RECORD OF PROCEEDINGS
             AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS

IN THE MATTER OF:      DOCKET NUMBER:  BC-2005-02391
            INDEX NUMBER:  145.00
            COUNSEL: Mr. GARY MYERS

            HEARING DESIRED:  YES

MANDATORY CASE COMPLETION DATE:  24 AUG 2007

_________________________________________________________________

APPLICANT REQUESTS THAT:

1.  His records be corrected to show he was permanently  disability  retired
with an honorable discharge in the grade of technical sergeant (E-6)  on  13
August 2004.

2.  His administrative discharge, demotion from E-6 to E-4,  general  (under
honorable conditions) discharge, and his  Reserve  service  from  14  August
2004 to 22 February 2005 be expunged from his record.

3.  He receive retirement pay beginning 13 August 2004.

4.  He  be  reimbursed  for  all  attorney  fees  and  other   miscellaneous
expenses.

5.  The indefinite restriction from Dover AFB placed upon him be abolished.

_________________________________________________________________

APPLICANT CONTENDS THAT:

While on active duty he was diagnosed with periodontal disease that  limited
his flight status, which he believes, was an act of  racial  discrimination.
He believes the positive  urinalysis  stemmed  from  medications  prescribed
after he referred himself to the Albert Einstein Medical Center.  There  was
no established chain of custody with respect to the positive urinalysis  and
military  procedures  were  not  followed.   According  to   the   pre-trial
confinement order, the alleged amphetamine use occurred on 9 February  2004,
the same day he tested negative  for  amphetamine  use  at  Albert  Einstein
Medical Center.  He  was  diagnosed  while  on  active  duty  with  a  major
depressive disorder, which is a medically  unfitting  condition  and  should
have been processed by a Medical Evaluation Board (MEB).  The Reserves  used
his active duty misconduct and personality disorder to form  the  basis  for
the administrative separation action and  demotion.   The  Reserves  had  no
jurisdictional  basis  to  initiate  such  proceedings  for  conduct   which
occurred while on active duty.  The Reserves initiated a  separation  action
based largely on misconduct.  Then, after he waived the Board, the  Reserves
converted the separation to a character  and  behavior  disorder  discharge.
Had the misconduct not been firstly alleged,  and  only  the  character  and
behavior disorder been used, he would not have waived the board.

In support of his request, the applicant submits a  personal  statement,  DD
Form 214, Certificate of Release or Discharge from Active  Duty,  a  Request
for Extension of Active Duty Activation, excerpts from his medical  records,
DD  Form  458,  Charge  Sheet,  a  Memorandum  for   Pretrial   Confinement,
Notification of Discharge Memorandum and Reserve Order A-116.

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

_________________________________________________________________

STATEMENT OF FACTS:

The applicant entered the Reserves on 26 November 1986 and  was  trained  to
be an Aircraft Loadmaster.  On 9 February 2004, the applicant self  referred
himself to the Montgomery County Hospital for evaluation and  treatment  for
symptoms of psychosis, mood  disturbance  or  mania.   He  reported  to  the
attending physician that he had thoughts of killing his commanding  officer,
others on the base  and  then  himself.   A  specimen  was  taken  from  the
applicant on 9 February 2004, and the lab results  were  negative  for  drug
use.  A subsequent urinalysis test was positive for  amphetamines.    On  13
February 2004 the  applicant  was  discharged  from  the  Montgomery  County
Hospital and referred to Walter Reed  Army  Medical  Center  (WRAMC)  as  an
inpatient.  On 25 February 2004 the wing commander  directed  the  applicant
be held in pretrial  confinement,  based  on  the  grounds  that  there  was
reasonable doubt  to  believe  the  applicant  used  methamphetamines  on  9
February  2004,  and  for  communicating  threats  on  9-24  February  2004.
Charges against the applicant  were  referred  to  a  Special  Court-Martial
(SPCM) on  20  May  2004.   The  specific  charges  and  violations  of  the
Uniformed Code of Military Justice were;  violation  of  the  UCMJ,  Article
134, in that the applicant did, at or near Washington, D.C., on or about  21
February 2004, wrongfully communicate to  second  lieutenant  __________  at
the WRAMC a threat to wit: “I don’t want to see no commander, if I  have  to
see him I will hurt him, I will kill him,” or words to that  effect;  on  or
about  21  February  2004,  wrongfully  communicate  to  second   lieutenant
_____________ at the WRAMC a threat to wit” “I’m so angry that  I  may  just
choke the driver and that car may just run off the road and  kill  us  all,”
or words to that effect; violations of the UCMJ, Article 115  from  about  9
February 2004 to 15 March 2004, for the purpose of avoiding his duty as a C-
5 Loadmaster  Apprentice  feign  mental  illness;  violation  of  the  UCMJ,
Article 86, on or about 12 May 2004, without authority, fail to  go  at  the
time prescribed to his  appointed  place  of  duty,  to  wit;  a  commander-
directed mental health evaluation, at the Naval Medical Center,  San  Diego,
California.  On 12 august 2004, all charges referred to the SPCM on  20  May
2004 were withdrawn without prejudice.

On 13 August 2004, the applicant was notified by his commander that  he  was
recommending he be discharged from the Reserves under the provisions of  AFI
36-3209, for  Personality  Disorder  and  Misconduct.   The  commander  also
notified the applicant that he received the  results  of  the  sanity  board
conducted on 13 July 2004, which  indicated  he  had  a  mental  disease  or
defect at the time of  the  alleged  criminal  conduct  and  based  on  this
information the staff judge  advocate  recommended  to  the  SPCM  convening
authority that the court-martial charges be withdrawn.  On 16  August  2004,
the applicant was indefinitely barred from Dover  AFB  and  ordered  not  to
reenter the base.

On 13 December 2004, the applicant was notified by  his  commander  that  he
was recommending he be discharged from the  Reserves  for  Commission  of  a
Serious Offense; Conduct  Prejudicial  to  good  Order  and  Discipline  and
Character  and  Behavior  Disorders  with  an  under  honorable   conditions
discharge.  He acknowledged receipt of the package on 14 January  2005,  and
requested an administrative discharge board.   He  submitted  a  conditional
waiver to a discharge  board  in  return  for  receiving  a  general  (under
honorable conditions) discharge.

On 27 January 2005, he was demoted to the grade of senior airman.

The Secretary of the Air Force  Personnel  Council  denied  lengthy  service
probation on 18 February 2005.  (Exhibit B)

On 19 February 2005, he was administratively discharged  from  the  Reserves
for Conditions that Interfere with Military Service Character and  (Behavior
Disorders), under the provisions of  AFI  36-3209,  with  a  general  (under
honorable conditions) discharge.

_________________________________________________________________

AIR FORCE EVALUATIONS:

AFRC/DPZ recommends denial and states  all  the  issues  identified  in  the
applicant’s request have been previously addressed by the Air Force  Reserve
Command.  The applicant has not provided  documentation  to  support  making
any changes to the current status of these issues.

The DPZ evaluation, with attachments, is at Exhibit C.

_________________________________________________________________

APPLICANT'S REVIEW OF AIR FORCE EVALUATIONS:

The  applicant  states  the  toxicology  report  from  the  Albert  Einstein
Hospital has established he never engaged in the use of illegal  drugs.   In
a letter dated 10 February 2005, a physician  from  Dover  AFB,  states  the
drug screen he took was for medical use and no chain of custody  system  was
used.  In regard to his  conflicting  responses  to  civilian  and  military
medical personnel, he states he  didn’t  trust  them  to  act  in  his  best
interest.  He forwards a copy of a DD Form 1042, Medical Recommendation  for
Flying or Special  Operational  Duty  that  clears  him  to  fly.   Once  he
realized that his command had unrestricted influence  on  his  medical  care
with  military  medical  personnel,  he  sought  treatment   with   civilian
physicians.  His wife nearly died in December 2003 from  a  serious  medical
condition. He was in pain due  to  an  automobile  accident  and  was  being
antagonized by his command, and he received no  support  from  them.   After
trying to resolve the matter at  the  lowest  level,  he  sought  outpatient
treatment at life skills.  When this failed and the matter became  volatile,
he checked himself into the hospital.

In regard to the conditional waiver request, the  applicant  states  he  was
following the advice of his  attorneys.   He  took  the  mental  examination
under duress, which was a condition to be released from jail.   During  this
examination he exerted his rights  under  the  fifth  amendment  of  the  US
Constitution.  His attorney advised him to waive his rights  and  take  what
was offered and file a motion to have  the  discharge  upgraded.   While  in
jail he did not  receive  proper  legal  assistance.   He  believes  he  was
blatantly discriminated against by his squadron.

The applicant states prior to this entire ordeal his  character  was  beyond
reproach and it was only after he filed a  complaint  against  the  squadron
that he was discredited by the mental health examination and the false  drug
charge.

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

_________________________________________________________________

AIR FORCE ADDITIONAL EVALUATIONS:

AF/JAA  recommends  corrective  action  and  states  in  part,  AFI  48-123,
attachment 2, listed conditions requiring MEB  processing  for  active  duty
members.  Psychoses,  Psychoneuroses,  Other  Axis  I  Diagnosis  and  Other
mental conditions were listed in paragraph A2.12 as conditions requiring  an
MEB.   Moreover,  paragraph  4.25  of  AFI  36-3209  indicates   that   dual
processing of the  discharge  is  required  when  a  member  is  subject  to
involuntary discharge and eligible for disability separation  or  disability
retirement pursuant to AFI 36-3212.  Further, the discharge  should  not  be
executed before the  disability  processing  has  been  completed.   In  the
interests of proper resolution of this case and to preserve the record,  JAA
recommends the BCMR obtain a medical advisory to determine  if  an  MEB  was
required prior to applicant’s discharge from active duty.   JAA  notes  that
the evidence  does  not  support  misconduct  as  a  basis  for  applicant’s
separation from the Air Force Reserves.  The positive  drug  test  from  the
Montgomery County Emergency Service (MCES)  on  14  February  2004,  is  not
supported by subsequent verification  by  military  authorities.   Moreover,
applicant was given drugs at the Albert  Einstein  Medical  Center  the  day
prior and urinalysis results were negative.  Further, there is  no  evidence
that proper chain of custody procedures were  followed  by  MCES.   Finally,
applicant was diagnosed with a mental disease or defect  during  the  period
of his alleged  misconduct.   The  pre-discharge  legal  review,  which  JAA
concurs, noted that conditions that interfere with military service  is  the
appropriate reason for discharge, not misconduct.  Because no less  than  an
honorable  discharge  is  warranted  for  such  discharge  actions,  it   is
concluded that the applicant has suffered an error or injustice at least  to
that extent, and appropriate corrective action is recommended.

The complete evaluation is at Exhibit F.

The BCMR Medical Consultant opines that  issues  of  equity  may  reasonably
lead the Board to consider  granting  partial  relief.   He  summarizes  the
applicant's complete medical history and states in part  that  it  is  clear
that the applicant’s conduct, while he knew right from  wrong,  was  related
to his personality disorder.  He opines that the Board may  consider  equity
regarding the decision to discharge under provisions for unsuitability  with
an honorable as opposed to misconduct with  a  general.   Alternatively,  if
the Board concludes  his  depression  was  unfitting,  he  opines  that  the
depressive symptoms at the time of separation were mild, and  when  combined
with the very  significant  contribution  his  non-ratable,  non-compensable
personality disorder made to his  overall  disability,  that  a  compensable
rating  of  no  greater  than  10  percent  may  be  considered  leading  to
disability discharge with  severance  pay.   An  alternative  option  is  to
conclude the applicant’s unfitting condition (depression) existed  prior  to
service (evidence suggests psychiatric care prior  to  activation)  and  was
not permanently  aggravated  beyond  natural  course  of  the  condition  by
service and change records to show he was honorably discharged  for  a  non-
duty related disability.  This option affords him entitlement to  a  15-year
Reserve retirement under Title 10 Section 12731b (Reserve members with  more
than 15, but less than 20 years of satisfactory service  towards  retirement
who are medically disqualified due  to  a  non-duty-related  disability  are
eligible for a Reserve retirement  under  provisions  of  Title  10  Section
12731b; member discharged for a duty related  disability  are  not  eligible
for a 15-year retirement under this provision).

The complete evaluation, is at Exhibit H.

_________________________________________________________________

APPLICANT'S REVIEW OF ADDITIONAL AIR FORCE EVALUATIONS:

The  applicant’s  attorney  states  the  advisory  opinions  recommended  an
honorable discharge and the possibility of  a  medical  board.   They  agree
with both propositions, and also agree that some form of medical  disability
relief is appropriate as the medical advisory opinion suggested.

The complete response, is at Exhibit J.

_________________________________________________________________

THE BOARD CONCLUDES THAT:

1.  The applicant has exhausted all remedies provided  by  existing  law  or
regulations.

2.  The application was timely filed.

3.  Sufficient relevant evidence  has  been  presented  to  demonstrate  the
existence of error or injustice with regard  to  the  processing  procedures
used when the applicant was separated from active duty.   The  Board  is  of
the opinion, that since the applicant was experiencing mental health  issues
during  the  time  which  preceded  his  administrative  discharge,  and   a
psychiatric evaluation concluded at the time  of  the  charged  offense  the
applicant was suffering  from  major  depressive  disorder  and  personality
disorder with schizotypal features, it would have  been  more  equitable  to
base his discharge on his diagnosed unfitting condition of depression,  that
existed prior to service and  was  not  permanently  aggravated  beyond  the
natural course of  the  condition  by  service.   In  view  of  the  medical
problems, which were apparent, we believe  he  should  have  been  honorably
discharged for unsuitability.  This action affords him entitlement to a  15-
year Reserve retirement under Title  10  Section  12731b.   The  board  also
believes the applicant’s rank should be restored to the grade  of  technical
sergeant since prior to the involuntarily demotion action, he was  diagnosed
with a mental illness.   Accordingly,  we  recommend  that  his  records  be
corrected to the extent indicated below.

4.  Insufficient evidence has been presented to  demonstrate  the  existence
of error or injustice.  We believe the Commander of Dover AFB, acted  within
his discretionary authority when ordering the applicant not to enter or  re-
enter that military installation.  In the  absence  of  persuasive  evidence
the Commander abused  this  discretionary  authority,  the  Board  finds  no
compelling basis to recommend favorable consideration  of  this  portion  of
the application.

5.  The Board is  without  authority  to  award  attorney  fees  and  costs;
therefore, no action can be taken regarding this issue.

6.  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 RECOMMENDS THAT:

The pertinent military records of the Department of the Air  Force  relating
to APPLICANT, be corrected to show that:

            a. On 27 January 2005, he  was  not  demoted  to  the  grade  of
senior airman.

            b. On 18 February 2005,  he  was  found  unfit  to  perform  the
duties, rank, grade of his office,  due  to  depression  (existed  prior  to
service),  DVA  diagnostic  code  9440;  the  disability  was  not  due   to
intentional misconduct or willful  neglect;  that  the  disability  was  not
permanently aggravated beyond natural course of  the  condition  by  service
and that the disability was not a direct result of armed conflict or  caused
by an instrumentality of war.

            c. On 19 February 2005, he was not  administratively  discharged
with a character of service of general (under honorable conditions), but  on
that date he was honorably transferred to the Retired Reserve  Section,  and
his name was placed on the USAF Reserve Retired List, eligible  for  retired
pay at age 60, under the provisions of Title 10, USC, Section 12731b.

_________________________________________________________________

The following members of the Board considered this application  in Executive
Session on 19 April 2007, under the provisions of AFI 36-2603:

            Mr. Thomas S. Markiewicz, Chair
            Mr. James A. Wolffe, Member
            Ms. Maureen B. Higgins, Member

All members voted to correct the  record,  as  recommended.   The  following
documentary evidence was considered for AFBCMR Docket Number BC-2005-02391:

      Exhibit A.  DD Form 149, dated 20 Jan 06, w/atchs.
      Exhibit B.  Applicant's Master Personnel Records.
      Exhibit C.  Memo, AFRC/DPZ, dated 2 Nov 05, w/atchs.
      Exhibit D.  Letter, SAF/MRBR, dated 10 Nov 05.
      Exhibit E.  Letter, Applicant, dated 18 Nov 05, w/atchs.
      Exhibit F.  Memo, USAF/JAA, dated 26 Oct 06.
      Exhibit G.  Memo, BCMR Medical Consultant, dated 21 Nov 06.
      Exhibit H.  Letter, AFBCMR, dated 21 Nov 06, w/atchs.
      Exhibit I   Letter, Counsel, dated 18 Feb 07.





               THOMAS S. MARKIEWICZ
               Chair



AFBCMR BC-2005-02391




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 APPLICANT, be corrected to show that:

            a. On 27 January 2005, he  was  not  demoted  to  the  grade  of
senior airman.

            b. On 18 February 2005,  he  was  found  unfit  to  perform  the
duties, rank, grade of his office,  due  to  depression  (existed  prior  to
service),  DVA  diagnostic  code  9440;  the  disability  was  not  due   to
intentional misconduct or willful  neglect;  that  the  disability  was  not
permanently aggravated beyond natural course of  the  condition  by  service
and that the disability was not a direct result of armed conflict or  caused
by an instrumentality of war.

            c. On 19 February 2005, he was not  administratively  discharged
with a character of service of general (under honorable conditions), but  on
that date he was honorably transferred to the Retired Reserve  Section,  and
his name was placed on the USAF Reserve Retired List, eligible  for  retired
pay at age 60, under the provisions of Title 10, USC, Section 12731b.






  JOE G. LINEBERGER

  Director

  Air Force Review Boards Agency