RECORD OF PROCEEDINGS
AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS

IN THE MATTER OF:	DOCKET NUMBER:  BC-2012-05459
		COUNSEL:  NONE
	XXXXXXX	HEARING DESIRED:  NO

________________________________________________________________

APPLICANT REQUESTS THAT:

His narrative reason for separation be changed. 

________________________________________________________________

APPLICANT CONTENDS THAT:

His DD Form 214, Certificate of Release or Discharge from Active 
Duty, item 28 reflects “MISCONDUCT.”  He was injured during 
Operation ENDURING FREEDOM (OEF) and was not able to return to 
his job as a vehicle operator.  He was waiting for a medical 
discharge; however, he was bribed by his commander to take the 
honorable [sic] discharge so he could be with his family.

The applicant provides no documents in support of his request.

His complete submission is at Exhibit A.

________________________________________________________________

STATEMENT OF FACTS:

On 25 Nov 1997, the applicant enlisted in the regular Air Force.

On or about 14 Dec 2001, the applicant tripped and fell while 
getting off of a bus in a deployed location.

On 28 Dec 2001, the applicant was seen at Walter Reed Medical 
Center (WRMC), Washington D.C., for his knee pain.  The medical 
officer at WRMC diagnosed him with a femoral medial condyle 
bruise, which caused inflammation and pain in his left knee.

On 22 Jul 2004, an informal Line of Duty determination was 
initiated.

On 3 Aug 2004, his commander notified him that he was 
recommending he be discharged from the Air Force under the 
provisions of AFPD 36-32, Military Retirements and Separations 
and AFI 36-3208, Administrative Separation of Airmen.  The 
specific reason for this action was a pattern of misconduct 
prejudicial to good order and discipline.  The detailed reasons 
are reflected in the Notification Memorandum at Exhibit B.

On 3 Aug 2004, the applicant acknowledged receipt of the 
discharge notification and was advised of his right to consult 
with legal counsel and submit statements in his own behalf.

On 9 Aug 04, the 366 LRS/CC, recommended finding "In Line of 
Duty."

On 10 Aug 2004, after consulting with counsel, the applicant 
offered a conditional waiver of his rights associated with an 
administrative discharge board hearing contingent upon receiving 
no less than a general (under honorable conditions) discharge.

On 25 Aug 2004, it was determined that the injury to his knee 
was “In the Line of Duty.”  

On 30 Aug 2004, the Staff Judge Advocate recommended the 
applicant’s conditional waiver be accepted and he be separated 
with a general (under honorable conditions) discharge without 
probation and rehabilitation.

On 30 Aug 2004, the discharge authority accepted the conditional 
waiver and approved the applicant’s discharge.

On 2 Sep 2004, he was discharged in the grade of Senior Airman 
(SrA, E-4) with a general (under honorable conditions) 
discharge.  The narrative reason for separation is “MISCONDUCT.”  
He served six years, nine months and eight days of total active 
service.

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AIR FORCE EVALUATION:

AFPC/DPSOR recommends denial. DPSOR states that the applicant 
did not submit any evidence or identify any errors or injustice 
in the discharge processing.  They found no evidence of an error 
or injustice in the processing of the applicant’s discharge.  
The documentation on file in the master personnel records 
supports the basis for discharge which was consistent with the 
procedural and substantive requirements of the discharge 
regulation and was within the discretion of the discharge 
authority to include the characterization of discharge.

The complete DPSOR evaluation is at Exhibit C.

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APPLICANT'S REVIEW OF THE AIR FORCE EVALUATION:

If his records are reviewed prior to his deployment to OEF, the 
Board will see that he was an exemplary airman.  He had numerous 
awards and decorations while serving his country.  Not all of 
the awards and decorations are attached as the amount is too 
voluminous.  His family moved back to Nevada during the final 
months leading up to his discharge.  On 2 Jun 2004 he was 
offered an Article 15 in lieu of waiting for the Medical 
Evaluation Board (MEB) to meet and decide on his discharge.  It 
was illegal for any commanding officer to circumvent the MEB.  
At the time of his discharge, he was eager to be reunited with 
his family and his unit was aware of this.  He was injured and 
unable to perform his duties and was viewed as someone taking up 
a position.  It was in their best interest to "push me out the 
door."  He is currently rated by the Department of Veterans 
Affairs (DVA) as "Permanently and Totally Disabled."  The 
injuries that prevent him from working are the same injuries 
that prevented him from doing his job in 2002-2004.  He implores 
the Board to review the included documentation to understand the 
type of person he was and how he was perceived after his injury.

In further support of his request, the applicant provides a time 
line of events leading up to his discharge and various other 
documents associated with his appeal.

His complete response with attachments, is at Exhibit E.

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ADDITIONAL AIR FORCE EVALUATION:

The BCMR Medical Consultant recommends denial of the applicant's 
implicit petition to supplant his administrative discharge  with 
a medical discharge.  The Medical Consultant states that the 
applicant's MEB should have been carried out and his case 
referred to a Physical Evaluation Board (PEB) for a 
determination of his fitness to serve.  Based upon the chronic 
and unrelenting nature of the his knee pain and vertigo, he 
would have been found unfit for further military service by a 
PEB and an appropriate disability rating assigned to these 
unfitting medical conditions.  The final recommended disposition 
would have been discharge with severance pay.  However, due to 
the fact that the applicant would have been concurrently the 
subject of an approved administrative  discharge and a medical 
discharge, his case would have been referred to the Secretary of 
the Air Force Personnel Council (SAFPC) for a "dual action" 
review for the determination of which basis for discharge 
[administrative versus medical] to execute.  Viewing the 
applicant's case through the lens of a BCMR, both an error and 
injustice occurred by not allowing the applicant's medical case 
to proceed with the MEB and PEB actions and to have it reviewed 
by SAFPC.  Similarly, viewing the applicant's case through the 
lens of a Discharge Review Board (DRB), depriving the 
applicant's access to the military Disability Evaluation System 
(DES) and the opportunity for a "dual-action" review of his case 
by SAFPC could also be construed as an inequity and possible 
impropriety.  However, these facts do not automatically justify 
the outcome desired by the applicant.  In this respect, finding 
no causal or mitigating relationship between the applicant's 
numerous disciplinary infractions and his medical conditions, 
SAFPC, more likely than not, given the choice, would have 
recommended execution of the approved administrative discharge.  
Nevertheless, the applicant is advised that the Board or a 
subsequent DRB review is not bound to any discussions herein, 
and that either Board may make its decision based independently 
upon the supplied evidence, to include consideration of an 
alternative remedy, e.g., change of discharge characterization 
or narrative reason for discharge to Secretarial Authority.

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

_______________________________________________________________

APPLICANT'S REVIEW OF AIR FORCE EVALUATION:

On 28 Oct 2013, a copy of the BCMR Medical Consultant’s 
evaluation was forwarded to the applicant for review and comment 
within 30 days.  As of this date, this office has received no 
response (Exhibit G).

_______________________________________________________________

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.  After a 
thorough review of the evidence of record and the applicant’s 
complete submission, we are not persuaded his narrative reason 
for separation should be changed to reflect that he was 
discharged for medical reasons.  The applicant’s contentions are 
duly noted; however, we do not find his assertions sufficiently 
persuasive to override the rationale provided by the BCMR Medical 
Consultant.  The Consultant’s review of the applicant’s service 
medical records found that the applicant’s MEB should have been 
carried out and his case referred to a PEB for a determination of 
his fitness to service.  However, he further concluded that 
discharge for misconduct would still have been the most likely 
outcome even if the case had been processed as a dual action 
case.  In view of the above and absent persuasive evidence to the 
contrary, we agree with the BCMR Medical Consultant that the 
applicant has failed to sustain his burden of having suffered 
either an error or an injustice.  Therefore, we find no basis to 
recommend granting the relief sought.

________________________________________________________________

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 5 Dec 2013, under the provisions of AFI 
36-2603:

, Panel Chair
, Member
, Member

The following documentary evidence was considered in AFBCMR BC-
2012-05459:

Exhibit A.  DD Form 149, dated 14 Nov 2012.
Exhibit B.  Applicant's Available Military Records.
Exhibit C.  Letter, AFPC/DPSOR, dated 29 Jan 2013.
Exhibit D.  Letter, SAF/MRBR, dated 3 Feb 2013.
Exhibit E.  Letter, Applicant, dated 28 Feb 2013, w/atchs.
Exhibit F.  Letter, BCMR Medical Consultant, dated 28 Oct      
            2013.
Exhibit G.  Letter, SAF/MRBC, dated 28 Oct 2013.




                                   
                                   Panel Chair
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