RECORD OF PROCEEDINGS
AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS
IN THE MATTER OF: DOCKET NUMBER: BC-2003-00560
(CASE 2)
INDEX CODES: 108.00 111.02,
126.03, 131.09
COUNSEL: NONE
HEARING DESIRED: NO
_________________________________________________________________
APPLICANT REQUESTS THAT:
EXAMINER’S NOTE: Applicant’s requests are somewhat vague; it appears,
in addition to the requests on his DD Form 149, he is seeking other
actions which are contained in various submissions.
1. He be advanced to the retired grade of staff sergeant effective
7 June 2003, not June 2002.
2. His DD Form 214 be corrected in Item 11 by adding several Air
Force Specialty Codes (AFSCs).
3. His DD Form 214 be corrected to reflect his service at various
overseas locations.
4. The Enlisted Performance Report (EPR) rendered for the period 7
March 1990 through 6 March 1991 be upgraded to “4” and/or the
derogatory comments be removed.
5. The EPR rendered for the period 11 December 1991 through 8 April
1992 be upgraded in the ratings.
6. He be given a disability rating from the Air Force due to
hearing loss as a result of an ear cleaning injury and exposure to
Agent Orange.
7. The punishment imposed upon him under Article 15, Uniform Code
of Military Justice (UCMJ), dated 7 January 1994, be set aside.
Additional Examiner’s note: HQ AFPC/DPPRSP advised the applicant on
21 April 2003, that corrections to his DD Form 214, dated 30 September
1994, were made pertaining to his AFSCs and to his periods of service
(Items 11, 12a, 12c, and 12d); therefore request #2 has been
administratively corrected. The Board staff has been advised that
after his records are returned to HQ AFPC, further corrections will be
made to applicant’s DD Form 214 regarding Foreign Service so his
records will indicate 2 years, 4 months, and 18 days of Total Foreign
Service.
_________________________________________________________________
APPLICANT CONTENDS THAT:
He was separated from the service and returned as a sergeant, with no
loss of time or grade as his records reflect. His DD Form 214 does
not accurately reflect his AFSCs - there are obvious errors on his DD
Form 214. He never received feedback on the 6 March 1991 EPR. The
rating is unfair. Also, he believes the rating of an overall “2” on
the EPR closing 8 April 1992 is unjust.
He was punished by having to undergo psychiatric evaluations as
intimidation for trying to correct an asbestos problem in his unit
while in Korea.
He was injured when a Red Cross volunteer improperly cleaned his ear.
Applicant’s complete submission is attached at Exhibit A.
_________________________________________________________________
STATEMENT OF FACTS:
The applicant enlisted in the Delayed Enlistment Program (DEP) on 6
July 1972, was discharged on 5 September 1972 and on 6 September 1972,
enlisted in the Regular Air Force (RegAF) for a period of four (4)
years.
On 24 September 1974, the applicant was notified of his commander's
intent to impose nonjudicial punishment upon him for possession of
marijuana on or about 14 September 1974, at Grissom AFB, IN, in
violation of the Uniform Code of Military Justice (UCMJ), Article 92.
On 25 September 1974, after consulting with counsel, applicant waived
his right to a trial by court-martial, requested to make an oral
presentation, but did not submit a written presentation.
On 26 September 1974, he was found guilty by his commander who imposed
the following punishment: forfeiture of $50.00 for two months. The
applicant did not appeal.
He was honorably released from active duty on 3 September 1976 and
transferred to the Reserve of the Air Force, effective 4 September
1976. He served in the Inactive Reserves until his discharge on 30
August 1977. He enlisted in the RegAF on 31 August 1977 for a period
of four (4) years and on 30 August 1981, he was honorably discharged.
He enlisted in the RegAF on 2 March 1982, in the grade of sergeant (E-
4) for a period of four (4) years and was honorably discharged on 16
October 1985. During this enlistment, he was promoted to the grade of
staff sergeant effective and with a date of rank of 1 February 1984.
The applicant reenlisted on 17 October 1985 in the grade of staff
sergeant for a period of four (4) years. He contracted his last
enlistment on 25 July 1989, in the grade of staff sergeant for a
period of four (4) years.
On 6 August 1993, the applicant was tried by Special Court-Martial at
Minot AFB, ND, for wrongful use of marijuana on or about 25 January
1993 to 3 February 1993, in violation of Article 112a, UCMJ. He was
found guilty and sentenced to confinement for six months and reduction
to the grade of airman first class.
On 10 December 1993, while in confinement, the applicant was notified
of his commander's intent to impose nonjudicial punishment upon him
for six charges of assault, dereliction of duty, disorderly conduct,
and showing disrespect to a non-commissioned officer.
The applicant was released from confinement on 5 January 1994 and
returned to duty.
On 6 January 1994, after consulting with counsel, applicant waived his
right to a trial by court-martial and requested a personal appearance
and submitted a written presentation.
On 7 January 1994, he was found guilty by his commander who imposed
the following punishment: reduction to the grade of airman, effective
7 January 1994. The applicant appealed the punishment; however, the
commander recommended to the appeal authority that it be denied,
stating he found the applicant guilty of four of the six charges and
the applicant admitted to committing these four charges. The appeal
was denied.
On 28 January 1994, the applicant requested, as an exception to
policy, he be allowed to retire during the fiscal year 1994 Early
Retirement Program as an airman with over 19 years, 6 months of total
active military duty served. Both the squadron commander and Military
Flight Commander (MPF) commander concurred in his request since he was
not afforded the opportunity to request early retirement due to
confinement.
On 13 May 1994, the applicant was advised of his commander’s intent to
recommend his discharge for misconduct, specifically, drug abuse, in
accordance with AFR 39-10, paragraph 5-51. The commander recommended
a general discharge and cited the court-martial as the basis for the
action. He was advised of his rights, to include presenting his case
to an Administrative Discharge Board (ADB).
An ADB was convened on 3 August 1994 at Minot AFB, ND, to determine
whether discharge prior to the applicant’s expiration of term of
service was appropriate. After evidence was presented by the
government and the applicant, who was represented by legal counsel,
the ADB recommended the applicant be retained on active duty. The
discharge authority approved the results of the ADB and directed the
applicant be retained on active duty.
On 28 September 1994, the Secretary of the Air Force directed the
applicant be advanced only to the higher grade of sergeant (E-4)
pursuant to Section 8964, Title 10, United States Code (10USC) and
directed his advancement to that grade effective the date of
completion of all required service.
The applicant was voluntarily retired in the grade of airman (E-2),
effective 1 October 1994. He served 20 years, 6 months, and 27 days
of net active duty, with time lost during the period 6 August 1993 to
5 January 1994, for total active service of 20 years, 1 month, and 27
days. The applicant will be advanced on the retired list to the grade
of sergeant effective 4 August 2004.
A resume of the applicant's performance reports since 1982 follows:
PERIOD ENDING OVERALL EVALUATION
11 Aug 82 8
5 Apr 83 8
5 Apr 84 Not in the official record
5 Apr 85 8
6 Mar 86 8
6 Mar 87 9
6 Mar 88 9
6 Mar 89 8
6 Mar 90 4 (New system)
* 6 Mar 91 3
* 8 Apr 92 2 (Referral)
11 May 93 2
*Contested Reports.
During the applicant’s military service, he was treated for a variety
of medical conditions which are discussed in the advisory opinion
provided by the AFBCMR Medical Consultant at Exhibit J.
_________________________________________________________________
AIR FORCE EVALUATION:
HQ AFPC/DPPAC states a review of the documentation submitted
substantiates the applicant’s claim that Item 11 does not reflect all
of the AFSCs he performed while on active duty. The records
substantiates he not only performed duty in 3M052, but also in 30651
and 46150. He never performed duty in 2W051. Further, the records
also reflect the periods of service for the AFSCs in which he
performed differ from the periods indicated in Item 11. They
recommend changes to Item 11 of the DD Form 214, as follows: 3M051 -
Morale, Welfare Recreation and Services Journeyman, 2 years, 6 months;
46150 - Munitions Systems Specialist, 13 years, 9 months; and 30651 -
Electronic - Mechanical Communications and Cryptographic Equipment
Systems Specialist, 3 years, 11 months.
A complete copy of the evaluation is attached at Exhibit C.
EXAMINER’S NOTE: A DD Form 215 has been issued making these changes.
HQ AFPC/DPPRRP reviewed the application with respect to retirement
processing and recommended denial. They give a chronological listing
of the applicant’s service and indicate the time the applicant spent
in the DEP, the Inactive Reserves, and confinement is not creditable
time for advancement purposes. Also, from 31 August 1981 to 1 March
1982, the applicant was not affiliated with any branch of military
service. The highest grade the applicant held while on active duty
was staff sergeant. Based on the chronological listing of his
military service, the applicant accumulated a total of 20 years, 6
months, and 27 days active military service, however, the five months
spent in confinement had to be made good so his active service totaled
20 years, 1 month, and 27 days. They state Section 8964, Title 10,
United States Code (10USC) allows advancement of enlistment members
(when their active service plus service on the retired list totals 30
years) on the retired list to the highest grade in which they served
satisfactorily as determined by the Secretary of the Air Force (SAF).
SAF has delegated this authority to the SAF Personnel Council (SAFPC).
SAFPC determined on 28 September 1994, that the applicant did not
serve satisfactorily in any higher grade than sergeant (E-4). A
review of the applicant’s master personnel records revealed an error
on Special Order AC-000098, which amended the original retirement
order (AC-024717). Special Order AC-000098 directed that effective 7
June 2003, the applicant would be advanced to the grade of sergeant on
the retired list. The advancement effective date of 7 June 2003 was
incorrect based on the applicant’s Total Active Federal Military
Service Date (TAFMSD) of 4 August 1974. The applicant will not
complete 30 years service until 3 August 2004 and will be advanced to
the grade of sergeant effective 4 August 2004. A special order has
been issued correcting the error. In summary, there are no provisions
of law to grant credit for unserved service, nor do they support
awarding the applicant credit for over two years of active service to
permit advancement on the retired list effective 7 June 2002. All
criteria of the law have been met in this regard and corrective action
has been taken to correct the applicant’s effective date of
advancement from 7 June 2003 to 4 August 2004.
A complete copy of the evaluation, with attachments, is attached at
Exhibit D.
_________________________________________________________________
APPLICANT'S REVIEW OF AIR FORCE EVALUATION:
After reviewing the evaluations, the applicant states he should be
promoted to the grade of staff sergeant at the 30-year point. He
continues by relating a myriad of issues to include, but not limited
to problems at Minot AFB and Kunsan Air Base, Korea, forms missing
from his records, being sent on a short notice tour to keep him from
contesting an unjust EPR, safety problems in his unit in Korea, an ear
injury while assigned to Minot AFB leading to a change in his
personality, and being by-passed for promotion. Due to the stress of
his situation, he made a bad mistake for which he was court-martialed,
but was retained. He states he did excellent work yet was by-passed
for promotion. He feels he was punished for contesting an EPR.
Applicant’s complete response, with attachments, is attached at
Exhibit F.
By application, dated 8 September 2003, the applicant provided
additional documentary evidence for the Board’s consideration, which
is attached at Exhibit H.
_________________________________________________________________
ADDITIONAL AIR FORCE EVALUATION:
AFLSA/JAJM reviewed the application with respect to the applicant’s
court-martial on 6 August 1993 and recommends denial. They state the
approved sentence was well within the legal limits and was an
appropriate punishment for the offenses committed. The
appropriateness of the sentence 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 was
afforded all rights granted by statute and regulation. As a non-
commissioned officer, he had a duty to serve as an example to airmen
of lesser rank. Through his use of marijuana, he betrayed his duty,
not only to the Air Force, but to his family and himself. It should
be noted the applicant’s record of service was not unblemished as his
records reflect he had previously received an Article 15 for
possession of marijuana in 1974.
A complete copy of the evaluation is attached at Exhibit I.
The AFBCMR Medical Consultant reviewed the application with respect to
the medical concerns raised by the applicant and indicates no change
to the records is warranted based on medical issues. The Consultant
indicates the applicant links poor duty performance and his decision
to use marijuana to cognitive impairment caused by exposure to toxic
fumes, right ear pain, and medications. The preponderance of the
evidence does not support a conclusion that toxic fumes caused the
applicant’s decline in duty performance or his decision to use
marijuana. The medications used for the ear pain, in the latter
years, eardrops, do not cause cognitive or judgment difficulties. The
applicant experienced symptoms of hay fever (allergic rhinitis) for
which he used over-the-counter antihistamine/decongestant medications
(Contact) and was prescribed similar medications by his physicians.
Some of these medications were documented to cause some drowsiness in
the applicant, but he tolerated one medication without drowsiness and
was also prescribed a new non-sedating antihistamine. He was aware of
the side effects and was able to avoid those that caused side effects
and obtain those that did not. There is no evidence in the medical
record that shows any concern about chronic side effects affecting
duty performance due to these medications or a requirement to take
them on a daily basis. Lastly, the applicant was treated episodically
with non-steroidal anti-inflammatory medications (aspirin like
medications - Motrin used almost exclusively) primarily for shoulder
pain. He was treated in January 1991 with a medication that can cause
side effects including depressed mood, dizziness, headache, and
fatigue, thus impairing duty performance, however, he was not treated
with this medication on a frequent or chronic basis. Motrin only
rarely causes these types of side effects and mild effects do not
affect duty performance. When severe enough to affect occupational
functioning, patients report such symptoms to their physicians.
Evidence of record shows episodic treatment and not chronic treatment
with these medications and the sustained problems he experienced are
not attributable to these medications.
A complete copy of the evaluation is attached at Exhibit J.
HQ AFPC/DPPPE reviewed the application regarding the EPR issue and
strongly recommends denial to change the rating on the EPR closing 6
March 1991 from a “3” to a “4.” Further, there is no justification to
delete any verbiage on this same report. After an in-depth review of
the records, the rating and comments are consistent with each other.
The applicant has provided no evidence to support his allegation; nor
has he provided justification to change the rating from a “3” to a
“4.” This point is actually moot since ratings and expectations can
change from each reporting period, nor are ratings for one reporting
period dependent upon a previous report. They do not make a
recommendation regarding the EPR closing 8 April 1992 because they can
find nothing contesting this report.
A complete copy of the evaluation is attached at Exhibit K.
_________________________________________________________________
APPLICANT’S REVIEW OF ADDITIONAL AIR FORCE EVALUATION:
After reviewing the additional evaluations, he states he is submitting
documentation showing he never admitted to the offenses in the Article
15. He is submitting information from the Department of Veterans
Affairs (DVA) showing service connection for several medical
conditions. He further submits documentations from mid and senior
level enlisted members plus officers demonstrating his skills and
abilities thereby showing the contested EPRs are inaccurate. He
questions the merit of the Article 15 he received while in
confinement.
Applicant’s complete response, with attachments, is attached at
Exhibit M.
_________________________________________________________________
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 his requests
he be advanced to the retired grade of staff sergeant effective 7 June
2003, and he be given an Air Force disability rating. Notwithstanding
his assertions concerning these requests, we do not find the
documentation presented in support of his appeal sufficiently
persuasive to override the rationale provided by the Air Force offices
of primary responsibility (OPRs). Based on this reason, and in the
absence of sufficient evidence to the contrary, we agree with the
recommendation of the OPRs and adopt their rationale as the basis for
our decision that the applicant has failed to sustain his burden of
establishing that he has suffered either an error or an injustice.
Accordingly, his requests are not favorably considered.
4. Concerning his request the Article 15 dated 7 January 1994 be set
aside, the evidence of record reflects that, after considering all
matters presented by the applicant, his commander determined that he
had committed one or more of the offenses alleged, and made the
decision to impose nonjudicial punishment under Article 15. The
applicant appealed the punishment but it was denied. We choose not to
disturb the discretionary judgments of commanding officers, who are
closer to events, absent a strong showing of abuse of that authority.
Therefore, in the absence of persuasive evidence the applicant’s
substantial rights were violated, he was coerced to waive any of his
rights, or the commander who imposed the nonjudicial punishment abused
his discretionary authority, we conclude that no compelling basis
exists to recommend granting the requested relief.
5. Regarding his request his 6 March 1991 EPR be upgraded or removed
and his 8 April 1992 EPR be upgraded, we note that evaluators are
required to assess a ratee’s performance, honestly and to the best of
their ability, based on their observance of an individual’s
performance. No evidence has been presented which has shown to our
satisfaction the applicant’s evaluators were unable to render
accurate, unbiased evaluations of his performance, or that the
contested reports were based on factors other than the applicant’s
duty performance during the contested rating periods. Additionally,
we found no evidence the contested reports were prepared contrary to
the governing regulation nor did we find a rater’s failure to conduct
counseling or feedback sessions to be a sufficient basis to invalidate
a report. In view of the foregoing, and in the absence of evidence to
the contrary, we find no compelling basis to recommend favorable
action on the applicant’s requests.
6. It appears the applicant’s request pertaining to his AFSCs has
been resolved administratively. We further note the Board staff has
been advised his request that his DD Form 214 be corrected to reflect
his service at various overseas locations will also be resolved
administratively once his records are returned to the Air Force
Personnel Center. In view of the above, no further action is
necessary regarding these requests.
_________________________________________________________________
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-
2003-00560 in Executive Session on 22 April 2004, under the provisions
of AFI 36-2603:
Mr. Robert S. Boyd, Panel Chair
Mr. John B. Hennessey, Member
Mr. Jay H. Jordan, Member
The following documentary evidence was considered:
Exhibit A. DD Form 149, dated 8 February 2003, w/atchs.
Exhibit B. Applicant's Master Personnel Records.
Exhibit C. Letter, AFPC/DPPAC, dated 4 April 2003.
Exhibit D. Letter, AFPC/DPPRRP, dated 9 May 2003, w/atchs.
Exhibit E. Letter, SAF/MRBR, dated 23 May 2003.
Exhibit F. Letter, applicant, dated 3 June 2003, w/atchs.
Exhibit G. Letter, AFBCMR, dated 2 September 2003.
Exhibit H. DD Form 149, dated 8 September 2003, w/atchs.
Exhibit I. Letter, AFLSA/JAJM, dated 8 October 2003.
Exhibit J. Letter, Medical Consultant, dated 5 January 2004.
Exhibit K. Letter, AFPC/DPPPE, dated 3 March 2004.
Exhibit L. Letter, SAF/MRBR, dated 5 March 2004.
Exhibit M. Letter, applicant, dated 31 March 2004, w/atchs.
ROBERT S. BOYD
Panel Chair
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