RECORD OF PROCEEDINGS
             AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS


IN THE MATTER OF:      DOCKET NUMBERS:  BC-2003-03093
            INDEX CODE 106.00
            COUNSEL:  None

            HEARING DESIRED:  No

_________________________________________________________________

APPLICANT REQUESTS THAT:

The applicant indicates in his appeal that he is not sure what  he  is
asking for but, essentially, he appears to want his 2003  bad  conduct
discharge (BCD)  upgraded  to  a  general  discharge  and  he  receive
retirement and full Department of Veterans Affairs (DVA) benefits.

[Note: As discussed in  the  AFLSA/JAJM  advisory,  the  Board  cannot
reverse, set aside, or otherwise expunge  a  court-martial  conviction
that occurred on or after 5 May 50; only the sentence can be changed.]

_________________________________________________________________

APPLICANT CONTENDS THAT:

He is not questioning his guilt of the offenses but believes there was
injustice regarding perjury by  a  prosecution  witness,  the  assault
charge, and actions by the defense and trial  counsels.  He  had  110%
honorable service until his depression. He used alcohol and  drugs  to
self-medicate  his  depression,  which  was  exacerbated   by   legal,
financial and marital problems. His head injury in  an  auto  accident
also contributed to his misbehavior.

The applicant’s complete submissions, with attachments, are at Exhibit
A.

_________________________________________________________________

STATEMENT OF FACTS:

The applicant’s military  service  records  are,  in  some  instances,
incomplete and/or virtually illegible.  The  following  available  and
decipherable information is provided below.

The applicant enlisted in the Regular Air Force on 12 Feb 81. Over his
career, he had tours in Kunsan AB, Korea and  Misawa  AB,  Japan.  His
last two assignments were with the ---------------- -------- at Misawa
AB, Japan, and the ---------------------- at Cannon AFB, NM.

His  enlisted  performance  reports  (EPRs)  through  Sep  99  reflect
excellent duty performance. However, prior to his conviction by court-
martial in 2001, he had received nonjudicial punishment  on  different
occasions for various offenses.

In Dec 81, the applicant received an Article 15 for possession and use
of marijuana and was  punished  with  forfeiture,  extra  duty  and  a
suspended reduction from airman to airman basic.

In Feb 88, he received an Article 15 for domestic assault and  assault
on an enlisted member and was punished with  forfeiture,  restriction,
and a suspended reduction from staff sergeant to sergeant.

In Nov 88, he  received  an  Article  15  for  drunk,  disorderly  and
threatening conduct and was punished with forfeiture and  a  suspended
reduction to sergeant.

The applicant received an Article 15 on 11 Jul 94 for being drunk  and
disorderly on 26 June 94 and was punished with forfeiture, 45 days  of
extra duty, and a suspended reduction to senior airman.

During 1999, while assigned in Japan, the  applicant  experienced  the
onset of symptoms of depression and anxiety related to marital discord
and separation, financial difficulties, and  occupational  stress.  He
was treated with medication and psychotherapy.

The applicant reenlisted on 25 Jun 99 for five years and was  promoted
to master sergeant on 1 Jul 99.

The Misawa AB Mental Health Clinic (MHC) diagnosed the applicant  with
major depression in Oct 99, and he was  placed  on  profile  for  this
condition through 13 Sep 00.

He was reassigned to Cannon AFB, NM, at the end of 1999, and continued
care in the MHC for his symptoms of depression  and  anxiety.  In  the
spring of 2000,  he  reported  an  episode  of  amnesia  regarding  an
altercation with his live-in girlfriend and difficulties  with  short-
term memory loss.

The applicant received another Article 15 in 22 May 00 for failing  to
go to a medical appointment on 9 May 00 and was  reduced  from  master
sergeant to technical sergeant.

A 1 Jun 00 evaluation at the Texas Tech University School of Medicine,
Department  of  Neuropsychiatry  and  Behavioral  Sciences,  found  no
evidence of organic brain  disease  and  felt  the  applicant  had  an
atypical, treatment-resistant depression.

On 19 Jun 00, the applicant underwent surgery at the University of  NM
Hospital for cervical fractures of the fourth and fifth  vertebra.  He
had sustained these injuries in a single car rollover on 17 Jun 00; he
was not intoxicated. Several physicians diagnosed the applicant with a
c-spine fracture, compression of the  brainstem  and  cranial  nerves,
chronic  migraines,  depression,  memory  dysfunction,  and  prolonged
insomnia. Some medical documents indicate  the  applicant  suffered  a
severe head injury in the accident and had a post-concussive  syndrome
with possible change in his behavior as a result.  However,  according
to the AFBCMR Medical Consultant, the primary medical  documents  from
the University Hospital that cared for the applicant did not appear to
indicate a severe head injury.

The applicant was released from the University Hospital on  5 Jul  00,
and  returned  to  military  service,  where  he  received  outpatient
physical/occupational therapy and psychiatric follow-up.

On 15 Aug 00, the Secretary of the Air Force (SAF) found the applicant
did not serve  satisfactorily  in  any  higher  grade  than  technical
sergeant and would not be advanced under the provisions of  Title  10,
USC, Section 8964.

The applicant apparently was discovered to have used cocaine in Oct 00
and the medical records refer to his incarceration at a local civilian
adult detention center from approximately Jan 01 to Apr  01,  when  he
was released from the center. He was found to have been in  possession
of marijuana in Feb 01 while at the center.

On 11 Apr 01, the applicant was reduced  from  technical  sergeant  to
staff sergeant as nonjudicial punishment for failure to pay  rent  and
other indebtedness.

On 23 Apr 01, the ----------------- commander requested a sanity board
for the applicant, who was facing probable court-martial for suspected
wrongful use of cocaine in Oct 00 and wrongful possession of marijuana
in Feb 01. Several recent incidents had raised concerns regarding  the
applicant’s ability  to  assist  in  his  defense  (wandering  in  the
dormitory hall at night, sleeping barefoot in the  base  post  office,
talking to  himself,  and  attempting  to  catch  or  use  nonexistent
objectives). Further, the applicant had received  extensive  treatment
for emotional problems  in  the  past  and  was  currently  undergoing
inpatient treatment and assessment.

The evaluation by the William Beaumont Army Medical  Center  concluded
there was mild residual neuropsychological  impairment  and  resolving
post-concussive  syndrome  with  no  evidence  of  continuing  organic
personality disorder. The final diagnoses included delirium,  unknown,
unresolved; major  depressive  disorder;  history  of  alcohol  abuse;
status post cervical  fracture;  history  of  migraines,  psychosocial
stressors, severe, financial problems, primary support group problems,
occupational and legal problems.

On 29 May 01, the sanity board determined the applicant did not have a
severe  mental  disease  or  defect.  The  clinical   disorders   were
depressive disorder, alcohol abuse, and a transient amnestic  disorder
not otherwise specified, most likely due to alcohol  and  prescription
benzodiazepines. The  applicant  was  found  able  to  assist  in  his
defense.

In a general court-martial on 30 Oct 01, the applicant pled to and was
found guilty of the following charges, which were initially  preferred
on 27 Jun 01:

      Wrongful use of cocaine between, on or about 17 and  25 Oct  00;
wrongful possession of marijuana on or about 12 Feb 01,  wrongful  use
of cocaine between, on or about 7 and 15 May 01; and, on  or  about  3
Jul 01, failing to go to  his  appointed  place  of  duty,  unlawfully
striking an airman first class on the arm with his leg,  assaulting  a
technical sergeant, and threatening to kill a technical sergeant.

He was sentenced to a BCD, confinement for 3 years and 9  months  with
forfeiture of $1,100.00 pay per month for 45 months, and reduction  to
airman. The sentenced was adjudged on  31 Oct  01.  The  sentence  was
approved on 4 Jan 02.  On 11 Jun 02, the Air Force Court  of  Criminal
Appeals (AFCCA) affirmed the findings of guilty and the sentence.  The
US  Court  of  Appeals  for  the  Armed  Forces  (USCAAF)  denied  the
applicant’s petition for review on 25 Sep 02.

The applicant was separated in the grade of airman with a  BCD  on  10
Jan 03 with 20 years, 8 months and 19 days of active service and  lost
time for the period 31 Oct 01 to 10 Jan 03. The DD Form  214  reflects
the applicant had continuous honorable active military service from 12
Feb 81 through 5 Apr 94.

_________________________________________________________________

AIR FORCE EVALUATION:

The AFLSA/JAJM  addresses  the  applicant’s  contentions  and  further
notes, in  part,  that  the  maximum  punishment  authorized  for  his
conviction of multiple counts of drug use, threats to kill a  military
member, drunkenness, assault, and failure to  report  to  work  was  a
dishonorable  discharge,  confinement  for  18  years  and  8  months,
forfeiture of all pay and allowances,  and  reduction  to  the  lowest
enlisted grade.  The sentence was well within the legal limits and was
an appropriate punishment. While clemency is an option,  there  is  no
reason for it to be exercised. There  are  consequences  for  criminal
behavior, and it would be unjust to change the characterization of the
applicant’s service to one that hundreds of thousands of  airmen,  who
have served honorably, also  carry.  Further,  DVA  benefits  are  for
veterans who have served  honorably,  which  cannot  be  said  of  the
applicant. He has provided no evidence of a clear error  or  injustice
related to the sentence. The applicant’s  improved  conduct  regarding
his drug addiction does not erase his  criminal  behavior  during  his
enlistment, which  appropriately  ended  with  a  BCD.  The  applicant
presents insufficient evidence to warrant upgrading the BCD  and  does
not demonstrate an equitable basis for relief. Denial is recommended.

A complete copy of the evaluation is at Exhibit C.

The AFBCMR Medical Consultant advises that a computed  axial  scan  of
the applicant’s head at the time of the accident  was  normal  and  an
electroencephalogram  performed  10  months  later  was  normal,  both
objective  evidence  arguing  against  serious  brain  trauma  or  its
residuals.  Mild brain injury, concussion,  may  result  in  cognitive
symptoms, including  disturbances  in  memory  and  concentration  and
psychological symptoms, including anxiety and depressed mood. However,
it does not result in severe  cognitive  impairment  that  renders  an
individual unable to appreciate the wrongfulness of  his/her  conduct.
These symptoms usually resolve in most individuals over  three  months
and, at the time of the 16 Apr through 3 May 01 evaluation, there  was
no evidence of organic personality disorder. The preponderance of  the
evidence indicates that action  and  disposition  in  this  case  were
proper and equitable reflecting compliance with directives. Denial  is
recommended.

A complete copy of the evaluation is at Exhibit D.

_________________________________________________________________

APPLICANT'S REVIEW OF AIR FORCE EVALUATION:

Complete copies of the Air Force evaluations  were  forwarded  to  the
applicant on 26 May 04 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 error or injustice. The  applicant  indicates  he  is
unsure what he is asking for, but he appears to want his BCD  upgraded
to a general discharge with retirement and full DVA benefits. After  a
thorough  review  of  the  evidence  of  record  and  the  applicant’s
submissions, we are not persuaded  any  changes  to  his  records  are
warranted. The applicant’s contentions were duly noted; however, we do
not  find  these  assertions,  in  and  by  themselves,   sufficiently
persuasive to  override  the  available  evidence  and  the  rationale
provided by the Air Force legal and medical advisors.  The 2001 sanity
board, which was comprised  of  a  psychiatrist  and  two  physicians,
determined the applicant did not  have  a  severe  mental  disease  or
defect  and  was  able  to  appreciate  the  nature  and  quality,  or
wrongfulness, of his conduct. The Medical Consultant concluded neither
the applicant’s depression nor his accident impaired  his  ability  to
know right from wrong and act accordingly. We agree. In  this  regard,
the applicant’s misconduct began as early as  1981,  long  before  his
diagnosis of depression in 1999 and his vehicular  accident  in  2000.
His infractions included assault, threats, and  multiple  episodes  of
drug and alcohol abuse. Many military members endure the same problems
the  applicant  encountered  but  without  resorting  to  criminal  or
inappropriate behavior.  The  applicant  has  provided  no  persuasive
evidence that he was denied due process  or  that  the  actions  taken
against him were inappropriate or unsupported by his  own  misconduct.
We therefore agree with the recommendations of the Air Force and adopt
the rationale expressed  as  the  basis  for  our  decision  that  the
applicant has not sustained his burden of having  suffered  either  an
error or an injustice. In view of  the  above  and  absent  persuasive
evidence to the contrary, we find no  compelling  basis  to  recommend
granting relief in this case.

_________________________________________________________________

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  this  application  in
Executive Session on 14 July 2004 under the provisions of AFI 36-2603:

                 Ms. Olga M. Crerar, Panel Chair
                 Mr. Michael J. Novel, Member
                 Mr. Robert S. Boyd, Member

The following documentary evidence relating to AFBCMR Docket Number BC-
2003-03093 was considered:

  Exhibit A.  DD Forms 149 (2), dated 10 Aug & 20 Oct 03,
                 w/atchs, Letters, dated 10 Feb & 25 Apr 04, &
                 undated Medical Records Summary, w/atchs.
  Exhibit B.  Applicant's Master Personnel Records.
  Exhibit C.  Letter, AFLSA/JAJM, dated 5 Jan 04.
  Exhibit D.  Letter, AFBCMR Medical Consultant, dated 19 May 04.
  Exhibit E.  Letter, SAF/MRBR, dated 26 May 04.





                                   OLGA M. CRERAR
                                   Panel Chair