RECORD OF PROCEEDINGS
AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS


IN THE MATTER OF:	DOCKET NUMBER:  BC-2012-05656

		COUNSEL:  NONE

		HEARING DESIRED:  NO

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APPLICANT REQUESTS THAT:

1.  His general (under honorable conditions) discharge be upgraded to honorable.  

2.  His narrative reason for separation of “misconduct” be changed to “medical.”  

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APPLICANT CONTENDS THAT:

1.  He was harassed into requesting a separation from a job he loved.  After bargaining and striking a deal with his commander, he was promised an honorable discharge.  His commander did not provide everything promised and he would now like to move forward in his life by helping others who have been displaced by society.  

2.  He never received proper care for a severe ankle injury he sustained in December 1993 during technical training school.  His injury was found service-connected in July 2011 and he is currently rated at 20 percent disabled by the Department of Veterans Affairs (DVA).  

3.  He is not being properly compensated for his tinnitus, post-traumatic stress disorder, and foot pain.  

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

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STATEMENT OF FACTS:

The applicant’s military personnel records indicate he enlisted in the Regular Air Force on 8 October 1993.

On 22 July 1995, the applicant was detained and charged with driving under the influence and his on-base driving privileges were suspended for one year.  

On 1 August 1995, the applicant was offered nonjudicial punishment (NJP) under Article 15, Uniform Code of Military Justice (UCMJ).  The reason for the action was based on the following:  one specification for dereliction in the performance of his duties by failing to refrain from consuming alcohol under the age of 21, in violation of Article 92, UCMJ; one specification of operating a vehicle while his blood alcohol concentration was .10 grams or more, in violation of Article 111, UCMJ; one specification of unlawfully carrying a concealed weapon; and one specification of possessing an open container of an alcoholic beverage while driving, in violation of Article 134, UCMJ.  

On 4 August 1995, the applicant consulted counsel, waived his right to trial by court-martial and accepted the Article 15 proceedings.  He submitted a statement on his behalf and requested a personal appearance before the commander.  

On 4 August 1995, the commander decided the applicant had committed the alleged offenses and imposed punishment consisting of reduction to the grade of Airman (E-2), with a new date of rank of 4 August 1995.  

On 10 August 1995, the applicant decided not to appeal the commander’s decision.  On 21 August 1995, the Staff Judge Advocate (SJA) reviewed the case and found it legally sufficient.  

On 4 August 1995, the applicant was offered NJP under Article 15, UCMJ.  He was charged with one specification of dereliction in the performance of his duties by consuming alcohol while under the drinking age of 21, in violation of Article 92 of the UCMJ and one specification of making a false official statement by saying he had not been drinking, in violation of Article 107 of the UCMJ.  

On 30 August 1995, the applicant consulted counsel, waived his right to trial by court-martial and accepted the Article 15 proceedings.  He elected to submit a statement on his behalf.  

On 30 August 1995, the commander decided the applicant had committed the alleged offenses and imposed punishment consisting of reduction to the grade of Airman Basic (E-1), with a new date of rank of 30 August 1995.  

On 31 August 1995, the applicant was notified by his commander of his intent to recommend his discharge from the Air Force for misconduct.  The specific reasons for the action are as follows:

	a.  On 20 June 1994, the applicant was late for duty, for which he received a Letter of Counseling (LOC).  

	b.  On 14 February 1995, the applicant used a military telephone to make personal calls totaling $58.00, for which he received a Letter of Reprimand (LOR).

	c.  On 28 June 1995, the applicant failed to report for duty, for which he received a Letter of LOC.  

	d.  On 29 July 1995, the applicant was driving under the influence of alcohol in violation of an open container law, drinking under age, and in possession of a concealed weapon, for which he received an Article 15, UCMJ.  

	e.  On 4 August 1995, the applicant was drinking under age, for which he received an Article 15, UCMJ.  

On 31 August 1995, the applicant acknowledged receipt of the discharge action, consulted legal counsel, and elected to submit a statement on his behalf.  

On 5 September 1995, a standard form 93, Report of Medical History, indicated the applicant had recurring left ankle sprains since 1993, secondary to walking and twisting his ankle.  He suffered from recurrent pain and deformity noted by physical therapist secondary to repeated sprains and regrowth.  

On 5 September 1995, the applicant was subjected to a physical exam and found to be world-wide qualified.

On 6 September 1995, the applicant decided not to appeal the commander’s decision to punish him under Article 15, UCMJ.  On 7 September 1995, the Staff Judge Advocate (SJA) reviewed the case and found it legally sufficient.  

On 12 September 1995, the applicant’s discharge was found legally sufficient and the discharge authority directed the applicant be furnished a general (under honorable conditions) discharge, without probation and rehabilitation.  

On 26 September 1995, the applicant was furnished a general (under honorable conditions) discharge and was credited with 1 year, 11 months, and 19 days of total active service.

On 14 August 2013, a request for post-service information was forwarded to applicant for comment within 30 days.  As of this date, no response has been received by this office (Exhibit C).  

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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; 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 find no evidence of an error or injustice that occurred in the discharge process.  Based on the available evidence of record, it appears the applicant’s general (under honorable conditions) discharge for misconduct was consistent with the substantive requirements of the discharge air force instruction (AFI) and within the commander’s discretionary authority.  He has provided no evidence which would lead us to believe the characterization of his service was improper or contrary to the provisions of the governing directive.  In the interest of justice, we considered upgrading the discharge based on clemency; however, we do not find the limited documentation related to the applicant’s activities since leaving the service sufficient to recommend granting the relief sought on that basis.  As for the applicant’s assertion that he should have been discharged for physical disability due to his ankle injury, we are not convinced that his narrative reason for separation should be changed.  In this respect, while we note the applicant’s record indicates that he had some issues related to ankle sprains, we do not find the evidence he has presented sufficient to conclude that said injury would have caused the applicant to be found unfit for duty and, thus, would have formed the basis for his entitlement to disability benefits.  While the applicant argues that because the Department of Veterans Affairs (DVA) has granted him service connection for his ankle condition his records should be corrected to indicate he was discharged due to physical disability, we note the DVA, acting under Title 38, United States Code (USC), has authority to grant service connection and provide disability compensation for any condition incurred or aggravated in the line of duty, without regard to whether or not the condition was unfitting at the time of the applicant’s discharge and caused the early termination of his military career.  On the other hand, the military disability system, operating under Title 10, USC, is only designed to maintain a fit and vital force and can only provide benefits for those conditions that caused a member’s career to be terminated prematurely.  However, in this case, the evidence of record clearly indicates the applicant’s career was terminated due to his own misconduct.  Therefore, in view of the foregoing, and in the absence of evidence to the contrary, we conclude that no basis exists to upgrade the applicant’s general (under honorable conditions) discharge.

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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.

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The following members of the Board considered AFBCMR Docket Number BC-2012-05656 in Executive Session on 19 September 2013, under the provisions of AFI 36-2603:

	Chair
	Member
	Member

The following documentary evidence was considered:

     Exhibit A.  DD Form 149, undated, w/atchs.
     Exhibit B.  Applicant's Master Personnel Records.
     Exhibit C.  Letter, AFBCMR, dated 14 August 2013.




                                   
                                   Panel Chair