, was insufficient for granting a  request
for  medical  disability  retirement,  and  did  not  demonstrate   an
equitable basis for relief.  The applicant has provided no evidence of
a clear error or  injustice  related  to  the  nonjudicial  punishment
actions or the denial of his claim for medical disability retirement.

A complete copy of the AFLSA/JAJM's evaluation is at Exhibit G.

_________________________________________________________________

APPLICANT'S REVIEW OF ADDITIONAL AIR FORCE EVALUATION:

A copy of the Air Force evaluation was forwarded to  applicant  on  21
Mar 03 for review and response.  As of this date, no response has been
received by this office (Exhibit H).

_________________________________________________________________

THE BOARD CONCLUDES THAT:

1.  The applicant has exhausted all remedies provided by existing  law
or regulations.

2.  The application was not  timely  filed;  however,  it  is  in  the
interest of justice to excuse the failure to timely file.

3.  Insufficient relevant evidence has been presented  to  demonstrate
the  existence  of  error  or  injustice.   We  took  notice  of   the
applicant's complete submission in judging the  merits  of  the  case;
however, we agree with the opinions and  recommendations  of  the  Air
Force  offices  of  primary  responsibility  (OPRs)  and  adopt  their
rationale as the basis for our conclusion that the applicant  has  not
been the victim of an error or  injustice.   The  evidence  of  record
indicates  that  the  applicant  committed  several   offenses   which
ultimately resulted in his reduction in grade from technical  sergeant
to airman first class.  No evidence has  been  presented  which  would
lead us to believe that the  information  used  as  a  basis  for  the
applicant's  demotions  were  erroneous,  or,  that  at  time  of  his
separation from active duty, he was unfit to perform the duties of his
rank and office, within the meaning  of  the  law.   In  view  of  the
foregoing, and in the absence of sufficient evidence to the  contrary,
we find no compelling basis to recommend granting the relief sought in
this application.

_________________________________________________________________

THE BOARD DETERMINES THAT:

The  applicant  be  notified  that  the  evidence  presented  did  not
demonstrate the existence of 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 AFBCMR Docket Number BC-
2002-01786 in Executive Session on 13 May 03, under the provisions  of
AFI 36-2603:

      Mr. Michael K. Gallogly, Panel Chair
      Mr. John B. Hennessey, Member
      Mr. E. David Hoard, Member

The following documentary evidence was considered:

    Exhibit A.  DD Form 149, dated 4 Jun 02, w/atchs.
    Exhibit B.  Applicant's Master Personnel Records.
    Exhibit C.  Record of Proceedings, dated 19 Sep 95, w/atchs.
    Exhibit D.  Letter, Medical Consultant, dated 23 Sep 02.
    Exhibit E.  Letter, AFPC/DPPD, dated 21 Oct 02.
    Exhibit F.  Letter, SAF/MRBR, dated 25 Oct 02.
    Exhibit G.  Letter, AFLSA/JAJM, dated 4 Mar 03.
    Exhibit H.  Letter, AFBCMR, dated 21 Mar 03.



                                   MICHAEL K. GALLOGLY
                                   Panel Chair