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AF | BCMR | CY2008 | BC-2008-00180
Original file (BC-2008-00180.doc) Auto-classification: Denied

                            RECORD OF PROCEEDINGS
             AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS

      IN THE MATTER OF:            DOCKET NUMBER:  BC-2008-00180
            INDEX CODE: 110.00
      XXXXXXX                     COUNSEL:  NONE
                                   HEARING DESIRED:  YES

______________________________________________________________

APPLICANT REQUESTS THAT:

1.  His discharge be changed from general (under honorable  conditions)  to
honorable.

2.  He receive retroactive retirement, pay and benefits.

________________________________________________________________

APPLICANT CONTENDS THAT:

He was discharged with over 20 years of active duty based upon  a  hearing,
rather than a Uniform Code of Military Justice court-martial.   During  the
course of his incarceration in the county jail  and  his  release,  he  was
under the Baker-Act and was medivaced to Wilford Hall  Medical  Center  and
prescribed (forced) lithium and zyprexa.  This produced lithium toxicity in
his brain, rendering him incompetent and unable to defend  himself  against
felony charges and the hearing for discharge.   Due  to  injustices,  gross
negligence and incompetence by the Air Force psychiatric care  at  Randolph
AFB,  Eglin  AFB  and  the  Florida  Department  of  Corrections.   He  was
misdiagnosed as having a  bipolar  disorder  and  was  wrongfully  declared
mentally incompetent.

In support of his request, the applicant submits a personal statement, data
extracted from his military  medical,  DVA,  personnel  records  and  other
various associated documents.

His complete submission, with attachments, is at Exhibit A.

________________________________________________________________

STATEMENT OF FACTS:

The applicant enlisted in the Regular Air Force on 7 December 1982.

On 24 June 2002, he signed an AF Form 1160,  Military  Retirement  Actions,
requesting a 1 January 2003 retirement  date.   His  retirement  order  was
approved on 8 July 2002.  His order reflected he  would  retire  1  January
2003 with 20 years and 24 days of Total  Active  Federal  Military  Service
(TAFMS).
On 12 August 2002, his duty status was changed from  present  for  duty  to
civilian confinement.  Upon his release from civilian confinement,  he  had
lost 101 days.  As a result, he no longer had sufficient TAFMS to retire on
1 January 2003.  His TAFMS date was adjusted to 18 March 1983 and his  Date
of Separation (DOS) adjusted from  7 January  2003  to  18  April  2003  to
reflect the lost time.  He was eligible for retirement on 1 April 2003.

On 28 January 2003, he was notified that an  administrative  discharge  was
being initiated under AFI 36-3208,  Administrative  Separation  of  Airmen,
"commission of  a  serious  offense,"  for  committing  indecent  acts  and
liberties with minor female  friends  of  his  daughter.   He  acknowledged
receipt of this notification and requested a hearing.   The  administrative
discharge  board  recommended  discharge  with  service  characterized   as
“general” without  probation  and  rehabilitation.   At  the  time  of  the
administrative discharge board, he was under  civil  charges  and  civilian
courts had judicial jurisdiction over him.  The Air Force could not try him
by court-martial while a civilian court held judicial jurisdiction.

An  IPEB  concurrently  found  him  unfit  for  duty  because  of  physical
disability and recommended he be given a disability retirement.  Because he
became eligible to retire on 1  April  2003,  his  case  was  forwarded  to
Secretary of the Air Force Personnel Council (SAFPC) for dual processing.

Air Force Instructions requires dual action processing when  an  airman  is
subject to involuntary discharge and is also eligible for retirement.   The
instruction also requires dual action processing when an airman is  subject
to involuntary discharge and  is  eligible  for  disability  separation  or
disability retirement.  In his case, he had an 18 April 2003 DOS and became
eligible for retirement on 1 April 2003.  Just prior to 1 April  2003,  the
administrative discharge board met (20-21 March 2003) and the IPEB  met  on
21 March 2003.  Because the boards were held so  close  to  his  retirement
eligibility date of 1 April 2003, his case was not processed under  lengthy
service but under dual action.  In  order  to  await  the  outcome  of  his
involuntary separation, he voluntarily  extended  his  enlistment  from  18
April 2003 to 18 June 2003.

On 30 May 2003, he submitted an AF Form 1160 requesting a  retirement  date
of 1 July 2003.  The application was forwarded and considered by SAFPC.  On
17 June 2003, SAFPC directed the execution of  the  approved  AFI  36-3208,
Administrative Separation of Airmen action.

On 27 June 2003, he was discharged for misconduct in the  grade  of  master
sergeant  with  service   characterized   as   general   (under   honorable
conditions).

He served a total of 20 years 3 months and 9 days on active duty.
Pursuant to the Board’s  request,  the  Federal  Bureau  of  Investigation,
Washington,  DC,  provided  an  investigation  report.   A  copy   of   the
investigative report was provided to the  applicant  on  6  May  2008,  for
review and comment within 30 days and to date no response has been received
(Exhibit C).

________________________________________________________________

AIR FORCE EVALUATION:

AFPC/DPPD recommends denial.  DPPD states the applicant was referred to  the
IPEB on 21 March 2003 for bipolar disorder.  The IPEB recommended  permanent
retirement with a disability rating of 0%, as he had over  20  years  active
service and did not need to meet the minimum  30%  required  for  retirement
rating.  On 26 March  2003,  he  concurred  with  the  findings.   DPPD  was
notified he was being processed for an administrative discharge.   His  case
was forwarded to SAFPC on 15  April  2003.   SAFPC’s  memo,  17  June  2003,
terminated the action under the  provisions  of  AFI  36-3212  and  directed
discharge under  the  provisions  of  AFI  36-3208.   The  preponderance  of
evidence reflects that no error or injustice occurred  during  the  physical
disability process or at the time of separation.

The complete DPPD evaluation is attached at Exhibit D.

________________________________________________________________

AFPC/DPSOR  recommends  denial  of  his  request  to  receive   retroactive
retirement, pay and benefits.  DPSOR  states  if  SAFPC  had  approved  his
retirement, DPSOR would have had the authority to approve  his  request  to
retire 1 July 2003 in lieu of the administrative  discharge  action.   With
SAFPC’s decision to execute the administrative  discharge  decision,  DPSOR
had no authority to take action to retire him.

The complete DPSOR evaluation, with attachments, is attached at Exhibit E.

________________________________________________________________

APPLICANT'S REVIEW OF AIR FORCE EVALUATION:

The applicant responded and provided  additional  correspondence  he  would
like used in the final decision of his requests to receive  his  retirement
pay and benefits retroactive to 27 June  2003  due  to  a  misdiagnosis  of
bipolar disorder and subsequent forced ingestion of lithium.  He  has  been
abstinent, and refrained  from  any  and  all  use  of  antidepressants  or
psychotropic drugs since December 2004.


His complete response, with attachments, is at Exhibit G.

________________________________________________________________

ADDITIONAL AIR FORCE EVALUATION:

The BCMR Medical  Consultant  recommends  denial.   The  Medical  Consultant
states  he  acknowledges  the  applicant's  disagreement  with  the   mental
diagnoses that he received and his  resultant  initial  hospitalization  and
treatment  under  the  Baker-Act.    However,   other   than   his   written
disagreement with his diagnosis, the Medical Consultant finds  no  objective
evidence, such as a report from an alternate medical authority, the DVA,  or
a civilian medical institution, upon which to justify  invalidation  of  the
clinical diagnosis he received.  With reference  to  his  discharge  action,
the Medical Consultant found no evidence of an error  or  injustice  nor  an
inequity  or  impropriety  in  the  execution  of  his  discharge   or   the
characterization of his military service.

The complete Medical Consultant evaluation is attached at Exhibit H.

________________________________________________________________

APPLICANT'S REVIEW OF ADDITIONAL AIR FORCE EVALUATION:

A copy of the Medical Consultant evaluation was forwarded to applicant on  8
August 2008 for review and comment within 30 days.   As  of  this  date,  no
response has been received by this office (Exhibit I).

________________________________________________________________

THE BOARD CONCLUDES THAT:

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

2.  The application was timely filed.

3.  Insufficient relevant evidence has been  presented  to  demonstrate  the
existence of an error or injustice.   After  careful  consideration  of  the
available evidence, we found no indication the actions taken to  effect  his
discharge and characterization of his service  were  improper,  contrary  to
the provisions of the governing instructions  in  effect  at  the  time,  or
based on factors other than his  own  behavior.   Furthermore,  we  are  not
persuaded by his assertions that the decision to discharge him from the  Air
Force  for  his  misconduct,  rather  than  permit   his   retirement,   was
inappropriate  or  unjust.   Therefore  we  agree  with  the  opinions   and
recommendations of the Air  Force  offices  of  primary  responsibility  and
adopt their rationale as the basis for our  conclusion  that  the  applicant
has not been the victim of an error or injustice.

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 issues 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  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-2008-
00180 in Executive Session on 16 September 2008,  under  the  provisions  of
AFI 36-2603:


                 Mr.  Joseph D. Yount, Panel Chair
                 Mr.  Grover L. Dunn, Member
                 Mr.  Richard K. Hartley, Member

The following documentary evidence pertaining to AFBCMR Docket  Number  BC-
2008-00180 was considered:

      Exhibit A.  DD Form 149, dated 4 December 2007, w/atchs.
      Exhibit B.  Applicant's Master Personnel Records.
      Exhibit C.  FBI Report.
      Exhibit D.  Letter, AFPC/DPPD, dated 14 April 2008.
      Exhibit E.  Letter, AFPC/DPSOR, dated 24 March 2008, w/atchs.
      Exhibit F.  Letter, SAF/MRBR, dated 18 April 2008.
      Exhibit G.  Letter, Applicant, dated 5 May 2008, w/atchs.
      Exhibit H.  Letter, BCMR Medical Consultant,  dated  31  July
2008.
      Exhibit I.  Letter, SAF/MRBR, dated 8 August 2008.





                                   JOSEPH D. YOUNT
                                   Panel Chair

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