RECORD OF PROCEEDINGS
             AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS

IN THE MATTER OF:      DOCKET NUMBER:  BC-2002-02512
                             INDEX CODE:  110.00

      APPLICANT        COUNSEL: None

      SSN                    HEARING DESIRED: No

_________________________________________________________________

APPLICANT REQUESTS THAT:

His bad conduct discharge (BCD) be upgraded.
_________________________________________________________________

APPLICANT CONTENDS THAT:

His discharge was not processed in accordance  with  regulation.   His
complete medical records were not made available to the court.  He was
never informed that he was diagnosed as  a  Psychopath.   He  was  not
given an opportunity to comment on his appeal of his BCD, nor  was  he
informed of the court’s decision.

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

EXAMINER’S NOTE:  The applicant submitted three DD Forms 149, dated 29
July 2002, Undated and 7 November 2002.

_________________________________________________________________

STATEMENT OF FACTS:

Applicant enlisted in the Regular Air Force on  8  March  1973  for  a
period of four (4) years as an airman basic.

Throughout his military career the  applicant  received  four  Article
15s, and was tried by special and general court-martials.

The  applicant  was  discharged  on  10  July  1975  with  a   service
characterization of other  than  honorable  conditions  discharge  and
issued a DD Form 259AF - Bad Conduct Discharge.  He served a total  of
two years, four months and three days of active duty service.  He  had
108 days of lost time.

The remaining relevant facts pertaining to this application, extracted
from the applicant's military records, are contained  in  the  letters
prepared by the appropriate offices of the Air Force.

Pursuant to the Board’s request, the Federal Bureau of Investigation,
Washington, D.C., provided an investigative report which is  attached
at Exhibit C.

_________________________________________________________________

AIR FORCE EVALUATION:

AFLSA/JAJM states the applicant’s mental health was  a  central  issue
during his court-martial.  During the trial the applicant fainted  and
was taken to the VA hospital for neurological and psychiatric testing.
 While undergoing testing the applicant left the hospital  twice  with
out permission.  On 31 July 1974, he was taken to the  medical  center
at Wright-Patterson AFB for diagnosis and treatment.  A  sanity  board
was convened and the board found the applicant was  suffering  from  a
character  and  behavior   disorder   diagnosed   as   an   antisocial
personality.  The board determined at the time of the alleged offenses
the applicant was free from mental defect, disease or derangement, and
was able to distinguish right from wrong and to adhere to  the  right.
The board also determined the applicant  possessed  sufficient  mental
capacity to understand the nature of the proceedings and cooperate  in
his defense.

The applicant, before and after the court-martial, felt, if discharged
his character of service should be honorable.  However, his  chain  of
command  felt  different.   His  commander  stated,  “Throughout   his
association with him (applicant), his behavior has  been  consistently
counterproductive.”  The First  Sergeant  added,  the  applicant  “has
displayed  a  very  negative  attitude  toward  his  supervisors   and
superiors”  and  that  “counseling  sessions,  letters  of  reprimand,
control roster action and  disciplinary  actions  have  little  or  no
effect on him.”  The applicant’s duty supervisor noted the applicant’s
“bearing and behavior, both on and off duty is a discredit to  himself
and the Air Force.”  His  correction  officer  stated,  “his  military
bearing has been almost nonexistent and his conduct has been far below
acceptable standards….I  cannot  place  any  trust  in  this  airman.”
Finally, the chaplain stated, “It seems to me that the  sum  total  of
charges for which the applicant was found guilty would warrant  a  far
greater sentence than has been handed down  by  the  Court”  and  “his
future value to the Air Force is almost nil.”  The applicant was asked
if he was satisfied with his Defense Counsel’s representation and  the
manner in which the trial was conducted  and  he  replied  he  had  no
arguments about the trial.  Furthermore the applicant did  not  desire
to participate in the retraining program.

The convening authority disapproved some of the findings of guilt  and
was required  to  reassess  the  sentence.   The  convening  authority
approved the sentence as adjudged.  This was a  proper  action  within
the discretion of the convening authority.  After
some of the findings were disapproved, the maximum punishment remained
the jurisdictional limit of a special court-martial.  Considering  the
applicant’s previous special court-martial  conviction,  Article  15s,
and lack of rehabilitation potential, the sentence including  the  bad
conduct discharge, was appropriate.

The applicant requested and was assigned counsel to represent  him  in
his appeal to the Air Force Court of  Military  Review  (AFCMR).   The
communications between the appellate defense counsel and  the  accused
are not normally made  part  of  the  record.   At  the  time  of  the
applicant’s appeal, the defense counsel was required  to  only  submit
issues that counsel deemed meritorious.   The  applicant’s  allegation
that certain medical records should have been introduced at trial  and
on appeal has no merit.  Only one document in the  applicant’s  record
mentioned a preliminary diagnosis of  “psychopathic  behavior.”   This
was in addition to the diagnosis of personality disorder, which was  a
single diagnosis reached by the psychiatrists at the  medical  center.
Evidence of psychopathy is considered an aggravating factor and  would
have been damaging to the applicant’s  sentencing  case  and  probably
resulted in a less favorable sentence.

AFLSA/JAJM further states that while clemency is an option,  there  is
no reason for the Board to exercise clemency in the applicant’s  case.
The applicant was not diagnosed as a psychopath.   The  court-martial,
convening  authority  and   the   appellate   court   considered   his
psychological diagnosis, as well as other mitigating  evidence.   Each
determined  the  sentence  including  the   bad   conduct   discharge,
appropriately  characterized  the  applicant’s  military  service  and
crimes.  The applicant did not serve honorably and it would be  unjust
to change his characterization to one that hundreds  of  thousands  of
airman, who have served  honorably,  carry.   The  applicant  has  not
presented sufficient evidence to warrant upgrading his  discharge  and
therefore they recommend the requested relief be denied.

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

The  Chief  Medical  Consultant,  AFBCMR,  states  the  applicant  was
diagnosed   with   Anti-Social   Personality   Disorder   (the    term
“psychopathic”  is  defined  as  anti-social)  and  the  sanity  board
determined the applicant was capable of  knowing  and  choosing  right
from wrong, and was responsible for his behavior and  was  capable  of
understanding and cooperating with his legal proceedings.

The Medical Consultant further states personality disorders are not  a
disease, but a lifelong pattern of maladjustment in  the  individual’s
personal structure which are not medically disqualifying or  unfitting
but may render the individual unsuitable for further military  service
and could be a cause for
administrative or disciplinary action by the unit commander for either
misconduct or unsuitability.

The Medical Consultant believes the  action  and  disposition  of  the
applicant’s case were proper and equitable,  and  in  accordance  with
applicable Air Force directives that implement the law.  Based on  the
rationale provided, the Medical Consultant  recommends  the  requested
relief be denied.

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

_________________________________________________________________

APPLICANT'S REVIEW OF AIR FORCE EVALUATION:

Copies of the Air Force evaluations and the FBI report were  forwarded
to the applicant on 4 April 2003 and 23 May  2003,  respectively,  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 not timely filed;  however,  it  is  in  the
interest of justice to excuse the failure of timely file.

3.    Insufficient relevant evidence has been presented to demonstrate
the existence of error or injustice.  After thoroughly  reviewing  the
evidence or record, we find no evidence to show that  the  applicant’s
discharge as a result of his conviction by court-martial was erroneous
or unjust.  The applicant’s contentions are duly  noted,  however,  he
has not submitted persuasive evidence to  support  these  contentions.
Therefore, we agree with the opinions and recommendations of  the  Air
Force offices of primary responsibility and adopt their  rationale  as
the basis for our conclusion that  the  applicant  has  not  been  the
victim of either an error or an injustice.  Therefore, in the  absence
of 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-
2002-02512 in Executive Session on 10 June 2003 under  the  provisions
of AFI 36-2603:

              Mr. Richard A. Peterson, Panel Chair

              Mr. Christopher Carey, Member

              Mr. Gregory A. Parker, Member

The following documentary evidence was considered:

   Exhibit A.  DD Form 149, dated 20 Nov 02, w/atchs.
   Exhibit B.  Master Personnel Records.
   Exhibit C.  FBI Report.
   Exhibit D.  Letter, AFLSA/JAJM, dated 16 Dec 02.
   Exhibit E.  Letter, AFBCMR Medical Consultant, dated
               14 Mar 03.
   Exhibit F.  Letter, SAF/MRBR, dated 4 Apr 03.
   Exhibit G.  Letter, AFBCMR, dated 23 May 03.




                                        RICHARD A. PETERSON
                                        Panel Chair