RECORD OF PROCEEDINGS
AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS


IN THE MATTER OF:	DOCKET NUMBER:  BC-2008-00319
		INDEX CODE:  110.00
		COUNSEL:  NONE
		HEARING DESIRED:  YES

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APPLICANT REQUESTS THAT:

His under other than honorable conditions (UOTHC) discharge be 
upgraded to an honorable discharge and he be placed on the 
Temporary Disability Retired List (TDRL) with a 30% disability 
rating.

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APPLICANT CONTENDS THAT:

He was unfairly discharged from the Air Force.  He was denied a 
physical disability discharge.  He was scared into taking an 
administrative discharge.  He was never given the opportunity to 
submit evidence.  There was not enough evidence to prosecute 
him.

In support of his request, the applicant provided a personal 
statement and documents extracted from his military personnel 
records.

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

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STATEMENT OF FACTS:

Applicant enlisted in the Regular Air Force on 27 July 1988 in 
the grade of airman basic.

In February 1992, court-martial charges were brought against the 
applicant for the following:

	  a. The applicant did on or about 6 February 1991 attempted 
to steal money ($18,895.00) from the American Concept Insurance 
Company.

	  b. The applicant did on or about 18 April 1991 and on or 
about 27 April 1991, steal sixty-four compact discs valued at 
more than $100.00, property of the Air Force.

	  c. The applicant did on or about 18 April 1992 and 27 April 
1992, unlawfully enter a dormitory room with intent to commit 
larceny.

	  d. The applicant did on or about 27 March 1991, present an 
Air Force Form 180 to the staff judge advocate, a claim against 
the United States in the amount of $894.75 for a video camera, 
which claim was false in the amount of $894.75 in that the 
camera was not missing from the applicant's hold-baggage 
household goods shipment, and was then known by applicant to be 
false.

	  e. The applicant did on or about 6 February 1991, make a 
false official statement.

On 1 April 1992, the applicant requested discharge in lieu of 
trial by court-martial.  

On 18 May 1992, the commander approved the applicant’s request 
for discharge in lieu of trial by court-martial.  He recommended 
the applicant be furnished a UOTHC discharge without probation 
and rehabilitation.

On 28 May 1992, the discharge authority concurred with the 
recommendations and directed a UOTHC discharge, without 
probation and rehabilitation.  

In a legal review of the case file, the staff judge advocate 
found the case legally sufficient and recommended discharge. 

The applicant was involved in a motor vehicle accident in 
September 1990 while serving a tour of duty at Aviano Air Base, 
Italy.  He suffered injuries to the left elbow, left knee, and a 
left femur fracture.

A Medical Evaluation Board (MEB) convened on 5 August 1992 and 
referred his case to an Informal Physical Evaluation Board 
(IPEB) with a diagnosis of bilateral knee pain.  On 19 August 
1992, the IPEB found him unfit for further military service and 
recommended discharge with a combined compensable rating of 20%.  
The applicant disagreed with the findings and recommended 
disposition of the IPEB and requested an FPEB.  On 2 October 
1992, the FPEB found him unfit for further military service 
based on a compensable diagnosis of left knee pain with missing 
inferior pole of left patella and degenerative joint changes, 
status post surgical removal of inferior pole after fracture 
from automobile accident in September 1990.  The FPEB further 
recommended the applicant be placed on the TDRL with a 
compensable rating of 30%.  The applicant agreed with the 
findings and recommended disposition of the FPEB.

On 16 December 1992, the Secretary of the Air Force Personnel 
Council (SAFPC) determined that the applicant's previously 
approved AFR 39-10 action should be executed, terminating the 
pending action under the provisions of AFR 35-4, the policy 
governing physical evaluation for retention, retirement, medical 
separations.

Applicant was discharged with an UOTHC discharge on 7 January 
1993.  He served 4 years, 5 months and 11 days on active duty.

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AIR FORCE EVALUATION:

AFPC/DPSD recommends denial.  DPSD states the applicant 
initiated a request on 1 April 1992 for discharge in lieu of 
trail by court-martial.  The applicant was facing charges that 
involved the alleged theft of property from the dormitory room 
of another Air Force member whose room adjoined his own, and who 
had died in an automobile accident.  Additionally, he was 
charged with trying to defraud an insurance company by 
submitting a false claim.  He did not succeed on either count.  
There was no real loss to any victim, and whatever sentence the 
applicant would have received from a court would have been 
relatively light.  Without a real victim to vindicate, 
administrative action would accomplish as much, at least in a 
practical sense, as would a court-martial conviction.  

The applicant was undergoing an MEB for diagnosis of left knee 
pain with missing inferior pole of left patella and degenerative 
joint changes after fracture from an automobile accident in 
1990.  On 2 October 1992, the IPEB reviewed the medical case 
file and recommended temporary retirement with a 30% disability 
rating.  Due to the court-martial action, the applicant's 
medical board process was stopped.  Per AFR 35-4, Section 1-5, 
paragraph a., "A member under sentence that does not involve 
dismissal or punitive discharge is not usually eligible for 
disability evaluation until final disposition of the sentence of 
charges."  Once the applicant was offered discharge in lieu of 
court-martial it became a dual action case and the medical board 
should have been allowed to process.

The complete DPSD evaluation is at Exhibit C.

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APPLICANT'S REVIEW OF AIR FORCE EVALUATION:

On 4 April 2008, a copy of the Air Force evaluation was 
forwarded to the applicant for review and comment within 30 days 
(Exhibit D).  As of this date, this office has received no 
response.

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AFBCMR MEDICAL CONSULTANT EVALUATION:

The AFBCMR Medical Consultant recommends denial.  The AFBCMR 
Medical Consultant states the applicant requested, was granted, 
and accepted a UOTHC discharge in lieu of trial by court-
martial.  Due to the aforementioned medical issues, the 
applicant was concurrently the subject of a medical separation 
(TDRL) with a 30% disability rating.  The final disposition of 
concurrent administrative and medical separations is determined 
by the Secretary of the Air Force Personnel Council (SAFPC).  In 
performing this "dual-action" review and determination, the 
SAFPC collectively addresses the severity of the subject's 
medical condition(s), the nature of the administrative offenses, 
and seeks to establish a causal or mitigating relationship 
between the medical conditions and the acts of misconduct.  In 
the case under review, the SAFPC likely found no causal or 
mitigating relationship between the applicant's administrative 
violations and his medical condition(s) and executed its 
authority to separate the applicant under the previously 
approved AFR 39-10 action.  

The Medical Consultant did not set out to re-litigate the 
applicant's case, noting his disagreement with the actions taken 
by this commander and the 10 points he raised; citing his lack 
of guilt, the physical impairment he endured, the proximity to 
completing his tour of duty, his efficiency ratings, and 
reported good citizenship since his discharge, among other 
factors.  Based upon a preponderance of evidence in the 
applicant's case, the AFBCMR Medical Consultant found no 
evidence of an error or injustice in executing the applicant's 
discharge, the establishment of the narrative reason for 
discharge, or his service characterization.  

Notwithstanding the serious nature of the charges brought 
against the applicant, the Board may, however, consider as a 
matter of clemency, upgrading the applicant's discharge 
characterization to general (under honorable conditions) noting 
his otherwise commendable service and letters of commendation, 
and the doubts raised regarding the validity of some of the 
evidence brought against him, thereby allowing him the 
opportunity to receive the benefit of health care of the 
Department of Veterans Affairs.  The AFBCMR Medical Consultant 
acknowledges that the applicant may have developed other medical 
conditions, with a possible origin during his military service, 
e.g., post-traumatic stress disorder, and malunion of the left 
femur fracture.  However, the current state of the applicant's 
health has no bearing upon the medical facts that were present 
at the time of his separation; a time in which the 
aforementioned conditions were likely not diagnosable.

The AFBCMR Medical Consultant's evaluation is at Exhibit D.

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APPLICANT'S REVIEW OF AFBCMR MEDICAL CONSULTANT EVALUATION:

The applicant reviewed the evaluation and states he feels that 
he is being falsely accused of a crime he did not commit and 
denied the retirement he rightfully deserves.  He never was 
given back his personal property that was confiscated by the 
AFOSI.  Receipts for these items were enclosed in the original 
package.  He was not allowed by his defense attorney to provide 
evidence; the information he is providing now.  He should have 
received a court-martial and took the minimal sentence or no 
sentence at all.  Then he would have received a 30% TDRL rating 
which did not include the serious medical malpractice by gross 
malunion of his femur by 53-plus degree inward rotation.  He is 
now in a wheelchair because of that operation.  He received no 
compensation for his permanent disability, which was clearly the 
fault of the military.  He will state under oath that he did not 
commit the alleged offenses.  Since he was the only one frauded 
and suffered permanent physical and mental damage, approving the 
TDRL and granting a general (under honorable conditions) 
discharge seems to be a minimal but fair request.  He deserves 
to have base and commissary privileges.

The applicant's complete response is at Exhibit G.

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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 injustice warranting 
approval of the requested corrective actions.  The applicant’s 
contentions are duly noted; however, after reviewing the 
evidence of record, it appears the applicant did in fact go 
through the Disability Evaluation System (DES) and was the 
subject of an involuntary administrative discharge action during 
the same time frame.  It was determined by the Secretary of the 
Air Force that the discharge action be executed, terminating 
processing under the DES.  Therefore, since it appears that the 
applicant received full and fair consideration by all levels of 
review and he has not provided any evidence which would lead us 
to believe he was denied rights to which he was entitled, we 
find no compelling basis to recommend granting the relief 
sought.

4.  Notwithstanding the above, although we find no impropriety 
in the characterization of applicant's discharge.  Considered 
alone, we conclude the discharge proceedings were proper and 
characterization of the discharge was appropriate to the 
existing circumstances.  Consideration of this Board; however, 
is not limited to the events which precipitated the discharge.  
Further, we may base our decision on matters of equity and 
clemency rather than simply on whether rules and regulations 
which existed at the time were followed.  Under our broader 
mandate and after careful consideration of all the facts and 
circumstances of applicant's case, we are persuaded that some 
form of corrective action is appropriate as a matter of equity 
and on the basis of clemency.  Therefore, as recommended by the 
AFBCMR Medical Consultant, we agree that under the circumstances 
of this case, it would be appropriate to upgrade the applicant's 
discharge to general.  Therefore, it is our recommendation that 
his records should be corrected as indicated below.

5.  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 issues involved.  
Therefore, the request for a hearing is not favorably 
considered.

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THE BOARD DETERMINES THAT:

The pertinent military records of the Department of the Air 
Force relating to APPLICANT be corrected to show that on 7 
January 1993, he was discharged with service characterized as 
general (under honorable conditions).

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The following members of the Board considered this application 
in Executive Session on 29 January 2009, under the provisions of 
AFI 36-2603:

			XXXXXXXXXXXXXXX, Panel Chair
			XXXXXXXXXXXXXXX, Member
			XXXXXXXXXXXXXXX, Member

The following documentary evidence pertaining to AFBCMR Docket 
Number BC-2008-00319 was considered:

   Exhibit A.  DD Form 149, dated 10 September 2007, w/atchs.
   Exhibit B.  Applicant's Master Personnel Records.
   Exhibit C.  Letter, AFPC/DPSD, dated 10 March 2008.
   Exhibit D.  Letter, SAF/MRBR, dated 4 April 2008.
   Exhibit E.  Letter, AFBCMR Medical Consultant,
		        dated 9 December 2008.
   Exhibit F.  Letter, SAF/MRBR, dated 12 December 2008.
   Exhibit G.  Letter, Applicant, dated 8 January 2008.





				XXXXXXXXXXXXX
				Panel Chair





AFBCMR BC-2008-00319




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 XXX, be 
corrected to show that on 7 January 1993, he was discharged with service characterized as 
general (under honorable conditions).

      .





	XXXXXXXXXXXXXX
	Director
	Air Force Review Boards Agency