RECORD OF PROCEEDINGS
             AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS


IN THE MATTER OF:      DOCKET NUMBER:  BC-2004-02928
            INDEX CODE:  110.00

            COUNSEL:  NONE

            HEARING DESIRED:  NO


_________________________________________________________________

APPLICANT REQUESTS THAT:

His honorable discharge be upgraded to retired  under  the  Temporary  Early
Retirement Act (TERA).

_________________________________________________________________

APPLICANT CONTENDS THAT:

His discharge was involuntary.  He served honorably in the Air Force for  15
years and 4 months.  He indicates TERA does not state an individual  had  to
be on active duty at the time of enactment.

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

_________________________________________________________________

STATEMENT OF FACTS:

On 30 November 1973, the applicant enlisted in the  Regular  Air  Force  and
continued to reenlist, contracting his last enlistment on 12 July 1982.

On 23 May 1981, the applicant was placed on the  Weight  Management  Program
(WMP).  His maximum allowable weight (MAW) was 179 pounds; as of  that  date
he weighed 195 pounds.

AF  Form  418,   Selective   Reenlistment/NonCommissioned   Officer   Status
Consideration, dated 13 July  1987,  indicates  the  applicant’s  supervisor
recommended the applicant be allowed to extend his  reenlistment  indicating
the  applicant  had  progressed  satisfactorily  on  the  Weight  Management
Program.  The unit commander concurred  with  the  supervisor.  On  28  July
1987, the applicant acknowledged the Selective  Reenlistment  Program  (SRP)
action.

AF  Form  418,   Selective   Reenlistment/NonCommissioned   Officer   Status
Consideration, dated 16 November 1987, reflects the unit commander  did  not
recommend him for reenlistment.  The commander indicated the  applicant  had
consistently failed to maintain weight standards IAW AFR 35-11; he had  been
enrolled in the WMP in its various phases since 23 May 1981 to present;  his
records were indicative that he could reach his maximum allowable weight  of
179 pounds, the sudden excessive weight gain  showed  a  flagrant  disregard
for established procedures  and  regulations.   The  commander  stated  this
behavior did not reflect that which was commensurate of  a  non-commissioned
officer and his actions did not warrant retention in the Air Force.   On  16
November 1987, the applicant acknowledged the SRP  action.  On  18  November
1987, the applicant indicated he did not intend to appeal the decision.

On 5 December 1988, the applicant was notified of his commander’s intent  to
initiate discharge action against him for the  following:   The  applicant’s
unsatisfactory weight checks on 20 Jan 1983,  25  August  1983,  24  October
1983, 4 January 1984, 14 May 1984, 17 September 1984, 14  December  1984,  8
March 1985, 8 April 1985, 22 August 1985, 21 September 1985, 2  March  1987,
2 November 1987, 12 August 1988, and 12 October 1988.  As a result,  he  had
been repeatedly counseled, reprimanded, and placed on  the  control  roster.
The  commander  recommended  the  applicant  be  separated  with  a  general
discharge.

The commander advised the applicant of his right to consult  legal  counsel,
to present his case to an  Administrative  Discharge  Board  (ADB),  and  to
submit statements in his  own  behalf;  or  waive  the  above  rights  after
consulting with counsel.

On 13 January 1989, after consulting with counsel, the  applicant  requested
a hearing before an ADB.

On 3 February 1989, an ADB  convened  to  determine  whether  the  applicant
should be discharged prior to the expiration of his term of service  because
of unsatisfactory performance under the provisions of AFR 39-10, Chapter  5,
Section 26f.  The findings of the Board follow:

        The applicant was 33 years of age, and had 15 years and 2 months  of
total active and inactive military service

        The applicant was enrolled  in  the  Weight  Management  Program  in
accordance with AFR 35-11.

        The applicant did have at least 16 unsatisfactory weigh-ins.

        The applicant’s excess weight was not due  to  physical  or  organic
causes beyond his control.

        The applicant was considered to be subject to discharge.

         The  applicant  was  a  suitable  candidate   for   probation   and
rehabilitation.

The Board recommended the applicant be discharged from  the  Air  Force  for
unsatisfactory performance/exceeding  weight  standards  with  an  honorable
discharge,  but  that   he   be   offered   probation   and   rehabilitation
opportunities with a conditional suspension of the discharge.

On 15 February 1989, the applicant’s Area Defense  Counsel  (ADC)  requested
the applicant be  approved  for  a  one-year  probation  and  rehabilitation
program.  If granted, the applicant would have one year to  prove  he  could
succeed on the WMP.  Any failed weigh-ins would be cause for discharge.

On 23 February 1989, the Staff Judge Advocate recommended the  applicant  be
separated with an honorable discharge without probation and rehabilitation.

On  27  February  1989,  the  commander  indicated  he  reviewed  the  board
findings, the  Staff  Judge  Advocate’s  review  and  the  ADC  Request  for
Probation and Rehabilitation.  He recommended  the  applicant  be  separated
from the Air Force with an honorable discharge.  However, he disagreed  with
the ADB findings that the applicant receive  probation  and  rehabilitation.
The applicant had been given ample opportunity  to  meet  Air  Force  weight
standards and had continually failed to  make  progress.   His  most  recent
efforts were too late.  Probation and rehabilitation was denied.

On 6 March 1989, the applicant was honorably  discharged  in  the  grade  of
staff sergeant, under the provisions  of  AFR  39-10,  Exceeding  Air  Force
Weight Standards.  He served 15 years, 3 months, and 7 days of total  active
military service.

_________________________________________________________________

AIR FORCE EVALUATION:

AFPC/DPPRRP recommended denial indicating the active force  drawdown  period
specified for TERA under this section of law began on the date of  enactment
(23 October 1992) and ended 1 October 1999,  later  extended  by  law  to  1
September 2002.  The applicant was honorably discharged from the  Air  Force
on 6 March 1989, over three years prior to the  Congressional  authorization
and was, therefore, not eligible for TERA because the  law  which  permitted
early retirement was not in effect.

The evaluation is at Exhibit C.

_________________________________________________________________




APPLICANT'S REVIEW OF AIR FORCE EVALUATION:

The applicant reviewed the evaluation and indicated his  discharge  was  not
voluntary.  If it had been voluntary, he would have retired  with  20  years
of service.

He indicates no medical  board  was  performed  to  ensure  there  were  not
medical  problems  that  would  have  given  him  the  opportunity   to   be
compensated at that time.  The Air Force performed two weight studies  which
would have permitted him to stay in  the  service.  however,  his  chain  of
command felt he had been on the program too long  to  allow  a  waiver  that
would have allowed him to remain in the service to retire at 20 years.

He worked in a community service  position  in  Saudi  Arabia  training  the
Saudi Airmen on how to perform maintenance on the F-15 aircraft  in  country
from 1991 through 1994.  This is also included in the TERA  narrative  which
would extend his retirement up to 18 years of service.

Nowhere does TERA state “Selected” as stated several times in  the  advisory
opinion.  It  states  “for  the  services  to  offer  early  retirements  to
personnel with more than 15 years but less than 20 years of service.”   What
the services added did not affect the act as written in Congress.

With the 10 years on the WMP, he was  discriminated  against  by  not  being
allowed to  gain  promotions  with  testing,  also  his  Airmen  Performance
Reports (APRs) suffered by being marked lower  than  his  peers.   This  was
extremely unfair to an individual subjected for an extended period of time.

Applicant’s complete response is at Exhibit E.

_________________________________________________________________

ADDITIONAL AIR FORCE EVALUATION:

The BCMR Medical Consultant recommended denial indicating testimony  of  the
proceedings of  the  discharge  board  that  convened  on  3  February  1989
indicated the applicant was represented by counsel and the board  considered
whether the applicant had  a  medical  reason  preventing  him  from  losing
weight.  Although  primary  medical  documentation  of  medical  evaluations
performed in the year leading up to his  discharge  are  not  available  for
review,  the  transcript  contains  testimony  (by  the  applicant’s   first
sergeant)  which  indicates  the  applicant  underwent   an   endocrinologic
evaluation at William  Beaumont  Army  Hospital  in  August  of  1988.   The
applicant was  reported  to  have  told  his  first  sergeant  that  he  was
dissatisfied with the evaluation.  The record also  reflects  the  applicant
was afforded extensive behavioral therapy during 1987 and 1988.  During  his
testimony at the discharge board hearing the  applicant  stated,  “There  is
nothing wrong with me as far as physically why I can’t lose  weight.   There
has been nothing found along that line.”  The discharge board concluded  the
applicant’s excess weight was not due to physical or organic  causes  beyond
his control.

Although the service  medical  record  is  not  available  for  review,  the
limited available evidence in the case file clearly reflects  the  applicant
did  undergo  medical  evaluations  in  the   year   leading   up   to   his
administrative discharge that did not disclose any  medical  condition  that
would have prevented him from losing  weight.   Action  and  disposition  in
this case are proper and equitable  reflecting  compliance  with  Air  Force
directives that implement the law.

The evaluation is at Exhibit G.

_________________________________________________________________

APPLICANT'S REVIEW OF AIR FORCE EVALUATION:

The applicant reviewed the evaluation and indicated the  medical  consultant
only used his weight control records, which are incorrect, with  information
from his discharge board to make their determination.  He was on the  weight
management program for over 10 years.  Why did the Air Force wait  until  he
was on the verge of retirement to involuntarily discharge him?   He  further
indicates he is distressed  by  the  information  he  has  gained  from  his
medical records.  He needs to consult his  physician  to  see  if  any  more
damage has been done due to  the  United  States  Air  Force  negligence  by
failing to inform him of this chemical imbalance and  providing  the  proper
medical care with further tests to find a proper treatment  schedule.   With
this incorrect diagnosis, without additional study, by the Endocrine  Doctor
and the extreme level of  cortisol  in  his  system  there  were  legitimate
grounds that demanded a Medical Board on his behalf.  The fact that a  hasty
Discharge Board was done where his medical conditions were  not  brought  to
the forefront or ignored shows that in this instance,  shortsightedness  and
extreme prejudice were evident.  This condition could  have  killed  him  or
incapacitated him even further than he is now due to this negligence.

He feels that promotions should also be considered during the  time  he  was
on the  weight  program  and  denied  testing  for  promotion,  as  well  as
increasing his discharge to include full retirement with all back  pay.   He
should have been allowed to gain pay grades and retire at 20 years.

Applicant’s response, with attachments, is at Exhibit I.

The applicant provided additional documentation which is at Exhibit J.

_________________________________________________________________

AIR FORCE EVALUATION:

The  BCMR  Medical  Consultant  reviewed  this  case  a  second   time   and
recommended  denial  indicating  the  medical  evidence  submitted  by   the
applicant does not establish that he  suffered  from  an  endocrinologic  or
other medical condition that prevented him from losing weight while  serving
on active duty.  If  present,  a  subtle  chronic  endocrinologic  condition
causing inability to lose weight (based on records present  since  childhood
and stable over 15 years of service) did not interfere with  performance  of
military duties and disability processing  would  not  have  resulted  in  a
disability retirement, at most, a disability separation,  but  as  likely  a
return to  duty  determination.   Hypothyroidism  developing  several  years
after discharge is not evidence of the presence of hypothyroidism  while  in
service especially since repeated  testing  while  in  service  was  normal.
Action and disposition in this case  are  proper  and  equitable  reflecting
compliance with Air Force directives that implement the law.  No  change  in
the records is warranted based on submitted evidence.

The evaluation is at Exhibit L.

_________________________________________________________________

APPLICANT'S REVIEW OF AIR FORCE EVALUATION:

The applicant reviewed the evaluation and indicated it  appears  that  false
information may have been used against him, and supporting evidence  to  his
case was removed from his medical record (attached) and made unavailable  to
the defense by the prosecution referred to in the  discharge  board  summary
as the recorder.

Unless it is legal for the prosecution to withhold or  remove  key  evidence
to make it unavailable to the  defense,  a  great  breach  of  protocol  was
evident by the prosecution in this case.  This evidence would have been  key
to his case, allowing him to remain in the service  and  retire  by  getting
the needed treatment to lose the necessary weight.

Since there is evidence of misconduct in this case  by  the  Judge  Advocate
General’s office and  possibly  the  Air  Force  medical  community,  it  is
obvious that misleading information was given to the defense  and  discharge
board, and key information was removed from  his  medical  records.   It  is
also quite evident that  there  was  in  fact  an  extremely  high  cortisol
reading that was ignored and put where it was not available to the  defense.
 It is now obvious the military stacked the proverbial deck against him.

Applicant’s response, with attachment, is at Exhibit N.



The applicant provided additional documentation which is at Exhibit O.

_________________________________________________________________

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 an error or  an  injustice.   After  thoroughly  reviewing  the
evidence of record, we are convinced the  applicant’s  separation  from  the
Air Force was in accordance with Air  Force  policy.   His  contentions  are
duly noted; however, in our opinion, the detailed comments provided  by  the
AFBCMR Medical Consultant adequately address these allegations.   Therefore,
we are in agreement with the comments  and  recommendation  of  the  Medical
Consultant and adopt his rationale as the basis for our  decision  that  the
applicant has not been the victim of either an error or injustice.  In  this
respect, the applicant’s service personnel, available medical  records,  and
evidence submitted by the applicant do  not  indicate  he  suffered  from  a
medical condition that prevented him from losing  weight  while  serving  on
active duty, nor from preventing him from  doing  his  duty.   In  fact,  it
appears he  was  given  ample  opportunity  to  lose  weight  and  in  fact,
demonstrated he could lose weight.  With regard to the issue  of  retirement
under the provisions  of  TERA,  we  note,  Congress  enacted  the  TERA  on
23 October 1992 and it ended on 1 October 1999, later extended by law  to  1
September 2002.  The applicant was honorably discharged from the  Air  Force
on 6 March 1989, over three years prior to the  Congressional  authorization
and was  therefore,  not  eligible  for  the  TERA  because  the  law  which
permitted early retirement was not in effect at the time of  his  discharge.
In view of the above and in the absence of  evidence  to  the  contrary,  we
find no compelling basis to recommend favorable action on this application.

________________________________________________________________

THE BOARD DETERMINES THAT:

The applicant be notified the evidence presented  did  not  demonstrate  the
existence of an error or an injustice; the application was denied without  a
personal appearance; and 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-2004-
02928 in Executive Session on 22 September 2005,  under  the  provisions  of
AFI 36-2603:

            Mr. Christopher D. Carey, Panel Chair
            Ms. Sue A. Lumpkins, Member
            Ms. LeLoy W. Cottrell, Member

The following documentary evidence was considered:

   Exhibit A.  DD Form 149, dated 23 Sep 04, w/atchs.
   Exhibit B.  Applicant's Master Personnel Records.
   Exhibit C.  Letter, AFPC/DPPRRP, dated 4 Oct 04
   Exhibit D.  Letter, SAF/MRBR, dated 8 Oct 04.
   Exhibit E.  Letter, Applicant, dated 18 Oct 04.
   Exhibit F.  Letter, AFBCMR, dated 25 Feb 05.
   Exhibit G.  Letter, BCMR Medical Consultant, dated 19 Apr 05.
   Exhibit H.  Letter, AFBCMR, dated 21 Apr 05, w/atch.
   Exhibit I.  Letter, Applicant, dated 18 May 05, w/atchs.
   Exhibit J.  Letter, Applicant, dated 25 May 05, w/atchs.
   Exhibit K.  Letter, AFBCMR, dated 27 Jun 05.
   Exhibit L.  Letter, BCMR Medical Consultant, dated 29 Jun 05.
   Exhibit M.  Letter, AFBCMR, dated 30 Jun 05, w/atch.
   Exhibit N.  Letter, Applicant, dated 15 Jul 05, w/atch.
   Exhibit O.  Letter, AFBCMR, dated 8 Aug 05.
   Exhibit P.  Letter, Applicant, dated 16 Aug 05, w/atchs.




                                CHRISTOPHER D. CAREY
                                Panel Chair