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AF | BCMR | CY2007 | BC-2006-01439
Original file (BC-2006-01439.doc) Auto-classification: Denied

RECORD OF PROCEEDINGS
             AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS

IN THE MATTER OF:      DOCKET NUMBER: BC-2006-01439

            COUNSEL: NONE

            HEARING DESIRED:  NO


MANDATORY CASE COMPLETION DATE: 13 NOVEMBER 2007

_________________________________________________________________

APPLICANT REQUESTS THAT:

His records be corrected to reflect he received a medical discharge.
_________________________________________________________________

APPLICANT CONTENDS THAT:

He should have received a medical discharge rather  than  a  general  (under
honorable conditions) discharge.

In support of his application, applicant submitted a personal statement  and
a Department of Veterans Affairs (DVA) rating decision.

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

_________________________________________________________________

STATEMENT OF FACTS:

The applicant enlisted in the Regular Air Force (RegAF) on 12 July 1956,  as
an basic airman (AB) for a period of four years.

On 4 December 1959, the applicant’s  commander  notified  him  that  he  was
recommending him for discharge from the Air Force (AF) under the  provisions
of Air Force Regulation (AFR) 39-16 for substandard  conduct  and  character
and behavior disorder.  The specific reasons for the discharge action are:

      a.    On 17 October 1959,  the  applicant  was  convicted  by  Special
Court-Martial for being absent without leave (AWOL).

      b.    On 13 November 1959, the applicant underwent a command  directed
psychiatric evaluation and was diagnosed with asocial  (amoral)  personality
(character and behavior disorder).

On 28 December 1959 an  evaluation  officer  was  appointed  to  review  the
applicant’s case.  The evaluation officer conducted an  interview  with  the
applicant, reviewed the applicant’s records and comments by  his  commander,
and recommended the applicant be  discharged  from  the  Air  Force  due  to
unsuitability with a general discharge.

On 11 January 1960,  the  discharge  authority  directed  the  applicant  be
discharged with a general discharge.

Applicant was discharged on 14 January 1960, in the grade of  airman  basic.
He served a total of 3 years, 2 months and 15 days of active service.

The applicant filed a claim in July 2005 with  the  Department  of  Veterans
Affairs (DVA) for hearing loss and tinnitus.  On 27 September 2005, the  DVA
granted the applicant a service connected disability rating of 40 percent.

Pursuant to the  Board’s  request,  the  Federal  Bureau  of  investigation,
Washington, D.C., indicated on the basis of the  data  furnished  they  were
unable to locate an arrest record (Exhibit C.)

____________________________________________________________

AIR FORCE EVALUATION:

The BCMR Medical Consultant is of the opinion that no change in the  records
is  warranted.    The   applicant   was   administratively   separated   for
unsuitability after conviction by special court-martial for being  AWOL  and
a mental health evaluation diagnosing a  character  and  behavior  disorder.
The applicant’s discharge and characterization of service was in  accordance
with the Air Force policies and procedures.   The  applicant  was  diagnosed
with a mild  to  moderate  hearing  loss  at  the  time  of  his  separation
examination that did not interfere with the performance of  his  duties  and
was not disqualified for continued military service.

The military service disability systems, operating under Title 10,  and  the
Department of Veterans Affairs  (DVA)  disability  system,  operating  under
Title  38,  are  complementary  systems  not  intended  to  be  duplicative.
Operating  under  different  laws  with  a  different  purpose,  independent
decisions/determinations made by the DOD under Title 10 and  the  DVA  under
Title 38 are not determinative or binding on decisions made  by  the  other.
By  law,  payment  of  DVA  disability  compensation  and  military  pay  is
prohibited.

BCMR Medical Consultant's complete evaluation is at Exhibit D.

_________________________________________________________________

APPLICANT'S REVIEW OF AIR FORCE EVALUATION:

The applicant reviewed the Air Force evaluation  and  states  he  was  never
given  any  disciplinary  action  for  bad  checks,  disturbing  the  peace,
disorderly conduct, or conduct unbecoming  an  airman.   He  was  tried  for
being AWOL, but there  were  extenuating  circumstances.   His  brother  was
killed in an automobile accident while he was AWOL.  He  attempted  to  turn
himself in but an air policeman he talked  with  recommended  he  stay  AWOL
until after the funeral as it could not  be  guaranteed  that  he  would  be
released from custody to attend the funeral.

In regards to the mental health evaluation, he spent a total of  10  minutes
with a psychiatrist and there is no way the psychiatrist could have made  an
accurate evaluation of his mental health in that short of a period of  time.
 He disagrees with the psychiatrist’s evaluation that  he  had  a  character
and behavior disorder stating that he was amoral.  Since his  discharge,  he
was married to the same woman for 36 years, giving her total  care  for  the
last five years of her life as she was diabetic and had  both  of  her  legs
amputated, was  blind,  kidney  failure,  liver  failure,  congestive  heart
failure and breathing disorder.  If he was amoral as that doctor said he  is
sure that he would not have taken care of his wife like he did (Exhibit F).

_________________________________________________________________

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.  The  applicant  is  requesting  his
records be corrected to reflect he received  a  medical  discharge  due  to
hearing loss.  The applicant was involuntarily separated for  unsuitability
and  a  mental  health  diagnosis  of  character  and  behavior   disorder.
Applicant’s contentions are duly noted; however, we agree with the  opinion
and recommendation of the AFBCMR Medical Consultant and adopt his rationale
as the basis for our conclusion that the applicant has not been the  victim
of an error or injustice.  The applicant’s character and behavior  disorder
was the primary basis for his discharge but the character  of  service  was
determined by his misconduct.  The applicant’s medical condition was not of
the severity to warrant evaluation under the disability evaluation  system.
Nor, did his medical condition prevent him from performing  the  duties  of
his  rank,  experience  or  prevented  assignment   to   military   duties.
Furthermore, at the time of the applicant’s separation examination  it  was
determined he had a mild hearing loss; however, a  review  of  his  medical
records did not show any complaints of hearing loss  that  interfered  with
the performance of his duties.  Therefore, we believe the processing of the
discharge and the characterization of the discharge  were  appropriate  and
accomplished in accordance with Air Force policy.

4.    Former servicemembers are authorized treatment  from  DVA  under  the
provisions of Title 38, USC.  Title 38,  USC  allows  the  DVA  to  provide
compensation for  servicemembers  who  incur  a  service-connected  medical
condition while on active duty and to increase or decrease  the  disability
rating based on the seriousness of medical condition throughout the  former
servicemember’s life span.  We note the applicant currently has a  combined
DVA disability rating of 40 percent and is appropriately receiving care and
compensation from the DVA.  Therefore, in the absence of  evidence  to  the
contrary, we find no compelling basis  to  recommend  granting  the  relief
sought in this application.

_________________________________________________________________

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 AFBCMR Docket Number  BC-2006-
01439 in Executive Session on 18 July 2007 under the provisions of  AFI  36-
2603:

                       Mr. Thomas S. Markiewicz, Chair
                       Ms. Barbara R. Murray, Member
                       Mr. Richard K. Hartley, Member

The following documentary evidence was considered:

      Exhibit A. DD Form 149, 27 Apr 06, w/atchs.
      Exhibit B. Applicant's Master Personnel Records.
      Exhibit C. Negative Reply.
      Exhibit D. Letter, BCMR Medical Consultant, dated 30 Mar 07.
      Exhibit E. Letter, SAF/MRBR, dated 6 Apr 06.
      Exhibit F. Letter, Applicant, dated 13 Apr 07.




                             THOMAS S. MARKIEWICZ
                             Chair

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