RECORD OF PROCEEDINGS
             AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS


IN THE MATTER OF:      DOCKET NUMBER:  BC-2005-02008
            INDEX CODE: 105.01
      XXXXXXX    COUNSEL:  NONE

            HEARING DESIRED:  YES

MANDATORY CASE COMPLETION DATE:  24 Dec 06

_________________________________________________________________

APPLICANT REQUESTS THAT:

His 1995 bad conduct discharge (BCD) be upgraded.

_________________________________________________________________

APPLICANT CONTENDS THAT:

His molestation of his daughter was directly related to the  onset  of
Huntington’s disease, which runs in his family  and  is  an  inherited
condition not easily identified in the early stages except for changes
in usual behavior.  This mitigation was not recognized at the time  of
his  discharge.   The  disease  is  progressively   catastrophic   and
terminal.  He needs compensation and a pension from the Department  of
Veterans Affairs (DVA) for his ongoing care.  He  is  presently  in  a
nursing home.

In support of his request, applicant provided articles  pertaining  to
his disease, neurological evaluations of  himself  and  his  identical
twin brother (who had Huntington’s and committed suicide in 1998), and
a statement from  a  neurologist  confirming  the  applicant  has  had
Huntington’s disease since 1997.  The applicant’s father and  paternal
grandfather also  had  the  disorder.   The  neurologist  states  that
hypersexuality, including pedophilic disorders, has been documented as
manifestations of this disease and the disorder likely contributed  to
the applicant’s behavior.  The  applicant’s  mother  assisted  him  in
preparing his submission and indicated, while there was no  reason  to
suspect Huntington’s disease  prior  to  the  applicant’s  conviction,
given the subsequent diagnosis his behavior was due to  the  onset  of
the disease.

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

_________________________________________________________________

STATEMENT OF FACTS:

The applicant enlisted in the Regular  Air  Force  on  22 Nov  85  and
served as  a  ground  radio  communications  technician.   Performance
reports through Jun 93 document excellent duty performance.

In Jul 93, the applicant was discovered to have been sexually  abusing
his daughter on divers occasions over the period from about  1 Oct  88
to about 20 May 93.

The applicant pled guilty to and was found guilty of the above acts at
a general  court-martial  (GCM),  and  was  sentenced  to  five  years
confinement and a  BCD.   The  sentence  was  adjudged  on  9 Nov  94.
According to GCM Order No. 65, dated 19 Dec 94, the  sentence  of  BCD
and four years confinement was affirmed.

The AFBCMR Medical  Consultant  provides  a  detailed  medical  review
(Exhibit C) and indicates the applicant’s service medical records  and
personnel  records  reveal  no  complaints   of   movement   disorder,
disturbances of mood  or  cognition  or  impulse  control  other  than
molesting his daughter. While incarcerated, the applicant  learned  of
his family history of Huntington’s disease and presented  in  Oct  94,
reporting the family history and experiencing sleep difficulty due  to
nocturnal limb movement since Jul 93 when his offenses  became  known.
During mental health  sessions  in  Oct  and  Nov  94,  the  applicant
reported his own  sexual  and  emotional  abuse  as  a  child  through
adolescence.  A 17 Nov 04 exam documented the presence of trace tremor
of both upper extremities but otherwise no movement disturbances.   No
psychiatric  condition  was  detected  by  examining   mental   health
professionals.

The applicant was separated with a BCD in the grade of staff  sergeant
on 27 Jan 95, after 7 years, 11 months and 2 days of  active  service,
and was later released from confinement in either late 1996  or  early
1997 as can be inferred from medical documents.

In  Jul  95,  the  applicant’s  twin  brother   was   diagnosed   with
Huntington’s disease.  In  Apr  97,  at  age  32,  the  applicant  was
diagnosed with symptomatic Huntington’s disease (Huntington’s  chorea)
including positive genetic testing.

_________________________________________________________________

AIR FORCE EVALUATION:

The AFBCMR Medical Consultant  opines  the  preponderance  of  medical
evidence and unique aspects of this case provide a potential basis for
the Board to consider upgrading the applicant’s discharge to  general.
The Consultant provides detailed  information  regarding  Huntington’s
disease and notes there is substantial anecdotal observation of sexual
disorders in patients with this disease. Among the  least  common  are
paraphilias  (e.g.,  exhibitionism,  fetishism,  pedophilia  including
report of incest, sexual masochism, cross dressing, voyeurism, obscene
phone calls, and others).  It is unknown how often a paraphilia  would
be expected to be present in a  pre-symptomatic  Huntington’s  disease
patient by chance alone without a causal relationship to the  disease.
At the time of his offenses, there was no evidence the  applicant  was
manifesting clinical symptoms of the disease or that he did  not  know
right from  wrong  and  was  unable  to  adhere  to  the  right.   His
misconduct was limited to the sexual molestation of his  daughter  and
his duty performance was  otherwise  noted  to  be  outstanding.   The
neurologist’s opinion that the applicant was  developing  Huntington’s
disease while on active duty and it  contributed  to  the  applicant’s
molestation of his daughter  is  plausible.  While  governing  statute
places  significant  restrictions  on  correcting  records  in   cases
involving court-martial proceedings, the Board is allowed to change  a
court-martial  sentence  on  the  basis  of  clemency  (not  error  or
injustice).  If the  Board  were  to  change  the  BCD  to  a  general
discharge on the basis of clemency the applicant would be eligible for
veteran’s benefits.

The Consultant’s evaluation is at Exhibit C.

________________________________________________________________

APPLICANT'S REVIEW OF AIR FORCE EVALUATION:

At the request of the applicant’s mother, nurses’  notes  and  medical
records from River Crest Nursing and Rehabilitation for the period May-
Sep 06 were forwarded under a cover letter dated 5 Sep 06.

The letter, with attachments, is provided at Exhibit E.

_________________________________________________________________

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.  We find no  evidence  indicating
the applicant’s service characterization, which had its basis  in  his
conviction by general court-martial and was a part of the sentence  of
the military court, was improper or exceeded the limitations set forth
in  the  Uniform  Code  of  Military  Justice  (UCMJ).  While  statute
restricts the corrective action a Board may take with respect to court-
martial cases, a member’s sentence can be  changed  on  the  basis  of
clemency if circumstances warrant.  In this regard, we took notice  of
the applicant's complete submission in judging the merits of his case.
 We also noted the  AFBCMR  Medical  Consultant’s  opinion  that  “the
preponderance of medical evidence and  unique  aspects  of  this  case
provide a potential  basis  for  the  Board  to  consider  upgrade  of
discharge to general.”  However, after  much  discussion  and  careful
consideration, we believe upgrading the applicant’s BCD to general  on
the basis of clemency would be inappropriate.  According to his guilty
plea and finding at  a  general  court-martial,  the  applicant  began
sexually abusing his daughter in Oct  88.   In  Oct  94,  he  reported
experiencing sleep difficulty due to nocturnal limb movement since Jul
93,  when  his  offenses  were  discovered.   The  Medical  Consultant
reported that review of the applicant’s service medical and  personnel
records found no complaints of movement disorder, disturbances of mood
or cognition, or impulse control other than molesting his daughter.  A
17 Nov 94 exam documented the presence of trace tremor of  both  upper
extremities but otherwise no movement  disturbances.   No  psychiatric
condition was detected by the examining mental  health  professionals.
The applicant’s twin brother was diagnosed with the  disorder  in  Jul
95, and he was diagnosed with symptomatic Huntington’s disease in  Apr
97.  While  there  is  substantial  anecdotal  observation  of  sexual
disorders  with  patients  having  Huntington’s  disease,  paraphilias
(e.g., incestuous pedophilia) are among the least common.   Throughout
the molestation period,  there  was  no  evidence  the  applicant  was
manifesting  clinical  symptoms  of  Huntington’s  disease  and,  most
significantly, did not know right from wrong and was unable to  adhere
to the right.  This, in the final analysis, led us to  the  conclusion
that his court-martial  and  sentence  were  appropriate.   Since  the
available evidence does not clearly establish  a  causal  relationship
between Huntington’s disease and  his  molestation  of  his  daughter,
which began in 1988, we are reluctant to upgrade the  applicant’s  BCD
on the basis of clemency.  We  are  not  unsympathetic  regarding  the
applicant’s severe medical condition or unmindful  of  the  burden  it
places on him and his family. However, in view of the above and absent
persuasive evidence to the contrary, we find no  compelling  basis  to
recommend granting the relief sought in this application.

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 21 September 2006 under the provisions of AFI 36-
2603:

                 Mr. Michael K. Gallogly, Panel Chair
                 Mr. Joseph D. Yount, Member
                 Mr. Gregory A. Parker, Member

The following documentary evidence relating to AFBCMR Docket Number BC-
2005-02008 was considered:

  Exhibit A.  DD Form 149, dated 17 Apr 06, w/atchs.
  Exhibit B.  Applicant's Master Personnel Records.
  Exhibit C.  Letter, AFBCMR Medical Consultant, dated 15 Aug 06.
  Exhibit D.  Letter, SAF/MRBR, dated 18 Aug 06.
  Exhibit E.  Letter, River Crest Nursing & Rehabilitation,
                       dated 5 Sep 06, w/atchs.




                                   MICHAEL K. GALLOGLY
                                   Panel Chair