RECORD OF PROCEEDINGS 

AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS 

 

 

IN THE MATTER OF: DOCKET NUMBER: BC-2010-04551 

 

 COUNSEL: NONE 

 

 HEARING DESIRED: NO 

 

 

________________________________________________________________ 

 

APPLICANT REQUESTS THAT: 

 

His records be corrected to reflect his name was placed on the 
temporary disability retired list (TDRL) with an honorable 
discharge in lieu of his General (Under Honorable Conditions) 
discharge for misconduct. 

 

________________________________________________________________ 

 

APPLICANT CONTENDS THAT: 

 

In a four page Brief of Counsel, Counsel contends the applicant 
was severely mentally impaired when he engaged in the misconduct 
that precipitated his court martial and subsequent 
administrative discharge. The Air Force erroneously determined 
his misconduct was unrelated to his diagnosed post-traumatic 
stress disorder (PTSD) and unjustly terminated his processing 
through the disability evaluation system (DES) in favor of his 
administrative discharge for misconduct. In making its decision 
to terminate the disability separation processing, the Secretary 
of the Air Force Personnel Council (SAFPC) highlighted the 
applicant’s selection to attend SOS as “particularly relevant” 
when determining that he should not be placed on the TDRL. The 
applicant is unemployed with a 100 percent disability rating 
from the Department of Veterans Affairs (DVA) and relies 
entirely on his DVA and Social Security Administration (SSA) 
disability payments for income. When the applicant’s 
outstanding achievements as a security forces officer who served 
in combat are balanced against the misconduct influenced by his 
PTSD and other disabilities, it is reasonable to conclude that 
he should be placed on the temporary disability retired list. 

 

In support of his request, the applicant provides a four page 
Brief of Counsel and copies of his DD Form 214, Certificate of 
Release or Discharge from Active Duty; AF Form 356, Findings and 
Recommended Disposition of the USAF PEB; DVA rating decision; 
Neuropsychological Evaluation and Treatment Summary; excerpts of 
testimony before his Board of Inquiry (BOI); and HQ AFPC/DPSDD 
memorandum related to his dual action processing. 

 

 

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

 

________________________________________________________________ 

 

STATEMENT OF FACTS: 

 

The applicant’s military personnel records indicate he was 
commissioned a second lieutenant (O-1), Reserve of the Air Force 
on 30 Sep 99 and was progressively promoted to the grade of 
captain (O-3), effective and with a date of rank of 30 Sep 03. 

 

On 13 Sep 06, the applicant was convicted at a general court-
martial of violating one specification of Article 134, Uniform 
Code of Military Justice (UCMJ), and two specifications of 
violating Article 92, UCMJ. Specifically, he was found guilty 
of fraternizing with an enlisted subordinate by allowing her to 
perform oral sex on him, and of an indecent act with the same 
enlisted subordinate by allowing her to perform oral sex on him 
while a senior master sergeant watched, masturbated, and gave 
direction to her. He was also convicted of impeding a criminal 
investigation by instructing a witness to lie to investigators 
and eliminate evidence. He was sentenced to 60 days 
confinement, forfeiture of $2250.00 pay per month for three 
months, and a reprimand. 

 

On 23 Oct 06, the applicant was notified by his commander of her 
intent to initiate action under AFI 36-3206, Administrative 
Discharge Procedures for Commissioned Officers, that required 
the applicant to show cause for his retention on active duty. 
The reasons for the action were that between 1 and 31 Dec 04, he 
committed the acts described above. 

 

On 11 Nov 06, after consulting with legal counsel, the applicant 
acknowledged receipt of the action and his understanding of his 
rights in the matter. 

 

On 16 Nov 06, the applicant submitted a conditional waiver of 
his right to a Board of Inquiry (BOI), contingent upon his 
receipt of no less than a General (Under Honorable Conditions) 
character of service. On 17 Nov 06, his request for a 
conditional waiver was denied. 

 

On 24 Apr 07, a BOI convened to hear the matter under review. 
After considering all the facts and evidence presented, the 
board found by a preponderance of the evidence the applicant 
committed an indecent act and endeavored to impede a criminal 
investigation. The BOI recommended he be separated with a 
General (Under Honorable Conditions) discharge. 

 

On 20 Jun 07, the Show Cause Authority, concurred with the 
findings of the BOI and recommended the applicant’s discharge 
from the Air Force with a General (Under Honorable Conditions) 
discharge. On 20 Jul 07, the case was found to be legally 


sufficient. On 15 Aug 07, the discharge authority concurred 
with the recommendation and forwarded the case to the Secretary 
of the Air Force Personnel Council (SAFPC) for dual action 
consideration. 

 

On 23 Aug 07, the Informal Physical Evaluation Board (IPEB) 
determined the applicant was unfit for continued military 
service for his diagnosis of PTSD with major depressive disorder 
and panic disorder with agoraphobia and considerable social and 
industrial adaptability impairment and recommended he be placed 
on the TDRL with a 50 percent disability rating. The applicant 
accepted the findings of the IPEB on 6 Sep 07 and waived his 
rights to further proceedings at the Formal Physical Evaluation 
Board (FPEB). 

 

On 9 Nov 07, SAFPC completed a dual-action review of the 
applicant’s disability and administrative separation cases and 
on 20 Nov 07, the Secretary’s designee directed he be 
administratively discharged, with service characterized as 
General (Under Honorable Conditions). The Secretary’s designee 
further directed the termination of his separation action for 
medical disability. 

 

On 6 Dec 07, the applicant was furnished a General (Under 
Honorable Conditions) discharge for Misconduct and was credited 
with eight years, two months, and seven days of total active 
service. 

 

The remaining relevant facts pertaining to this application are 
contained in the letters prepared by the appropriate offices of 
the Air Force which are at Exhibits C and D. 

 

________________________________________________________________ 

 

AIR FORCE EVALUATION: 

 

AFPC/DPSOS recommends denial, indicating there is no evidence of 
an error or injustice. The applicant met a Medical Evaluation 
Board (MEB) along with his administrative discharge board. 
SAFPC terminated the processing of his disability separation 
under the provisions of AFI 36-3212, Physical Evaluation for 
Retention, Retirement, and Separation, and directed he be 
administratively discharged under the provisions of AFI 36-3207, Separating Commissioned Officers. Based on the documentation on 
file and in the master personnel records, the discharge was 
consistent with the procedural and substantive requirements of 
the discharge regulation and within the discretion of the 
discharge authority. 

 

A complete copy of the AFPC/DPSOS evaluation is at Exhibit C. 

 

AFPC/JA recommends denial, indicating there is no evidence of an 
error or injustice. The crux of the applicant’s case is his 
allegation the Air Force unjustly determined that his misconduct 


was unrelated to his diagnosed PTSD disability. In particular, 
he cites opinionof his DVA doctor,written years after the 
fact, indicating that his combined symptoms/diagnosis of PTSDand Traumatic Brain Injury (TBI) could have directly led or 
contributed to the actions which led to his court martial and 
subsequent administrative discharge. He argues that SAFPC’sconclusionthat his PTSD and wrongful actions are unrelated is 
nonsensical.However, SAFPC did notactually assertthe 
disability and the misconduct were unrelated. Rather, SAFPC 
determined that hisdisability was not so severe that it excused 
his wrongful conduct.The DVA doctor himself never goes so faras to say the disability excused the misconduct, opining there could bea connection between the two. In fact, the connectionbetween hisPTSD and sexual misconduct is remote as asserted by 
the applicant himself in his unsworn statement during the BOI: 
“[p]lease do not infer from this statement that I am trying toexcuse my actions in Dec 04by blaming it on my medicalproblems, that is not my intent.” Testimony from another 
witness called by the applicant at the BOI indicated there are 
three clusters of symptoms for PTSD: re-experiencing symptoms(e.g., flashbacksand nightmares), avoidance symptoms (e.g., 
avoiding talking about the trauma), and hyper-arousal symptoms 
(e.g., sleep disturbance, anger, and hyper-vigilance). The 
symptoms of PTSD simply do not include sexual relations with a 
military subordinate. Additionally, Counsel argues the 
applicant’s academic failure while attending SOSisevidence theapplicant’scognitive abilities were impaired by his PTSD. 
While inability to concentrate is a symptom of PTSD, the DVA 
doctor omits any mention of another possible cause for theapplicant’s PTSD besides his experiences overseas. In point offact, the applicant did not seek medical attention for PTSD 
until his return from SOS, some 13 months after his deployment, 
at which time it was clear to him that he was the subject of anOffice of Special Investigations (OSI) investigation for hismisconduct. Ultimately, the Board is left to determine if the 
DVA doctor’s opinion, written years after the fact and based on 
incomplete information, is sufficiently convincing to determine 
the decision by SAFPC, which was based on a full development ofthe facts in both a court-martial and subsequent BOI, 
constitutes an error or injustice. In the end, SAFPC granted 
the applicant the general discharge he had asked for at his BOI.
He has received his benefits from the DVA, and indeed has usedhis access to the DVA care in pursuing his application to theBoard. He continues to receive medical care for his disability 
that he was so anxious to obtain from his BOI. In light ofthese facts, the applicant has simply failed to prove any 
injustice, much less one meriting correction by the Board.

A complete copy of the AFPC/JA evaluation is at Exhibit D.

APPLICANT'S REVIEW OF AIR FORCE EVALUATION:


Counsel argues the AFPC/JA evaluation mischaracterizes Counsel’s 
arguments and fails to acknowledge the fundamental nature of the 
errors found within the SAF/MRBP memorandum describing the 
rationale for terminating the applicant’s disability processing 
in favor of his administrative discharge for misconduct. The 
memorandum states, “the Board determined that the member’s 
clinical diagnosis did not impair his cognitive functioning…” 
This statement is unequivocal and conclusory; however, the 
evidence presented establishes the applicant was cognitively 
impaired as a result of his combat related PTSD/TBI. The 
applicant agrees he did not meet the legal mental responsibility 
standard required for a complete defense. In fact he has never 
claimed that he did. Instead his claim focuses on the issue of 
whether the SAFPC exercised their discretion based upon an 
accurate medical and scientific understanding of the level of 
the applicant’s cognitive impairment. If SAFPC had the benefit 
of the DVA doctor’s opinion and his attending psychiatrist’s 
full evaluation, they would not have been able to rule out the 
applicant’s cognitive impairment at the time of his misconduct. 
The advisory opinion also suggests that Counsel’s arguments 
regarding the link between the applicant’s PTSD and his 
misconduct has been inconsistent over time. However, Counsel 
points out that more understanding exists now about combat 
related PTSD and TBI than existed a the time of the applicant’s 
offenses, his court-martial, his BOI, and when SAFPC acted on 
the applicant’s discharge. Additionally, the advisory opinion 
fails to appreciate the fact the BOI members did not have the 
ability to act on the applicant’s medical disability issue, but 
focused solely on the misconduct, whether to retain the 
applicant, and if not, how to characterize his service. 
Everyone understood the issue of medical retirement versus 
administrative discharge would be later resolved at SAFPC under 
dual processing. Hence, the applicant and his counsel 
recognized the BOI was not the proper forum to argue for medical 
retirement. Finally, the advisory opinion infers the applicant 
may have been lying to the DVA doctor about how he was 
progressing at SOS, but misses the real point. The DVA doctor 
is simply challenging the statement in the SAF/MRBP memorandum 
which placed emphasis on the applicant’s attendance at SOS as 
somehow establishing that he was not cognitively impaired at the 
time. There can be no question the applicant is suffering from 
PTSD and TBI; and no question he engaged in misconduct for which 
he has taken responsibility. All he asks is that the Board 
revisit the decision to adversely characterize his service in 
lieu of medical retirement. His supporting documentation 
establishes the original decision, as reported in the SAF/MRBP 
memorandum, was based on erroneous assumptions and 
understandings. Based on the evidence, medical retirement is 
the just outcome. 

 

A complete copy of Counsel’s response is at Exhibit E. 

 

________________________________________________________________ 

 


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 error or injustice. We took notice 
of his complete submission in judging the merits of the case; 
however, we agree with the opinion and recommendation of the Air 
Force offices of primary responsibility (OPR) and adopt their 
rationale as the basis for our conclusion the applicant has not 
been the victim of an error or injustice. Counsel’s contentions 
are duly noted; however, these assertions and the documentation 
provided are not sufficient to persuade us that SAFPC’s decision 
to terminate the applicant’s disability discharge in favor of 
his administrative discharge for misconduct was erroneous. 
Therefore, absent persuasive evidence that appropriate 
directives were not followed, there was an abuse of 
discretionary authority, or the applicant was denied rights to 
which he was entitled, we find no basis to recommend granting 
the relief sought in this application. 

 

________________________________________________________________ 

 

THE BOARD DETERMINES THAT: 

 

The applicant be notified the evidence presented did not 
demonstrate the existence of material error or injustice; the 
application was denied without a personal appearance; and 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-2010-04551 in Executive Session on 25 Aug 11, under 
the provisions of AFI 36-2603: 

 

 , Panel Chair 

 , Member 

 , Member 

 

The following documentary evidence was considered: 

 

 Exhibit A. DD Form 149, dated 6 Dec 10, w/atchs. 

 Exhibit B. Applicant's Master Personnel Records. 

 Exhibit C. Letter, AFPC/DPSOS, dated 13 Jan 11. 

 Exhibit D. Letter, AFPC/JA, dated 1 Mar 11. 

 Exhibit E. Letter, AFBCMR, dated 25 Mar 11. 

 Exhibit F. Letter, Counsel, dated 22 Apr 11, w/atch. 

 

 Panel Chair