RECORD OF PROCEEDINGS
         AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS


IN THE MATTER OF:      DOCKET NUMBER:  BC-2004-02738
            INDEX CODE:  A74.00

            COUNSEL:  ANTHONY W. WALLUK

            HEARING DESIRED:  YES

MANDATORY CASE COMPLETION DATE:  6 Mar 06

_________________________________________________________________

APPLICANT REQUESTS THAT:

His  Under  Other  than  Honorable  Conditions  (UOTHC)  discharge  be
upgraded and his narrative reason for separation be changed.

_________________________________________________________________

APPLICANT CONTENDS THAT:

His emotional state when he entered  active  duty  in  the  Air  Force
contributed to his misuse of  prescription  medicine.   His  condition
justified and required rehabilitation which he had requested from  his
commander, but his request was denied.   To  avoid  the  stigma  of  a
criminal conviction, he requested discharge in lieu  of  court-martial
and was quickly sent on his way to continue  his  abuse  of  the  pain
killers he relied on to survive his grief, depression, and despair.

In support of his appeal, the applicant provided a counsel’s brief,  a
personal statement, and other documents  associated  with  the  matter
under review.

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

_________________________________________________________________

STATEMENT OF FACTS:

Applicant’s available  military  personnel  records  indicate  he  was
appointed a major, Reserve of the Air Force (Medical Corps), on 26 Feb
80 and was voluntarily ordered to extended active duty on 26 Mar 80.

On 21  Jan  81,  court-martial  charges  were  preferred  against  the
applicant for numerous drug offenses.  On 27 Feb  81,  he  voluntarily
tendered his resignation from all appointments in  the  Air  Force  in
lieu of trial by court-martial.

On 13 Mar 81, the Office of the Staff Judge Advocate (Air  University)
recommended the applicant’s request for resignation in lieu  of  trial
by court-martial be disapproved and he  be  tried  by  general  court-
martial.

On 20 Mar 81, the Commander, Air University (AU/CC),  recommended  the
applicant’s request for resignation in lieu of trial by  court-martial
be approved.

On 29 May 81, the applicant was discharged under the provisions of AFR
36-12 (Voluntary Resignation - Conduct Triable by or in Lieu of Court-
Martial) and was furnished a UOTHC discharge.  He  was  credited  with
three years, two months, and four days of total active service.

_________________________________________________________________

AIR FORCE EVALUATION:

The Medical  Consultant  recommended  denial  noting  the  applicant’s
voluntary resignation was accepted and he was discharged with a  UOTHC
characterization of service.  The evidence of record clearly documents
repeated misconduct in the  procurement  by  deception  and  abuse  of
narcotics and other  controlled  medications.   Conviction  by  court-
martial would have resulted in far more restrictive consequences  with
respect to employment as  a  physician  than  a  UOTHC  administrative
discharge.  The applicant in his statement notes that no  notification
of state medical boards was made at the time of his discharge.   Under
current Air  Force  policies,  such  notification  is  possible  since
parallel administrative action with  respect  to  clinical  privileges
occurs under these circumstances.  The applicant asserts that  he  was
unjustly and improperly denied drug rehabilitation.  Evidence  of  the
clinical record indicated he was not considered a  suitable  candidate
for the inpatient alcohol rehabilitation  program  since  he  did  not
appear to have an alcohol abuse problem.  He was  instead  recommended
for outpatient drug rehabilitation and documentation in the  personnel
file  indicated  he  enthusiastically  participated   and   progressed
satisfactorily in that program.  He stated that to avoid the stigma of
a criminal conviction he requested the resignation in  lieu  of  court
martial and was quickly sent on his way.  The Air Force was  under  no
obligation to retain him in order to provide continued  rehabilitation
for drug abuse, a  problem  and  its  roots  the  evidence  of  record
indicated he brought into the Air Force.  Retention of  the  applicant
on active duty was inconsistent with Air Force policy then  as  it  is
today.  The evidence  of  record  showed  the  applicant  demonstrated
excellent progress in rehabilitation while still on active  duty  and,
therefore, possessed sufficient insight into his problem to  have  the
capacity to choose to seek continued  rehabilitation  once  separated.
In fact, in  his  letter  requesting  resignation  in  lieu  of  court
martial, he indicated he had already made arrangements  for  continued
rehabilitation following separation.  In  his  statement  accompanying
the  application  for   correction,   he   stated   that   he   sought
rehabilitative services through  programs  specifically  for  impaired
physicians  and  indicated  this  was  ultimately   successful.    His
curriculum vitae reflected a successful  medical  career  in  physical
medicine and rehabilitation following his discharge.

According to the Medical Consultant, there is no  medical  basis  upon
which to consider an upgrade of the  applicant's  discharge.   In  his
opinion, the evidence of  record  shows  the  applicant  was  afforded
prompt  and   appropriate   rehabilitative   services   as   well   as
compassionate consideration resulting in acceptance of his resignation
in lieu of trial by court martial.  The action and disposition in this
case were proper and equitable reflecting compliance  with  Air  Force
directives that implement the law, and no change  in  the  records  is
warranted.

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

_________________________________________________________________

APPLICANT'S REVIEW OF AIR FORCE EVALUATION:

A copy of the Air Force evaluation was forwarded to  applicant  on  25
May 05 for review and response.  As of this date, no response has been
received by this office (Exhibit D).

_________________________________________________________________

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.  Sufficient relevant evidence has been presented to demonstrate the
existence of error or injustice.  The evidence of record reflects  the
applicant was discharged with a UOTHC discharge after  submitting  his
resignation in lieu of  trial  by  court-martial  after  charges  were
preferred against him for numerous drug offenses.  As a physician,  he
had procured by deception and abused narcotics  and  other  controlled
medications.  No evidence has been presented which would  lead  us  to
believe his discharge was improper or contrary to the directive  under
which it was effected.  Notwithstanding this, it  appears  there  were
mitigating circumstances that may have contributed to the  applicant’s
misconduct.  It also appears he has made great strides  in  overcoming
the problems that resulted in his misconduct and  ultimate  discharge,
and has made a successful transition to  civilian  life.   We  believe
that to continue to stigmatize him with a UOTHC would be unduly  harsh
and serves  no  purpose.   Therefore,  we  are  of  the  opinion  that
upgrading the  applicant’s  discharge  and  changing  his  reason  for
separation, based on clemency, would  be  appropriate  in  this  case.
Accordingly, we recommend the applicant’s UOTHC discharge be  upgraded
to general and his narrative  reason  for  separation  be  changed  to
“Voluntary Resignation:  Miscellaneous  Reasons,"  with  a  separation
code of “FND.”

_________________________________________________________________

THE BOARD RECOMMENDS THAT:

The pertinent military records of the  Department  of  the  Air  Force
relating to APPLICANT, be corrected to show that on 29 May 81, he  was
discharged under the provisions of AFR 36-12  (Voluntary  Resignation:
Miscellaneous Reasons) with service characterized  as  general  (under
honorable conditions) and a separation code of “FND.”

_________________________________________________________________

The following members of the Board considered AFBCMR Docket Number BC-
2004-02738 in Executive Session on 28 Jun 05, under the provisions  of
AFI 36-2603:

      Ms. Cathlynn B. Sparks, Panel Chair
      Mr. Albert C. Ellett, Member
      Mr. Michael J. Novel, Member

All members  voted  to  correct  the  records,  as  recommended.   The
following documentary evidence was considered:

     Exhibit A.  DD Form 149, dated 30 Aug 04, w/atchs.
     Exhibit B.  Applicant's Master Personnel Records.
     Exhibit C.  Letter, Medical Consultant, dated 24 May 05.
     Exhibit D.  Letter, SAF/MRBR, dated 25 May 05.




                                   CATHLYNN B. SPARKS
                                   Panel Chair



AFBCMR BC-2004-02738




MEMORANDUM FOR THE CHIEF OF STAFF

      Having received and considered the recommendation of the Air
Force Board for Correction of Military Records and under the authority
of Section 1552, Title 10, United States Code (70A Stat 116), it is
directed that:

      The pertinent military records of the Department of the Air
Force relating to , be corrected to show that on 29 May 81, he was
discharged under the provisions of AFR 36-12 (Voluntary Resignation:
Miscellaneous Reasons) with service characterized as general (under
honorable conditions) and a separation code of “FND.”






    JOE G. LINEBERGER

    Director

    Air Force Review Boards Agency