RECORD OF PROCEEDINGS
             AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS

IN THE MATTER OF:      DOCKET NUMBER:  BC-2010-00082

            COUNSEL:  NONE

            HEARING DESIRED:  YES

__________________________________________________________________

APPLICANT REQUESTS THAT:

His Bad Conduct Discharge (BCD) be upgraded to Honorable.

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APPLICANT CONTENDS THAT:

      1.  He received a BCD after trying to get the Air Force  to  help  him
with an addiction.  He is  asking  for  his  permanent  military  record  to
reflect the whole of his military service, which was honorable.

      2.  While deployed to Iraq in  2006,  he  was  exposed  to  the  harsh
realities of war and was  diagnosed  with  Post  Traumatic  Stress  Disorder
(PTSD).  During that same year, he began seeing  a  family  practice  doctor
who started him on Oxycodone for pain associated with two bulging  discs  in
his back.  After almost five months of legal  use,  he  began  to  feel  the
addictive properties of the drug.  In 2007, he self-identified to  the  Base
Alcohol and Drug Abuse Prevention and Treatment (ADAPT)  program.   However,
he was not provided  the  proper  treatment  for  an  opiate  addiction  and
shortly after asking for and not receiving the  proper  help  began  writing
prescriptions for Oxycodone.  After he was caught,  he  started  to  receive
the help he needed, but it was too  late  and  he  was  court-martialed  and
discharged with a BCD.

In support of his appeal the applicant submits a timeline of his use of  the
drug Oxycodone, extracts of his medical records, documents  related  to  his
court-martial, and an article about soldiers and the use of drugs.

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

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STATEMENT OF FACTS:

Based on information provided by  the  Air  Force  Legal  Operations  Agency
Military Justice Division, the applicant in  November  2007,  then  a  staff
sergeant, was tried at a general court martial.  In May 2007, the  applicant
return a positive urine  test  indicating  use  of  the  prescription  drugs
Oxycodone and Oxymorphone.  A subsequent investigation showed the  applicant
had been falsely writing prescriptions for himself.  The applicant was  also
accused of assaulting a fellow  airman  and  unlawfully  carrying  concealed
weapons on an Air Force installation.  He was eventually  charged  with  one
specification of wrongful possession of a controlled substance in  violation
of  Article  112a,  Uniform  Code  of  Military  Justice  (UCMJ),  and  four
specifications of making  prescriptions  with  the  intent  to  defraud,  in
violation of  Article  128,  UCMJ,  and  two  specifications  of  unlawfully
carrying concealed weapons, in violation of Article 134, UCMJ.  He pled  not
guilty  to  the  charges  and  specifications  and  they  were  subsequently
withdrawn after arraignment in accordance with a pretrial agreement.

The applicant was sentence by a military judge to a BCD, confinement for  87
days and reduction to the grade of  airman  basic  (E-1).   On  20  December
2007,  the  convening  authority  approved  the  findings  and  sentence  as
adjudged and on 12 Sep 08, the Air Force Court of Criminal Appeals  approved
the findings and sentence as adjudged.  The United States Court  of  Appeals
for the Armed Forces denied a petition by the  applicant  requesting  review
of  the  conviction.   Consequently,  the  findings  and  sentence  in   the
applicant’s case were considered final and conclusive  under  the  UCMJ  and
his discharge was executed on 9 Mar 09.

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AIR FORCE EVALUATION:

AFLOA/JAJM recommends denial of the applicant’s request.

The  applicant  has  identified  no  error  or  injustice  related  to   her
prosecution or the sentence.  Prior to  the  trial,  the  applicant  entered
into a pretrial agreement.  The agreement specified the applicant agreed  to
plead  guilty  to  the  charges  and   specifications   regarding   wrongful
possession of a controlled  substance  and  making  prescriptions  with  the
intent to defraud for which the convening authority agreed (along with  some
administrative considerations) to  withdraw  and  dismiss  the  charges  and
specifications regarding assault and carrying concealed weapons and to  also
not approve a sentence that  exceeded  time  served  in  confinement  or  to
approve a dishonorable discharge if it was  adjudged.   Prior  to  accepting
the applicant’s guilty  plea,  the  military  judge  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.

On the court’s acceptance  of  the  applicant’s  guilty  plea,  it  received
evidence in aggravation, as well as extenuation  and  mitigation,  prior  to
crafting an appropriate sentence for the crimes  committed.   The  applicant
mad an unsworn statement in his own behalf and the defense  also  introduced
some character statements asking for leniency. The military judge  took  all
of these factors into consideration when imposing the applicant’s sentence.

While clemency may be granted under 10  U.S.C.,  Section  1552(f)  (2),  the
applicant has not provided any new information that  was  not  available  to
the military judge for his consideration at trial.  The applicant  was  able
to relate in his unsworn statement his contention that he self-referred  for
help with his addiction and that the Air  Force  did  not  give  him  proper
treatment.   The applicant also has not  provided  any  support  that  would
warrant consideration of clemency in his case.  Clemency in this case  would
be offensive to all those individuals who served honorably by extending  the
same Veterans’ benefits to  someone  who  committed  a  crime  such  as  the
applicant.

The complete AFLOA/JAJM evaluation is at Exhibit C.

The BCMR Medical Consultant makes no recommendation in this case.

The  applicant  has  a  medical  history  of  low  back   pain,   reportedly
experienced during a deployment.  He had  been  previously  prescribed  non-
narcotics  to  manage  his  pain.   There  is  evidence  he  was  eventually
prescribed Percocet, a narcotic.  There  is  insufficient  medical  evidence
available to make further comments on the choice of prescription versus  the
option to refer the applicant to a  Pain  Management  specialist  or  pursue
other modalities.  Realizing the  applicant  has  not  requested  a  medical
basis for separation, it is clear he would like the Board  to  consider  his
efforts  to  self-identify  for  a  possible  addiction.   Aside  from   the
applicant’s proactive and proper  behavior  in  seeking  help,  the  Medical
Consultant sees no  mitigation  in  the  false  prescriptions  he  produced,
particularly noting that it may not have been the  pain,  but  the  euphoria
that produced the  desired  effect.  There  are  no  definitive  answers  to
questions related to whether the applicant was suffering from PTSD  or  that
he was indeed addicted (it is noted he denied  any  adverse  symptoms  on  a
post-deployment questionnaire).

The Medical Consultant empathizes  with  the  applicant  in  that  he  self-
identifies prior to any official legal  actions  being  taken  against  him.
However, after self-identifying and  completing  the  initial  6-hour  ADAPT
course, he then elected to commit illegal acts.

The complete BCMR Medical Consultant advisory is at Exhibit D.

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APPLICANT'S REVIEW OF AIR FORCE EVALUATION:

Copies of the JAJM and BCMR Medical Consultant  evaluations  were  forwarded
to the applicant on 21 September 2010  for  review  and  comment  within  30
days.  To date, a response has not been received (Exhibit D).

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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.

3.  Insufficient relevant evidence has been  presented  to  demonstrate  the
existence of error or injustice.  We took notice of  the  comments  provided
by the BCMR Medical Consultant; however, we agree with AFLOA/JAJM’s  opinion
and recommendation and adopt its rationale as the basis for  our  conclusion
that the applicant has not been the victim of an  error  or  injustice.   In
view of the minimal time passed since his discharge, we are not inclined  to
exercise clemency in this case.   Therefore, in the absence of  evidence  to
the contrary, we find no basis to recommend granting  the  relief  sough  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 this application in  Executive
Session on Date 19 Oct 10, under the provisions of AFI 36-2603:

      , Panel Chair
      , Member
      , Member

The following documentary evidence was considered in  AFBCMR  Docket  Number
BC-2010-00082:

    Exhibit A.  DD Form 149, dated 31 Dec 09, w/atchs.
    Exhibit B.  Applicant's Master Personnel Records.
    Exhibit C.  Letter, AFLOA/JAJM, dated 17 Feb 10.
    Exhibit D.  Letter, Medical Consultant, dated 15 Sep 10.
    Exhibit E.  Letter, SAF/MRBR, dated 21 Sep 10.




                                   Panel Chair