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.
__________________________________________________________________
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.
__________________________________________________________________
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.
__________________________________________________________________
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.
__________________________________________________________________
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).
__________________________________________________________________
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
AF | BCMR | CY2009 | BC-2009-00524
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. 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. He has presented a very positive picture of his rehabilitation after his time in confinement.
AF | BCMR | CY2011 | BC-2011-01753
Pursuant to a pretrial agreement, the applicant pled guilty to the charge and specification and was sentenced in accordance with his plea by a military judge to a BCD, confinement for four months, and reduction to the grade of airman basic (E-1). A review of the Record of Trial does not support the applicants allegation of error or injustice. Therefore, based on the available evidence of record, we find no basis upon which to favorably consider this application.
AF | BCMR | CY2010 | BC-2010-01754
The sanity board found that, at the time of the alleged offenses, the applicant did suffer from severe mental disorders, but was able to appreciate the nature and wrongfulness of his conduct. The BCMR Medical Consultants complete evaluation is at Exhibit D. _________________________________________________________________ APPLICANT'S REVIEW OF AIR FORCE EVALUATION: Copies of the Air Force evaluations were forwarded to the applicant on 4 Feb 11 for review and comment within 30 days. We...
AF | BCMR | CY2011 | BC-2011-00145
On 27 Oct 58, the Air Force Board of Review affirmed the sentence from the rehearing. The applicants case received several reviews from the Staff Judge Advocate, the Air Force Board of Review and Court. Ultimately, there was no Article 32 hearing, the board was comprised of only officers, and the applicant was not provided a bilingual defense counsel or interpreter The opinion writer stated they did not have access to the court- martial records and cannot make a definitive decision...
AF | BCMR | CY2011 | BC-2011-01575
The military judge did an inquiry of the guilty pleas and found them provident and entered a finding of guilty for both charges and specifications. As for the applicants contention that her personal accomplishments were not considered during her trial and in her request for clemency, a review of the Record of Trial indicates that this was a decision she and her counsel made at the time. We find no evidence which indicates the applicants service characterization, which had its basis in...
AF | BCMR | CY2011 | BC-2011-02285
The AFLOA/JAJM complete evaluation is at Exhibit D. The AFBCMR Medical Consultant recommends denial noting the statements by the applicant's psychiatrist and her recent diagnosis of Bipolar Disorder is insufficient to justify a medical basis for discharge. The Medical Consultants complete evaluation is at Exhibit E. _________________________________________________________________ APPLICANT'S REVIEW OF AIR FORCE EVALUATION: Copies of the AFBCMR Medical Consultant evaluation and Air...
AF | BCMR | CY2011 | BC-2011-03284
RECORD OF PROCEEDINGS AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS IN THE MATTER OF: DOCKET NUMBER: BC-2011-03284 COUNSEL: HEARING DESIRED: NO _________________________________________________________________ APPLICANT REQUESTS THAT: His bad conduct discharge (BCD) be upgraded to a general. The complete JAJM evaluation is at Exhibit D. _________________________________________________________________ APPLICANT'S REVIEW OF AIR FORCE EVALUATION: A copy of the Air Force evaluation was...
AF | BCMR | CY2008 | BC-2008-00977
In support of his appeal, applicant submitted a personal statement, documents extracted from his military records and documentation associated with his LOD determination. He submitted a request for clemency and his request was denied. We find no evidence of error in this case and after thoroughly reviewing the documentation that has been submitted in support of his appeal, we do not believe he has suffered from an injustice.
AF | BCMR | CY2012 | BC-2012-04070
RECORD OF PROCEEDINGS AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS IN THE MATTER OF: DOCKET NUMBER: BC-2012-04070 COUNSEL: NONE HEARING DESIRED: NO _________________________________________________________________ APPLICANT REQUESTS THAT: His bad conduct discharge (BCD) be upgraded to general (under honorable conditions) or an honorable discharge. JAJM states the applicant does not allege an error or injustice, rather he believes the discharge should be upgraded due to the amount of...
AF | BCMR | CY2010 | BC-2009-01878
On 20 Mar 03, the Air Force Court of Criminal Appeals granted the applicant’s motion, making the findings and sentence in his case final and conclusive under the UCMJ. In fact, on his application for correction of his records, he states “no errors” and a review of the record of trial backs up his statement. _________________________________________________________________ The following members of the Board considered this application in Executive Session on 18 Mar 10, under the provisions...