RECORD OF PROCEEDINGS
AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS

IN THE MATTER OF:	DOCKET NUMBER: BC-2013-03207
			COUNSEL: 
			HEARING DESIRED: YES

________________________________________________________________

APPLICANT REQUESTS THAT:

1.  He be returned to active duty status so he can be dual-
processed with a Medical Evaluation Board (MEB) or Physical 
Evaluation Board (PEB).

2.  In the alternative his general (under honorable conditions) 
discharge be upgraded to honorable.

________________________________________________________________

APPLICANT CONTENDS THAT:

His medical condition at the time of his discharge required dual 
processing.  His chain of command ignored his medical condition 
and the lack of evidence as to the alleged misconduct, and 
discharged him in a way to minimize his due process.

In support of his request, the applicant provides a counsel’s 
brief, copies of his Record of Nonjudicial Punishment 
Proceedings, Discharge Package, MEB Recommendation, Medical 
Records, DD Form 214, Certificate of Release or Discharge from 
Active Duty; Enlisted Performance Reports, medical records, and 
various other documents associated with his request.

His complete submission, with attachments, is at Exhibit A.

________________________________________________________________

STATEMENT OF FACTS:

On 22 Apr 2008, the applicant enlisted in the Regular Air Force.

On 22 Mar 2013, 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 Airman.  The 
specific reasons for his action are:

	On 5 May 2009, he received an Article 15 for violating a 
lawful order on 1 Feb 2009.  He was reduced to the grade of 
airman and restricted to the limits of the base for 60 days and 
an Unfavorable Information File (UIF) was created.

	On 24 Jan 2013, he received an Article 15 for attempting to 
wrongfully use 100 milligrams of testosterone between on or 
about 1 Dec 2012 and on or about 31 Dec 2012, a Schedule III 
controlled substance.  In addition, he failed to refrain from 
attempting to possess the prescription drug Tamoxifen without 
obtaining a valid prescription, with the intent to use the drug 
in a manner that would alter his bodily function.  For these 
violations, he was reduced to the grade of airman first class 
and forfeited $1,007.00 pay, suspended through 29 Jul 2013, and 
a UIF was created.

On 22 Mar 2013, the applicant acknowledged receipt of the 
discharge notification and on 27 Mar 2013, he provided a 
statement in his behalf.

On 5 Apr 2013, the Staff Judge Advocate (SJA) found the 
discharge legally sufficient.

On 5 Apr 2013, the discharge authority directed the applicant be 
discharged with a general (under honorable conditions) discharge 
without the opportunity for probation and rehabilitation.

On 18 Apr 2013, the applicant was discharged with service 
characterized as general (under honorable conditions).  His 
narrative reason for separation is Misconduct (Minor 
Infractions).  He served on active duty for 4 years, 11 months 
and 27 days.

________________________________________________________________

AIR FORCE EVALUATION:

AFPC/DPSOR recommends denial of the applicant’s request to 
upgrade his discharge to honorable.  DPSOR states that based on 
the documentation on file in the master personnel records, the 
discharge to include his character of service was consistent 
with the procedural and substantive requirements of the 
discharge instruction and was within the discretion of the 
discharge authority.  The applicant did not provide any evidence 
of an error or injustice that occurred in the discharge 
processing.  According to AFI 36-3208, Paragraph 1.18.2, a 
general discharge is appropriate when "significant negative 
aspects of the airman's conduct or performance of duty outweighs 
positive aspects of the airman's military record."  His 
misconduct in this case clearly outweighs the positive aspects 
of his service.  The commander stated before recommending the 
discharge, every effort was made by the applicant’s supervision 
to rehabilitate him.  He received numerous verbal and written 
counseling sessions and two Article 15’s for his misconduct in 
less than five years of active service.

The complete DPSOR evaluation is at Exhibit C.
AFPC/DPFD recommends denial of his request to be returned to 
active duty status so he can be dual-processed with a MEB or 
PEB.  DPFD states that the preponderance of evidence reflects 
that the Physical Disability Division never received a referral 
to the PEB.  Therefore, they could not have processed a dual 
action case or given the applicant a medical 
retirement/separation.

The complete DPFD evaluation is at Exhibit D.

The BCMR Medical Consultant recommends denial of his request to 
be returned to active duty status so he can be dual-processed 
with a MEB or PEB.  The Medical Consultant states that the Board 
is empowered to grant the applicant's petition outright, by 
directing his return to active duty for completion of a MEB, 
followed by a referral to a PEB for a determination of his 
fitness to serve.  However, since he would have been 
concurrently the subject of an approved administrative 
discharge, his case would have been referred to the Secretary of 
the Air Force Personnel Council (SAFPC) for a "dual-action" 
review of both the administrative and medical bases for 
discharge, and to determine which was the appropriate reason for 
discharge and the appropriate characterization of service.  In 
conducting such reviews, the SAFPC considers the relative 
gravity of the administrative infractions and the seriousness of 
the medical condition, as well as a search for any causal or 
mitigating relationship between the administrative infractions 
and the medical condition, in making its final determination.  
Since there is no causal or mitigating relationship between the 
applicant's shoulder and knee ailment and his administrative 
infractions, had the applicant's MEB and PEB occurred, it is as 
likely as not the SAFPC would have set aside the medical 
discharge and executed the previously approved administrative 
discharge.

The Board's awareness of the uses of the drug Tamoxifen may be 
of some value in deliberation.  First, the drug is not a 
narcotic and is principally used as adjuvant therapy for 
estrogen receptor-sensitive carcinoma of the breast; acting by 
blocking the estrogen receptors in the tumor, thereby reducing 
tumor growth.  It, however, has also been utilized by males 
presenting with breast enlargement, or gynecomastia, and for 
blocking the effects of estrogen excess in the athlete.  The 
applicant also reportedly had possession of or had attempted to 
possess the hormone testosterone, a form of anabolic steroid 
used to promote muscle building and enhance performance; albeit 
also naturally occurring in the human.  Both Tamoxifen and 
testosterone appear on the prohibited list published by the 
World Anti-Doping Agency for competitive athletic events.

Viewing the applicant's case through the lens of a Discharge 
Review Board (DRB), the applicant could argue for an upgrade of 
his discharge characterization to honorable, based upon a 
possible inequity or impropriety, e.g., the harshness of 
punishment, nature and timing of his offenses.  Nevertheless, 
after considering the totality of the paper evidence in the case 
file, the Medical Consultant finds the evidence insufficient to 
warrant the primary desired change or the alternative desired 
change of the record.  However, the optimal venue for this 
review would be a personal appearance before the DRB; a non-
confrontational Board comprising medical and legal experts, 
where legal counsel is also made available to him, where 
witnesses or witness statements may be presented on his behalf, 
and his testimony (sworn or unsworn] may be taken into account 
in the exposure of a possible inequity or impropriety in his 
discharge or the character of his service.

The complete Medical Consultant’s evaluation is at Exhibit E.

________________________________________________________________

APPLICANT'S REVIEW OF ADDITIONAL AIR FORCE EVALUATION:

The BCMR Medical evaluation strays far from medical topics, 
including a discussion of how SAFPC would rule in this case, 
should it be sent back for dual processing.  The Medical 
Consultant goes on to weigh the medical evidence against the 
evidence of misconduct, again opining on matters reserved for 
the SAFPC.  Although the Medical Consultant provides a retelling 
of the applicant’s lengthy medical history, very little of that 
history is discussed in the “DISCUSSION” portion of the opinion.  
When one looks closely at this medical history, the Medical 
Consultant does not discuss the fact that the applicant 
permanently injured a knee and shoulder in the service of his 
country.  The Medical Consultant also ignores the medical 
opinion of the treating physician who recommended a MEB in this 
case.  However, the process was short-circuited in a concerted 
effort to discharge the applicant from the Air Force as quickly 
as possible, in direct violation of his due process rights.  The 
advisory opinions appear heavy-handed and biased.  They do not 
include the positive aspects of the applicant’s service, but 
attempt to perpetuate the injustice of this case.  There are 
only two ways to right the wrong that has been done – either 
return him to duty for dual processing, or grant him an 
honorable discharge.

Counsel’s complete response is at 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.  We took notice 
of the applicant's complete submission in judging the merits of 
the case; however, we agree with the opinions and 
recommendations of the Air Force Office of Primary 
Responsibility (OPR) and the BCMR Medical Consultant and adopt 
their rationale as the basis for our conclusion the applicant 
has not been the victim of an error or injustice.  While 
counsel’s response to the BCMR Medical evaluation and Air Force 
OPR is noted, he has not provided substantial evidence which, in 
our opinion, successfully refutes the assessment of his case by 
the aforementioned evaluations.  Therefore, in the absence of 
evidence to the contrary, we find no basis to recommend granting 
the relief sought in this application.

4.  The applicant's case is adequately documented and it has not 
been shown that a personal appearance with or without counsel 
will materially add to our understanding of the issue(s) 
involved.  Therefore, the request for a hearing is not favorably 
considered.

________________________________________________________________

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 24 Apr 2014, under the provisions of AFI 
36-2603:

      , Chair
      , Member
      , Member

The following documentary evidence was considered in AFBCMR BC-
2013-03207:

 Exhibit A.  DD Form 149, dated 1 Jul 2013, w/atchs.
 Exhibit B.  Applicant's Master Personnel Records.
 Exhibit C.  Letter, AFPC/DPSOR, dated 30 Aug 2013.
 Exhibit D.  Letter, AFPC/DPFD, dated 23 Sep 2013
 Exhibit E.  Letter, BCMR Medical Consultant, dated 15 Nov 2013.
 Exhibit F.  Letter, SAF/MRBC, dated 15 Nov 2013.
 Exhibit G.  Letter, Counsel, dated 15 Dec 2013.




								
								Chair