RECORD OF PROCEEDINGS
         AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS


IN THE MATTER OF:      DOCKET NUMBER:  BC-2009-00524
            INDEX CODE:  126.03
            COUNSEL:  NONE
            HEARING DESIRED:  YES

_________________________________________________________________

APPLICANT REQUESTS THAT:

His records  be  corrected  to  reflect  a  general  (under  honorable
conditions discharge) or a pardon rather than dismissal.

_________________________________________________________________

APPLICANT CONTENDS THAT:

He was denied treatment for a substance  abuse  problem  and  did  not
receive adequate treatment  for  his  Bipolar  Disorder.   There  were
irregularities  in  the  investigation  and  prosecution.   A  written
confession was obtained without legal representation while  he  was  a
patient on the psychiatric ward.  While awaiting trial,  he  requested
that he be placed on leave to allow him to seek treatment at  his  own
expense, and was effectively denied the opportunity for rehabilitation
treatment.  Although he committed  the  charged  offenses,  mitigating
factors of  two  medical  disorders,  bipolar  disorder  and  chemical
dependency were not seriously  considered  in  regard  to  his  court-
martial.  There were no injuries to his patients and he was only  able
to obtain treatment after his dismissal from the Air Force.  Having  a
dismissal and a felony record has had a greater impact on  his  career
and prospects than the actual nine months he  spent  in  prison.   The
damage from the last 10 years is done.  Removing  the  dismissal  from
his record or obtaining a pardon might help him move on with his life.
 He is currently licensed as a physician in  North  Carolina.   He  is
completing a Nuclear Medicine fellowship  at  North  Carolina  Baptist
Hospital and plans to enter a fellowship  at  either  Duke  University
Medical Center or North Carolina Baptist Hospital.  He  remains  under
the care of a psychiatrist and is active in his ongoing recovery.

In support of the request, the applicant provides a  copy  of  his  DD
Form 214, Certificate of Release or Discharge from Active Duty, a copy
of his confession, a copy of a review of his radiologic  examinations,
a statement from his attorney, recovery
letters,  statements  of  support,  and  excerpts  from  his  military
personnel records.

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

_________________________________________________________________

STATEMENT OF FACTS:

He was commissioned in the Regular Air Force on 31  Jul  88,  and  was
progressively promoted to the grade of lieutenant colonel.

While he was assigned to the 60th Medical Diagnostics and Therapeutics
Squadron at Travis AFB, CA, he was charged with one  specification  of
failure to go to his place of duty, one specification of wrongful  use
of  lysergic  acid  diethylamide  (LSD),  and  one  specification   of
disorderly conduct.

He pled guilty to the charges and specifications and was sentenced  by
military  judge  to  a  dismissal,  confinement  for  13 months,   and
forfeiture of all pay and allowances.

The Air Force Court of Criminal  Appeals  affirmed  the  findings  and
sentence on 17 Jul 00.  He  petitioned  the  United  States  Court  of
Appeals for the Armed Forces for review of the conviction, and  on  21
Nov 00 the court denied that petition.  His dismissal was executed  on
30 Mar 01.

_________________________________________________________________

AIR FORCE EVALUATION:

AFLOA/JAJM recommends denial and states, in part, the  alleged  errors
or injustice identified by the applicant do  not  rise  to  the  level
which would warrant action by the Board.  The Record of Trial  in  the
applicant’s case does not contain  any  support  for  the  applicant’s
contentions that there were  significant  irregularities  which  could
have impacted the result in his trial.   The  applicant  contends  the
written  confession  was  obtained  from  him  under   dubious   legal
circumstances.  However, the evidence in the case  even  without  that
statement was overwhelming.  On the date in  question,  the  applicant
was found at his off-base residence when he should have  been  at  his
place of duty.  He was observed by numerous  individuals  in  a  state
consistent with being under the influence of a  controlled  substance.
His urinalysis was consensual, followed all of the  chain  of  custody
procedures and came back positive for LSD.  He entered into a pretrial
agreement wherein the applicant agreed to plead guilty to the  charges
and specifications, in exchange  for  which  the  convening  authority
agreed not to approve a sentence that exceeded 12  months.   Prior  to
accepting his guilty plea, the military judge meticulously ensured the
applicant understood the meaning  and  effect  of  his  plea  and  the
maximum punishment that could  be  imposed  if  his  guilty  plea  was
accepted by the court.  The military judge explained the elements  and
definitions of the offenses to which the applicant  pled  guilty,  and
the applicant explained in his  own  words  why  he  believed  he  was
guilty.

On the court’s acceptance of the applicant’s guilty plea, it  received
evidence in aggregation, as well as  in  extenuation  and  mitigation,
prior to crafting an appropriate sentence for  the  crimes  committed.
The defense focused in evidence and argument was on the fact that  the
applicant suffered from a substance addiction.  The applicant made  an
unsworn statement in his own behalf and the  defense  also  introduced
character statements asking for leniency.  The military judge took all
of these factors into  consideration  when  imposing  the  applicant’s
sentence.  The imposed sentence was well below  the  maximum  possible
sentence of a dismissal, confinement for five years and  five  months,
and total forfeitures of pay and allowances.

While clemency may be granted under 10 USC 1552(F)(2),  the  applicant
has not presented any information demonstrating that  such  action  by
the Board  would  be  appropriate.   The  applicant’s  diagnosis  with
bipolar disorder presents a somewhat  sympathetic  situation  for  the
Board’s consideration.  He has presented a very  positive  picture  of
his rehabilitation  after  his  time  in  confinement.   He  completed
inpatient  and  outpatient   substance   abuse   treatment   and   has
successfully resumed his professional career as  a  physician.   Those
facts do not erase the applicant’s past criminal conduct or  make  his
dismissal any less appropriate for  the  offenses  he  committed.   To
overturn this punishment now would require the Board to substitute its
judgment for that rendered by the court and  the  convening  authority
almost 10 years ago when the facts and  circumstance  were  fresh.   A
dismissal was and continues to be a part  of  a  proper  sentence  and
properly characterizes his service.

Clemency in this  case  would  be  unfair  to  those  individuals  who
honorably served their country while in uniform.  Congress’ intent  in
setting up the Veterans’ Benefit Program was  to  express  thanks  for
veterans’ personal sacrifices, separations from their  family,  facing
hostile enemy action and suffering financial hardships.  All rights of
a veteran under the laws administered by  the  Secretary  of  Veterans
Affairs are barred where the veteran was discharged  or  dismissed  by
reason of the sentence of a general court-martial.  This  makes  sense
if the benefit program is  to  have  any  real  value.   It  would  be
offensive to all  those  who  served  honorably  to  extend  the  same
benefits to someone who committed a  crime  such  as  the  applicant’s
while on active duty.

The complete AFLOA/JAJM evaluation is at Exhibit C.

_________________________________________________________________

APPLICANT'S REVIEW OF AIR FORCE EVALUATION:

A copy of the Air Force evaluation was forwarded to the  applicant  on
24 Apr 09, for review and comment within 30 days.  As of this date, no
response has been received by this office.

_________________________________________________________________

ADDITIONAL AIR FORCE EVALUATION:

The BCMR Medical Consultant recommends denial and states  in  part,  a
review of the applicant’s medical documentation indicates there was no
clinical evidence to substantiate the  existence  of  a  diagnosis  of
bipolar disorder prior to the date of the applicant’s  conviction  for
LSD use.  There were no  indicators  the  applicant  suffered  from  a
mental impairment noting his exemplary  performance  history  and  the
laudatory character letters submitted  on  his  behalf  prior  to  his
conviction or that he was unable to distinguish right  from  wrong  in
his decision to participate in the apparent exchange of money  for  an
assumed to  be  hallucinogen.   Records  indicate  the  applicant  was
entered into a chemical dependency clinic following his detention  for
substance abuse and other offenses and that an Air Force  psychiatrist
made the diagnosis after the offenses occurred.

The Medical Advisor acknowledges that substance abuse and poor impulse
control may accompany a  bipolar  disorder.   However,  prior  to  the
applicant’s arrest  and  subsequent  confinement,  no  evidence  of  a
diagnosis of bipolar disorder with chemical dependency could be  found
among the applicant’s  medical  documentation  or  his  administrative
performance history.  Therefore, it  is  reasonable  to  conclude  the
diagnosis  of  bipolar  disorder,  with  or  without  dependency,  was
submitted in view of evidence including  his  mental  health  history.
The Medical Advisor concludes the applicant has not met the burden  of
proof of an error or injustice to justify the requested change in  the
record.

The complete BCMR Medical Consultant’s evaluation is at Exhibit E.

_________________________________________________________________

APPLICANT'S REVIEW OF ADDITIONAL AIR FORCE EVALUATION:

A copy of the additional Air Force evaluation  was  forwarded  to  the
applicant on 27 Jul 09, for review and comment within 30 days.  As  of
this date, no response has been received by this office.

_________________________________________________________________

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  error  or  injustice.   We  took  notice  of  the
applicant's complete submission in judging the merits  of  the  case;
however, we agree with the opinions and recommendations  of  the  Air
Force offices  of  primary  responsibility  (OPRs)  and  adopt  their
rationale as the basis for our conclusion that the applicant has  not
been the victim of an error or injustice.  We find no evidence  which
indicates the applicant’s dismissal,  which  had  its  basis  in  his
conviction by general court-martial and was a part of the sentence of
the military court, was improper or that it exceeded the  limitations
set forth in the Uniform Code of Military Justice (UCMJ).   While  we
are precluded by law from reversing a  court-martial  conviction,  we
are authorized to correct the records to  reflect  actions  taken  by
reviewing officials and to take action on the sentence of a  military
court based on clemency.  While the evidence provided  indicates  the
applicant claims to have suffered  from  the  affects  of  a  bipolar
disorder, and notwithstanding his otherwise good service  record  and
post-service accomplishments, in view of the extreme  seriousness  of
the misconduct he committed, we do not believe clemency is  warranted
at this time.  Therefore, based on the available evidence of  record,
we find no basis upon which to favorably consider this application.

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  issue(s)   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 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-
2009-00524 in Executive Session on 20 Oct 09, under the provisions  of
AFI 36-2603:





The following documentary evidence was considered:

    Exhibit  A.  DD Form 149, dated 17 Feb 09, w/atchs.
    Exhibit  B.  Applicant's Master Personnel Records.
    Exhibit  C.  Letter, AFLOA/JAJM, dated 3 Apr 09.
    Exhibit  D.  Letter, SAF/MRBR, dated 24 Apr 09.
    Exhibit  E.  Letter, BCMR Medical Consultant, dated 23 Jul 09.
    Exhibit  F.  Letter, SAF/MRBR, dated 27 Jul 09.






                                   Panel Chair