RECORD OF PROCEEDINGS
             AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS


IN THE MATTER OF:      DOCKET NUMBER:  BC-2004-02235
            INDEX CODE: 106.00, 108.01, 126.04
            COUNSEL:  Gary R. Myers

            HEARING DESIRED: Yes

MANDATORY CASE COMPLETION DATE:  24 Jan 06

_________________________________________________________________

APPLICANT REQUESTS THAT:

1.  The nonjudicial punishments imposed upon  him  under  the  Uniform
Code of Military Justice (UCMJ) be expunged from his record.

2.  His 2002  general  discharge  for  misconduct  be  changed  to  an
honorable discharge for medical disability.

3.  He be separated in the rank of staff sergeant (SSgt), and afforded
any other relief to which he is entitled.

[Note: The applicant also received two referral  Enlisted  Performance
Reports (EPRs) that the Board may wish to consider.]

_________________________________________________________________

APPLICANT CONTENDS THAT:

His mental  disorder  preceded  the  misconduct,  which  involved  his
viewing adult sexual activity on  government  computers.   He  suffers
from a recognized and diagnosed mental illness--a form of  paraphilias
not otherwise specified under the Diagnostic and Statistical Manual of
Mental Disorders, 4th Edition (DSM IV) 302.9.  In the  vernacular,  it
is a sexual addiction that is treated like all other addictions.   His
mental health records universally diagnose  him  as  having  a  sexual
disorder  associated  with  gaining  access  to   “explicitly   sexual
activity.”  His disorder was the direct and  proximate  cause  of  his
utilization of government computers to view these materials.  Although
the command rightfully recognized the problem,  it  wrongfully  viewed
the events as misconduct rather than part of a medical  problem.   His
condition should have been recognized  and  it  clearly  rendered  him
unfit for duty.  Had the Air Force properly treated this as a  medical
condition and sought his medical separation  upon  its  discovery,  he
would not be in his current position.  Further, a zero percent  rating
is available under the general rating formula for mental disorders.

Counsel’s complete submission, with attachments, is at Exhibit A.

_________________________________________________________________

STATEMENT OF FACTS:

The applicant enlisted in the Regular Air Force on 25 Feb 87.  He  was
sequentially promoted to the grade of SSgt.   With  three  exceptions,
the applicant’s performance reports prior to the  period  in  question
reflected the highest overall rating (see Exhibit B).

During the period  in  question,  the  applicant  was  an  instructor,
Department of Defense (DOD) Biomedical Equipment  Technician  Training
Course, with the 384th Training Squadron (384 TRS)  at  Sheppard  AFB,
TX.

On 7 Dec 00, the applicant self-referred to the Mental  Health  Clinic
(MHC)  at  Sheppard  AFB,  presenting  addiction  to  pornography  and
possible sexual addiction.  According to the evaluation, he first  saw
pornography at age five  because  his  father  had  Playboy  magazine.
Before joining the military, he was addicted to marijuana and  cocaine
for two and  one-half  years.   As  an  adult,  he  began  looking  at
pornography on the Internet and masturbating.  He had multiple  extra-
marital affairs throughout two marriages.  His wife  found  out  about
his attraction to porn several years ago.   He  and  his  wife  sought
church help with regard to marital problems and heavy drinking.   This
helped keep him accountable until Jun  00,  when  he  resumed  viewing
pornography. He was currently  undergoing  investigation  for  viewing
porn on a government computer.  Diagnosis was deferred, but individual
sessions were recommended.

On 11 Dec 00, the applicant was notified of his commander's intent  to
impose  nonjudicial  punishment  upon  him  for  violating  a   lawful
regulation by wrongfully viewing pornographic images on his government
computer on or about 30 Nov 00.  On 15 Dec 00, after  consulting  with
counsel, the applicant waived his right to a trial  by  court-martial,
requested a personal appearance, and he and his area  defense  counsel
(ADC) submitted written  presentations.   The  ADC  advised  that  the
applicant had an addiction to pornography, similar to an addiction  to
alcohol.  The applicant admitted  to  an  addictive  personality,  and
provided character references.  On 21 Dec 00, he was found  guilty  by
his commander who imposed punishment  in  the  form  of  reduction  to
senior airman (SRA), suspended  until  20 Jun  01,  and  a  reprimand.
Applicant did not appeal the punishment.  The Article 15 was filed  in
his Unfavorable Information File (UIF).

On 8 Jan 01, the applicant was  notified  he  was  nonrecommended  for
promotion to the grade of technical sergeant (TSgt).

The applicant continued for the most part with his MHC sessions.   The
Axis I diagnosis was  relational  problems,  not  otherwise  specified
(NOS).  However, on 20 Mar 01,  he  reported  some  “backsliding”  and
several  missed  weeks   of   counseling   with   his   pastor/church.
Recommendation was to continue meetings at church, individual work  on
a 12-step program, and bi-weekly sessions at the MHC.

On 18 Apr 01,  the  384  TRS  First  Sergeant  indicated  in  a  sworn
statement that, on 12 Apr 01,  he  was  made  aware  of  a  government
computer being used  on  numerous  occasions  to  access  pornographic
Internet sites.   Three  individuals,  including  the  applicant,  had
access to the computer. The First Sergeant advised  the  applicant  of
his rights, and he at first denied  accessing  porn  sites.   However,
upon being re-interviewed, he admitted to misusing the computer from 2-
6 Apr 01.

MHC sessions, dated  27  Apr  and  4 May  01,  noted  the  applicant’s
embarrassment for again being caught  using  his  computer  to  access
porn.  Counseling was to continue;  however,  the  applicant  declined
possible medication for the time being.   The  applicant  reported  he
asked  his  commander  to  help  him  avoid  a  similar  incident   by
implementing  some  external  controls.   The  provider  advised   the
applicant would need to take personal responsibility for his behavior.


On 30 Apr 01, the commander vacated the  suspended  reduction  to  SRA
after the applicant violated a lawful general  instruction  on  divers
occasions between, on or about 2-6 Apr 01,  by  wrongfully  displaying
pornographic images on his government computer.  The applicant did not
make a presentation or written submission, and he was reduced  to  SRA
with a date of rank (DOR) of 21 Dec 00.

On 9 May 01, the  commander  imposed  nonjudicial  punishment  on  the
applicant in the form  of  reduction  to  airman  first  class  (A1C),
suspended until 8 Nov 01, and 30 days of extra duty, for  violating  a
general instruction on divers occasions between, on or about  2-6  Apr
01, by wrongfully displaying pornographic  images  on  his  government
computer.  The applicant made a personal appearance  and  submitted  a
written presentation, apologizing and indicating he had a  deep-seated
problem with pornography and sexual addiction.  He contended only  one
of the external controls he had requested to compensate for  his  lack
of internal controls had been implemented.  However, he did not appeal
the punishment.

The applicant continued his psychotherapy and counseling sessions, but
had not yet begun “working the [12] steps.”

On 14 Jun 01, the EPR closing 13 May 01 was referred to the applicant.
 His on/off duty conduct was marked unacceptable, and he  received  an
overall recommendation of 2 (do not promote at this time).  Misuse  of
his government computer was cited, but his excellent  performance  was
also noted.  The applicant did not provide a rebuttal.

On 18 Jun 01,  the  384  TRS  First  Sergeant  indicated  in  a  sworn
statement that the applicant had been seen, and admitted to,  using  a
government computer in an unsecured classroom to access a pornographic
site.  The applicant also related he deleted the website  history  and
temporary Internet files.

On 26 Jun 01,  the  commander  vacated  the  suspended  reduction  and
reduced the applicant to A1C, with a DOR of 9 May 01,  for  wrongfully
displaying porn on a government computer on or about  8 Jun  01.   The
applicant’s written presentation contended his  cries  for  help  [and
external controls] were initially not heard or were  misdirected.   He
maintained that despite  the  external  controls,  his  addiction  was
irrational and his recovery required  time.   He  believed  additional
discipline would not solve the situation and  his  career  was  in  an
unrecoverable tailspin.

On 27 and 29 Jun 01, the applicant underwent  a  command-directed  MHC
evaluation for  assessment  of  addictive  behaviors.   The  applicant
reported that prior to his enlistment, his first marriage  lasted  one
year due to his addictive behaviors  and  multiple  affairs,  he  lost
three jobs in one month, and he was  evicted  from  his  home  due  to
alcohol  and  drug  abuse.   Sexual  promiscuity  and  alcohol   abuse
continued through technical school.  In 1992, his second wife demanded
these actions stop and he  went  “underground.”   In  1996,  his  wife
discovered his use of porn websites and installed a  filter  on  their
home computer.  He then turned to  office  computers.   Diagnosis  was
Axis I, 302.9, Sexual Disorder, NOS.

On 25 Jul 01, the staff psychologist  and  neuropsychologist  provided
the completed MHC evaluation to the commander.  The applicant had been
largely unsuccessful in  his  efforts  to  cut  down  or  control  his
behavior or to  successfully  manage  them  through  participation  in
individual psychotherapy.  There  was  no  evidence  of  other  mental
health problems.  Diagnoses were Axis I, 302.9, Sexual  Disorder  NOS,
and 309.0, Adjustment Disorder with depressed mood.  The applicant was
found suitable for continued military service on the  basis  of  these
diagnoses, and there was no evidence of a  psychiatric  disorder  that
would preclude him from functioning  in  his  career  field.   He  was
recommended for  a  residential  treatment  facility  specializing  in
sexual  addictions;  however,  efforts  were  being  directed  towards
identifying civilian treatment facilities as there were no specialists
within the Air Force mental health community.  With full participation
in a
specialized treatment program, the applicant was expected  to  recover
and function successfully.  He did not  have  a  psychiatric  disorder
that would make  him  eligible  for  Medical  Evaluation  Board  (MEB)
processing.

On 14 Sep 01, the applicant was notified of his commander’s intent  to
recommend an under-other-than-honorable-conditions  (UOTHC)  discharge
for conduct prejudicial  to  good  order  and  discipline,  i.e.,  the
conduct which prompted the nonjudicial punishment actions.

A  2 Oct  01  MHC  entry  reported  the  applicant  indicated  he  was
separating in approximately two months, had obtained a good  job,  was
feeling more positive, and did not desire services from this clinic.

On 24 Oct 01, the commander recommended  the  applicant  for  a  UOTHC
discharge, without probation and rehabilitation (P&R).

On 1 Nov 01, the applicant admitted to unauthorized use of  government
computers.  He searched for lingerie-type sites but stopped before  he
accessed porn sites.

On 5 Nov 01, a MHC entry reported the applicant consented for a  trial
of Prozac.

On 1 Apr 02, an Administrative Discharge Board (ADB) was  convened  to
determine whether discharge prior to the expiration of the applicant’s
term of service was appropriate because of  a  pattern  of  misconduct
which was prejudicial to good order and  discipline.   The  ADB  found
that the applicant violated a lawful general instruction by wrongfully
displaying pornographic images on his government computer on or  about
30 Nov 00; on divers occasions between, on or about 2 and  6  Apr  02;
and on 8 Jun 01.  The ADB recommended he be separated with  a  general
discharge without P&R.

The discharge action was found legally sufficient on  22 Apr  02;  the
staff judge advocate recommended a general discharge without P&R.  The
discharge authority approved the findings and recommendations  of  the
ADB on 7 May 02.

On 8 May 02, the EPR closing 8 May 02 was referred to  the  applicant.
His on/off conduct was marked unacceptable and he was given an overall
rating of 2  (not  recommended  for  promotion  at  this  time).   The
applicant elected not to provide comments.

On 9 May 02, the applicant was discharged in the grade of A1C  with  a
general characterization for misconduct after 15 years, 2 months,  and
15 days of active service.

_________________________________________________________________

AFBCMR MEDICAL CONSULTANT EVALUATION:

The Consultant provides details regarding the applicant’s behavior and
diagnosis.  The applicant was diagnosed with an Axis I, 302.9,  Sexual
Disorder, NOS.  This category of the general heading Sexual and Gender
Identity Disorders in DSM IV  is  included  for  coding  disorders  of
sexual functioning that are not classifiable in any  of  the  specific
categories.  He does not meet the diagnostic criteria for paraphilias.
 The commander-directed evaluation by the neuropsychologist found  the
applicant did  not  have  a  psychiatric  disorder  eligible  for  MEB
processing.   In  accordance  with  DOD  Instruction  (DODI)  1332.38,
Physical Disability Evaluation, sexual gender and identity  disorders,
including sexual  dysfunctions  and  paraphilias,  are  defects  of  a
developmental nature that do not constitute a physical disability  and
are not ratable.  Therefore, disability processing was not  warranted.
The  applicant’s  favorable  performance  evaluations  throughout  his
career attest to his fitness for duty; this performance coincided with
his Sexual Disorder, NOS, both before and after  diagnosis.   Although
the  psychological  evaluation  concluded  the  applicant   could   be
retained,  his  commander  could  have   considered   separation   for
conditions of  unsuitability  due  to  impulse  control  disorder,  in
accordance with AFI 36-3208.  However, according to this  instruction,
discharge is not appropriate if  the  airman’s  record  would  support
discharge for another reason, such  as  misconduct  or  unsatisfactory
performance.   Treatment  included  individual  psychotherapy  through
regular mental health visits, referral to specialty  care  within  the
civilian community, and medication.  Treatment for Sexual Disorders is
often unsuccessful; however, there is no evidence in the  record  that
the medical community neglected the applicant or that medical  neglect
contributed to the applicant’s difficulties.  No change in the  record
is warranted.

A complete copy of the evaluation is at Exhibit C.

_________________________________________________________________

APPLICANT'S REVIEW OF AIR FORCE EVALUATION:

Counsel asserts the applicant’s recognized condition inevitably led to
the kind of conduct which resulted in the three Article 15s.  Assuming
the Board does not wish to grant a medical discharge, counsel contends
it is in a position to upgrade the general discharge to honorable  and
remove the Article 15s on the grounds that the applicant’s psychiatric
condition was the causative factor for  the  nonjudicial  punishments.
Counsel concludes the applicant should not be  penalized  because  his
clear-cut psychiatric disability does not warrant medical separation.

A complete copy of counsel’s response is at Exhibit E.

_________________________________________________________________

ADDITIONAL AIR FORCE EVALUATION:

AFLSA/JAJM notes the applicant does not dispute the  facts  underlying
his discharge.  His  contention  that  he  suffers  from  a  condition
meriting a medical  discharge  was  disputed  by  the  AFBCMR  Medical
Consultant.  From a military justice  perspective,  a  person  is  not
criminally responsible for his/her actions if he/she “as a result of a
severe mental disease or defect was unable to  appreciate  the  nature
and quality or  wrongfulness  of  his  or  her  acts.”   Even  if  the
applicant’s condition is a severe mental disease or defect,  there  is
no evidence it affected his  ability  to  appreciate  the  nature  and
quality or wrongfulness  of  his  acts.   On  the  contrary,  his  own
statements show he understood what he was doing.  His  condition  does
not warrant setting aside the  nonjudicial  punishment  actions.   The
applicant had defense counsel representation  during  his  nonjudicial
punishment proceedings and during his discharge board,  where  he  had
both civilian and military counsel.  The  discharge  board  considered
the  impact  of  the  applicant’s  addiction  on  his   behavior   and
nevertheless chose to discharge him for his admitted misconduct.  None
of the relief requested is appropriate and denial is recommended.

A complete copy of the evaluation is at Exhibit F.

_____________________________________________________________

APPLICANT’S REVIEW OF ADDITIONAL EVALUATION:

Counsel asserts they have never argued that the separation proceedings
lacked legal sufficiency but that equity suggests both  the  character
and quality of the applicant’s discharge should be upgraded.

A complete copy of counsel’s response is at Exhibit H.

_____________________________________________________________

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.  After a thorough review  of  the
evidence of record and counsel’s submission, we are not convinced  the
applicant’s nonjudicial punishments should be  voided,  his  grade  of
SSgt restored, or his general discharge for misconduct changed  to  an
honorable  discharge  for  medical  disability.   Counsel  appears  to
contend, in part, that his client essentially could not  stop  himself
from accessing porn sites on his government computer  because  of  his
addictive sexual disorder, and that somehow the Air Force  facilitated
his misconduct by requiring him to  work  with  government  computers.
However, we do not find these assertions  sufficiently  persuasive  to
override the evidence of record or the  evaluations  provided  by  the
Medical  Consultant  and  the  Air  Force.   The  Medical   Consultant
indicated the applicant did not meet the criteria for  paraphilias  or
suffer  from  a  psychiatric  disorder  that  was  eligible  for   MEB
processing.   The  Consultant  added  that  disorders  such   as   the
applicant’s were a defect of  a  developmental  nature  that  did  not
constitute a disability and were not  ratable.   Many  individuals  in
both civilian and military capacities  cope  with  various  addictions
through   counseling/medication    and    acceptance    of    personal
responsibility.   The  applicant’s  own   statements   illustrate   he
understood the wrongful nature of his acts and knew what he was doing.
 As such, we fail to see how the Air Force should be found culpable in
some  way  for  the  applicant’s  circumstances.   Counsel   has   not
established to our satisfaction that authorities  failed  to  consider
the impact of the applicant’s addiction on his behavior, that  he  was
medically neglected, that the nonjudicial punishments imposed  on  him
were  inappropriate,  that  he  was  not  afforded  opportunities   or
assistance towards rehabilitation, or that his general  discharge  was
unjust.  Counsel’s submission has not persuaded us the  applicant  was
the victim of an error or injustice warranting relief on the basis  of
either  merit   or   clemency.     We   therefore   agree   with   the
recommendations and rationale of the Medical Consultant  and  the  Air
Force and, in view of the above and absent persuasive evidence to  the
contrary, find no compelling basis to recommend  granting  the  relief
sought.

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  issue(s)   involved.
Therefore, the request for a hearing is not favorably considered.
_________________________________________________________________

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 17 August 2005 under the provisions  of  AFI  36-
2603:

                 Mr. Joseph G. Diamond, Panel Chair
                 Mr. Wallace F. Beard, Jr., Member
                 Ms. LeLoy W. Cottrell, Member

The following documentary evidence relating to AFBCMR Docket Number BC-
2004-02235 was considered:

  Exhibit A.  DD Form 149, dated 15 Jul 04, w/atchs.
  Exhibit B.  Applicant's Master Personnel Records.
  Exhibit C.  Letter, AFBCMR Medical Consultant, dated 17 May 05.
  Exhibit D.  Letter, SAF/MRBR, dated 20 May 05.
  Exhibit E.  Letter, Counsel, dated 20 Jun 05.
  Exhibit F.  Letter, AFLSA/JAJM, dated 14 Jun 05.
  Exhibit G.  Letter, AFBCMR, dated 16 Jun 05.
  Exhibit H.  Letter, Counsel, dated 15 Jul 05.




                                   JOSEPH G. DIAMOND
                                   Panel Chair