RECORD OF PROCEEDINGS
         AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS

IN THE MATTER OF:      DOCKET NUMBER:  BC-2002-04031
            INDEX CODE:  108.00

            COUNSEL:  NONE

            HEARING DESIRED:  YES

_________________________________________________________________

APPLICANT REQUESTS THAT:

His records be corrected to reflect his entitlements to benefits  that
he was denied because of his dismissal.

_________________________________________________________________

APPLICANT CONTENDS THAT:

Although  a  pre-existing  medical  condition  disqualified  him  from
military  service,  it  should  not  disqualify  him  from   receiving
benefits.

In support of his appeal, the applicant provided  a  copy  of  DD Form
293, Application for the Review of Discharge  or  Dismissal  from  the
Armed  Forces  of  the  United  States,  and  documentation  from  the
Department of Veterans Affairs.

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

_________________________________________________________________

STATEMENT OF FACTS:

Applicant was appointed a second lieutenant, Reserve of the Air  Force
on 5 May 85.

The applicant was tried by general court-martial and charged with  (1)
wrongfully and dishonorably obtaining an extension on a $2500 loan  by
forging and using the signature  of  another  person,  wrongfully  and
dishonorably  attempting  to  obtain  a  £714.48  loan  by  using  the
signature of  another  person  on  a  letter  of  recommendation,  and
wrongfully and dishonorably obtaining  a  $15,285  loan  by  using  an
alias,  false  social  security  number,  and  asserting   false   and
misleading financial data on a credit application  and  a  conditional
sales contract, all in violation  of  Article  133,  Uniform  Code  of
Military Justice (UCMJ);  (2)  attempting  to  wrongfully  appropriate
£714.48, in violation of Article 80, UCMJ; and (3)  writing  four  bad
checks totaling approximately $450 with  the  intent  to  defraud  and
knowing he did not or would not have sufficient  funds  to  cover  the
checks, in violation of Article 123a, UCMJ.  The applicant chose to be
tried by military judge alone.  The applicant pled not guilty  to  the
first two Article 133 offenses, but guilty to the third regarding  the
$15,285 loan.  He was found guilty of all three Article 133  offenses.
The applicant pled not guilty to the Article 80 offense and was  found
not guilty.  The  applicant  pled  not  guilty  to  the  Article  123a
specifications, but  guilty  to  the  lesser  offense  of  failing  to
maintain sufficient funds to cover the checks, an Article 134 offense.
 The military judge found the applicant guilty  of  violating  Article
134, not Article 123a.

On 14 Sep 88,  the  military  judge  sentenced  the  applicant  to  be
dismissed from the service.  On 4  Nov  88,  the  convening  authority
approved the sentence as adjudged.

On 2 Nov 89, the Secretary of the Air Force ordered the  dismissal  to
be executed, effective 18 Nov 89.  He was  credited  with  6 years,  7
months, and 11 days of total active service.

_________________________________________________________________

AIR FORCE EVALUATION:

AFLSA/JAJM recommended denial.  They noted  the  applicant's  argument
that a pre-existing condition should not disqualify him from receiving
benefits.  However, in their view, he provided no evidence to  support
his contention.

AFLSA/JAJM noted that under  10  USC  Section  1552(f),  the  AFBCMR’s
ability to correct  records  related  to  courts-martial  is  limited.
Specifically, Section 1552(f)(1) permits the correction of a record to
reflect  actions  taken  by  reviewing  authorities  under  the  UCMJ.
Additionally, Section 1552(f)(2) permits  the  correction  of  records
related to action on the sentence of courts-martial for the purpose of
clemency.  Apart from these two  limited  exceptions,  the  effect  of
Section 1552(f) is that the AFBCMR is without  authority  to  reverse,
set aside,  or  otherwise  expunge  a  court-martial  conviction  that
occurred on or after 5 May 1950 (the effective date of the UCMJ).

According to  AFLSA/JAJM,  there  is  no  legal  basis  for  upgrading
applicant’s  discharge.   The  appropriateness  of   the   applicant’s
sentence, within  the  prescribed  limits,  is  a  matter  within  the
discretion of the court-martial and may be mitigated by the  convening
authority or within the course of the appellate review  process.   The
applicant had the assistance of counsel in presenting extenuating  and
mitigating matters in their most favorable light to the court and  the
convening authority.  These matters were considered in review  of  the
sentence.  The applicant was  thus  afforded  all  rights  granted  by
statute  and  regulation.   The  applicant  provides   no   compelling
rationale to mitigate the approved dismissal given  the  circumstances
of the case.

The issues of the applicant’s mental  health  and  potential  Veterans
Administration (VA) benefits were at the forefront of the  applicant’s
sentencing case.  The  focus  of  the  applicant’s  defense  counsel’s
sentencing argument was the applicant’s mental  health.   The  defense
counsel reminded the court that the applicant was  mentally  ill,  and
that he was on medications to try and control  his  mental  condition.
He argued that the applicant should be neither confined nor  dismissed
from the service, but needed medical treatment and  “the  benefits  of
the Veterans Administration hospital  system.”   The  defense  counsel
rhetorically asked how much punishment society should visit  upon  the
applicant.  The answer  was  in  the  military  judge’s  sentence:   a
dismissal.  Throughout the  post-trial  process  this  conclusion  was
supported, with full knowledge that the applicant would be  ineligible
for VA benefits.  The convening authority,  the  Air  Force  Court  of
Military Review, the United States Court of Military Appeals, and  the
Secretary of the Air  Force  all  determined  a  dismissal  accurately
characterized his military service and his crimes.

AFLSA/JAJM indicated while clemency is an option, there is  no  reason
for the Board to exercise clemency in this case.   The  applicant  did
not serve honorably.  He failed even to assert that  he  has  been  an
upstanding citizen or asset to  the  community  since  his  dismissal.
Moreover, the applicant has provided no evidence of a clear  error  or
injustice related to the  sentence.   In  their  view,  the  applicant
presented insufficient evidence to warrant  upgrading  the  dismissal,
and did not demonstrate an equitable basis for relief.

A complete copy of the AFLSA/JAJM evaluation is at Exhibit C.

The Medical Consultant recommended denial noting that depression  with
psychotic features developed after the initiation of legal proceedings
against the applicant prompting hospitalization and  a  Sanity  Board.
The Sanity Board concluded that at the time of his  offenses  he  knew
right from  wrong  and  was  able  to  conform  his  behavior  to  the
requirements of the law.

The Medical Consultant noted that the  applicant  was  also  diagnosed
with  a  schizotypal  personality   disorder.    According   to   him,
personality disorders are not a disease but are lifelong  patterns  of
maladjustment in the individual’s personality structure which are  not
medically disqualifying or unfitting but  may  render  the  individual
unsuitable  for  further  military  service  and  may  be  cause   for
administrative action by the individual’s unit commander.  Individuals
often seek treatment for associated symptoms of  anxiety,  depression,
or other dysphoric affects, and particularly in  response  to  stress,
individuals with this  disorder  may  experience  transient  psychotic
episodes as was apparently seen in the applicant.  A small  number  of
individuals with this disorder  go  on  to  develop  schizophrenia  or
another psychotic disorder (there is no evidence  that  the  applicant
had either of these disorders while on active duty).

In the Medical Consultant's view, the action and disposition  in  this
case are proper and equitable reflecting  compliance  with  Air  Force
directives that implement the law.

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

AFPC/DPPD recommended denial.  They indicated that  they  concur  that
the preponderance of evidence justified the applicant's  court-martial
considering the serious offenses committed by him.  They  also  agreed
with the Medical Consultant’s comments  that  stated  the  applicant's
depression  and  psychotic  features  developed  shortly   after   the
initiation of legal proceedings against him,  which  resulted  in  his
hospitalization and a Sanity Board hearing.  This was verified in  his
psychiatric evaluation.

According to AFPC/DPPD, the governing regulation at the  time  of  the
applicant's court-martial stated that military members who are charged
with one or more offenses that may result in dismissal or  a  punitive
discharge by a court-martial are not eligible for  processing  through
the military disability evaluation  system  (DES).   Additionally,  it
stated that  individuals  who  undergo  a  court-martial  sentence  of
dismissal or punitive discharge would  not  be  processed  under  this
regulation unless the sentence is suspended and the member’s  physical
or mental defects warrant review by the PEB.  This is not a factor  in
this case, as the applicant was found responsible for his actions.

In AFPC/DPPD's view, the applicant did  not  submit  any  material  or
documentation to show an error  or  injustice  occurred,  or  why  his
records should be corrected authorizing  him  benefits  from  the  DVA
under  the  provisions  of  Chapter  38,  USC.   Their  conclusion  is
supported by the preponderance of  evidence  provided  concerning  his
involuntary dismissal from the Air Force following his general  court-
martial.

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

_________________________________________________________________

APPLICANT'S REVIEW OF AIR FORCE EVALUATION:

Copies of the Air Force evaluations were forwarded to applicant on  27
Jun 03 for review and response.  As of this date, no response has been
received by this office (Exhibit F).

_________________________________________________________________

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.   The  applicant's  complete
submission was thoroughly  reviewed  and  his  contentions  were  duly
noted.  However, a majority of the Board does not find the applicant’s
uncorroborated assertions or the documentation presented in support of
his appeal sufficiently persuasive to override the rationale  provided
by the  Air  Force  offices  of  primary  responsibility  (OPR).   The
evidence of record reveals that the applicant was convicted by general
court-martial   of   several   offenses   including   wrongfully   and
dishonorably obtaining an extension on a $2500  loan  by  forging  and
using the signature of another  person,  wrongfully  and  dishonorably
attempting to obtain a £714.48 loan by using the signature of  another
person on a letter  of  recommendation,  wrongfully  and  dishonorably
obtaining a $15,285 loan by using  an  alias,  false  social  security
number, and asserting false and misleading financial data on a  credit
application  and  a  conditional  sales  contract,  and,  dishonorably
failing to maintain sufficient funds to  cover  four  checks  totaling
approximately $450.  The applicant was sentenced to be dismissed  from
the service, which was subsequently executed.  No  evidence  has  been
presented  which  would  lead  the  majority  to  believe   that   the
applicant’s dismissal from the Air Force was  improper.   Furthermore,
because of the serious nature of the offenses involved,  the  majority
is of the opinion that favorable action based on clemency at this time
would not be appropriate.  In  view  of  the  foregoing,  and  in  the
absence of sufficient evidence to the  contrary,  a  majority  of  the
Board adopts the Air Force  rationale  and  concludes  that  no  basis
exists to recommend granting the relief sought in this application.

4.  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   issues   involved.
Therefore, the request for a hearing is not favorably considered.

_________________________________________________________________

RECOMMENDATION OF THE BOARD:

A majority of the  panel  finds  insufficient  evidence  of  error  or
injustice and recommends the application be denied.

_________________________________________________________________

The following members of the Board considered AFBCMR Docket Number BC-
2002-04031 in Executive Session on 3 Sep 03, under the  provisions  of
AFI 36-2603:

      Mr. Gregory H. Petkoff, Panel Chair
      Mr. J. Dean Yount, Member
      Ms. Beth M. McCormick, Member

By  a  majority  vote,  the  Board  voted  to  deny  the  application.
Mr. Petkoff voted to grant the appeal but did not desire to  submit  a
minority report.  The following documentary evidence was considered:

    Exhibit A.  DD Form 149, dated 7 Dec 02, w/atchs.
    Exhibit B.  Applicant's Master Personnel Records.
    Exhibit C.  Letter, AFLSA/JAJM, dated 22 Mar 03.
    Exhibit D.  Letter, Medical Consultant, dated 2 Jun 03.
    Exhibit E.  Letter, AFPC/DPPD, dated 24 Jun 03.
    Exhibit F.  Letter, SAF/MRBR, dated 27 Jun 03.




                                   GREGORY H. PETKOFF
                                   Panel Chair



AFBCMR BC-2002-04031






MEMORANDUM FOR THE EXECUTIVE DIRECTOR, AIR FORCE BOARD
                 FOR CORRECTION OF MILITARY RECORDS (AFBCMR)

SUBJECT:  AFBCMR Application of

      I have carefully reviewed the evidence of record and the
recommendation of the Board members.  A majority found that applicant
had not provided sufficient evidence of error or injustice and
recommended the case be denied.  I concur with that finding and their
conclusion that relief is not warranted.  Accordingly, I accept their
recommendation that the application be denied.

      Please advise the applicant accordingly.





                                           JOE G. LINEBERGER
                                           Director
                                           Air Force Review Boards
Agency