RECORD OF PROCEEDINGS
             AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS

IN THE MATTER OF:      DOCKET NUMBER:  BC-2004-00452

            COUNSEL:  DAV

      XXXXXXX    HEARING DESIRED:  NO


MANDATORY CASE COMPLETION DATE:  31 AUG 2005


_________________________________________________________________

APPLICANT REQUESTS THAT:

His under other than honorable conditions discharge be upgraded  to  general
(under honorable conditions) for medical reasons.

_________________________________________________________________

APPLICANT CONTENDS THAT:

His service medical records show he suffered two (2) seizures  in  1981  and
that he was diagnosed with epilepsy, but he was not aware that he  had  been
diagnosed  as  epileptic  until  29  August  2002,  when  he  received   the
Department of Veterans Affairs-Rating Decision-stating such.   For  this  he
believes his discharge to be in error primarily due to medical reasons.

In support of his request, applicant provided a copy  of  DD  Form  293,  DD
Form 214 and a letter from Department Veteran Affairs (VA) Waco, TX.

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

_________________________________________________________________

STATEMENT OF FACTS:

Applicant enlisted in the Regular Air  Force  on  10  February  1981  for  a
period of four years.  On  8  September  1981,  court-martial  charges  were
preferred against the applicant for issuing 12 insufficient fund checks.

On 18 October  1981,  a  mental  health  evaluation  rendered  diagnosis  of
antisocial personality disorder and concluded that  the  applicant  did  not
have a mental disease or defect which caused him  to  lack  the  substantial
capacity to  know  right  from  wrong  and  to  conform  to  the  law.   The
evaluation also concluded that the applicant "has  no  psychiatric  disorder
warranting action under the provisions of AFR 35-4" (i.e.  did  not  warrant
referral  for  medical  evaluation  board).   He  was  placed  in  pre-trial
confinement in early November 1981.

On 12 November 1981, applicant submitted a request  for  discharge  for  the
good of the service and understood that if his  request  for  discharge  was
approved he could receive an under other than honorable  conditions  (UOTHC)
discharge.  He was afforded the opportunity to consult  with  legal  counsel
prior to submitting the  request  for  discharge.   The  base  legal  office
reviewed the case and  found  it  legally  sufficient  and  recommended  the
applicant's request for discharge for the good of the  service  be  approved
and that he be issued an UOTHC discharge. The discharge  authority  approved
the applicant's request for discharge for the good of the service,  in  lieu
of trial by court-martial.

On 1 December 1981, the applicant was notified of his commander’s intent  to
impose nonjudicial punishment for  an  alleged  violation  of  Article  134,
breaking restriction. After consulting counsel,  the  applicant  waived  his
right to demand trial by court-martial and accepted  nonjudical  punishment.
He made a personal appearance and submitted a written presentation.

On 21 December 1981, the commander found that the  applicant  had  committed
the offense alleged and imposed punishment of  reduction  to  airman  basic.
The applicant did not appeal either the finding or punishment.

Applicant was separated on 27 January 1982 under the provisions of  AFM  39-
12, Separation for Unsuitability, Misconduct, Resignation,  or  Request  for
Discharge for the Good of the Service and Procedures for the  Rehabilitation
Program, with an under other than honorable  conditions  (UOTHC)  discharge,
after serving 11 months and 18 days of total active military service.
_______________________________________________________________


AIR FORCE EVALUATION:

AFPC/DPRRS recommended denial and stated that based on the documentation  on
file  in  the  master  personnel  record,  the  discharge  was  within   the
discretion  of  the  discharge  authority.  Applicant  did  not  submit  any
evidence  or  identify  any  errors  of  injustices  that  occurred  in  the
discharge processing.  He provided no  facts  warranting  a  change  to  the
character of service.

AFPC/DPRRS complete evaluation in at Exhibit C.

The BCMR Medical Consultant recommended denial and stated that the  evidence
of the record indicates that the applicant  was  not  referred  for  medical
evaluation board. Because the condition had existed for several years  prior
to service, had not worsened, and evaluation yielded normal results, it  was
reasonable for the neurologist to not make  such  a  recommendation  in  the
context of a pending involuntary discharge. In order for an enlisted  member
who  is  undergoing  involuntary  separation  with  an  imminent   date   of
separation to undergo medical evaluation board, placement on "medical  hold"
is necessary. The authority to grant medical hold under these  circumstances
rested with Medical Standards at the Air  Force  Military  Personnel  Center
(AFMPC) and was only granted in cases that warranted termination  of  active
duty through the  disability  evaluation  system.  Conditions  that  existed
prior to entry onto active service that were not permanently  aggravated  by
service did not warrant disability discharge (resulted  in  discharge  under
administrative provisions) and  would  be  denied  medical  hold  by  AFMPC.
Medical disqualification did not pre-empt discharge for other  reasons.  Had
the applicant been referred and processed through the disability  evaluation
system, the evidence  strongly  supports  a  conclusion  that  the  Physical
Evaluation Board would have  concluded  the  applicant's  condition  existed
prior to service, was not permanently aggravated by  service,  and  returned
the applicant for administrative processing.

Air Force policy at the time of the applicant's discharge  (AFM  39-12,  AFR
35-4,  AFR  160-43)  indicated  that   members   undergoing   administrative
discharge for misconduct could be referred for evaluation in the  disability
evaluation system if there was a medical condition  present  that  warranted
such referral. If referred, and evaluation by the Physical Evaluation  Board
concluded with a finding of unfit, the case was then sent for review by  the
Air Force  Personnel  Council  as  a  "dual  action"  case.  The  Air  Force
Personnel Council then  determined  under  which  basis  for  discharge  the
airman would be separated,  misconduct  or  disability.  Today,  unless  the
medical disability is the  clear  cause  of  the  misconduct,  rendered  the
member legally insane, or was of such a compelling and  devastating  nature,
the  Personnel  Council  consistently  decides  to  separate  based  on  the
misconduct.
Although the applicant's condition could have resulted in evaluation in  the
disability evaluation system, there is no evidence of an injustice,  as  the
outcome, discharge for misconduct, would still have been the same as if  the
case were processed as a dual action case. The Secretary of  the  Air  Force
Personnel Council, finding  that  his  existing  prior  to  service  medical
condition did not cause his misconduct and was not of a devastating  nature,
would clearly have directed discharge for misconduct with a UOTHC.

BCMR Medical Consultant’s complete evaluation is at Exhibit D.
_______________________________________________________________


APPLICANT'S REVIEW OF AIR FORCE EVALUATION:

The applicant reviewed  the  Air  Force  evaluations  and  stated  that  the
seizures he suffered occurred while still under active duty  status  and  in
no way any fault of his own.  The medical development  was  supposed  to  be
processed medically  as  well,  but  was  not.   As  stated,  “There  is  no
documentation present in the case file that the applicant underwent  medical
evaluation board processing or dual action processing.” Also, a  neurologist
stated, “Cannot conclude that this patient in fact has epilepsy.” Yet  in  a
Veterans Administration Rating Decision, under title Reasons and  Bases,  it
is reported and shows “Service records show veteran  suffered  two  seizures
in 1981, and was diagnosed with epilepsy.

The original purpose for the Article 15 was because of  his  immaturity  and
insufficient fund checks, however, what the file does not show  is  that  he
accepted responsibility for his actions and successfully served out a  three
year probated  sentence  and  repaid  all  monies  and  penalties  for  said
actions.

He never knew when or where he would have a seizure, but when  he  did,  not
only did he put himself at risk,  but  anyone  who  was  within  his  space,
whether it was while he was  driving,  working,  or  just  socializing.   He
prays this Board considers the seriousness of this disability and the  risks
that accompany it, and grant his request for  change  of  character  to  his
current discharge to general (under honorable conditions)-medical.

Applicant’s complete response is at 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.   After  careful  consideration  of  the
applicant’s request  and  the  available  evidence  of  record,  we  see  no
evidence of an error or  injustice  that  would  warrant  a  change  in  his
discharge.  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  an  error
or injustice.  Therefore, in the  absence  of  persuasive  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  Docket  Number  BC-2004-00452
in Executive Session on 26 April 2005, under the provisions of AFI 36-2603:

                 Ms. B.J. White-Olson, Panel Chair
                 Ms. Janet I. Hassan, Member
                 Mr. Grover L. Dunn, Member

The following documentary evidence was considered:

    Exhibit A.  DD Form 149, dated 3 Feb 04, w/atchs.
    Exhibit B.  Applicant's Master Personnel Records.
    Exhibit C.  Letter, AFPC/DPPRS, 21 Jun 04.
    Exhibit D.  Letter, BCMR Medical Consultant, dated 15 Feb 05.
    Exhibit E.  Letter, SAF/MRBR, dated 23 Feb 05.
    Exhibit F.  Applicant’s Response, dated 7 Mar 05



                                   B. J. WHITE-OLSON
                                   Panel Chair