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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