RECORD OF PROCEEDINGS
AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS

IN THE MATTER OF:	DOCKET NUMBER: BC-2013-01439
	XXXXXXX	COUNSEL: LISA MARIE WINDSOR, ESQ.
		HEARING DESIRED: YES

________________________________________________________________

APPLICANT REQUESTS THAT:

1.  His Under Other than Honorable Conditions (UOTHC) discharge 
be upgraded to honorable. 

2.  The Separation Authority, Narrative Reason for Separation, 
and Separation Code be changed to reflect a permanent medical 
retirement.

________________________________________________________________

APPLICANT CONTENDS THAT:

As a supply sergeant whose professional life is defined in terms 
of fiscal responsibility and accountability it is unrealistic to 
think he would suddenly write a string of bad checks, absent 
severe financial hardship, gambling addiction or drug abuse; 
none of which were present in this case.  Had anyone at the time 
been able to appreciate his misconduct as a symptom of mental 
illness, he would have been referred to mental health to receive 
the help that he needed.  As it was, the Air Force took the most 
expedient and cost effective path to removing him, which was to 
approve his “Request for Discharge in Lieu of Court-Martial.”  
This is a common response in cases of misconduct committed while 
a person is struggling with mental illness; to elect separation 
instead of a Medical Evaluation Board (MEB).  It is safe to say, 
that this brief period of misconduct was not indicative of his 
character or an accurate characterization of his military 
service.  For 13 years he served as a model airman and had no 
disciplinary actions on his record, unfortunately, his high 
level of performance also masked underlying emotional issues.

He was command-directed to mental health in 1979 and was sent 
again in 1984 for anger management counseling.  In 1992, he 
began to have extreme difficulty in managing his personal 
finances and engaged in excessive spending.  He wrote bad checks 
to several businesses, and while the checks were all paid off, 
the Air Force elected to prefer court-martial charges.  
Subsequent civilian medical records describe his mood during 
this period as feeling "like Superman" and wanting everything to 
be perfect.  He worked until late at night and into the next day 
often without sleep and began to engage in reckless behavior. 

After his discharge, he was the caregiver for his brother, and 
became his mother's caregiver when his father passed away in 
2001.  During this time, his mental health deteriorated and in 
2004, he was finally diagnosed with Bi-polar Disorder II.  
Shortly after the death of his mother in 2005, he suffered a 
heart attack and has been diagnosed with a host of other medical 
conditions.  He has been under the care of a psychiatrist 
continuously since 2004.  His symptoms were briefly exacerbated 
in Sep 2009 when his wife suddenly died.  He continues with 
counseling, medication and is attempting to cope with daily 
life.  Had the applicant’s situation occurred today, it is 
likely that his attorney and supervisors would have been more 
attuned to the possibility of mental illness as an underlying 
cause of his misconduct.

Since so many years have passed since his discharge, it has been 
difficult to obtain complete records.  A request of his military 
records to the National Personnel Records Center (NPRC) yielded 
minimal documentation.  Requests for records were also made to 
the Air Force Personnel Center (AFPC).  To date, there has been 
no response.  Discharge documents are not contained in his 
military records and this stands to rebut the presumption of 
administrative regularity.  The Board may decide to take action 
in the interests of justice and equity to address an error or 
injustice.  The actions taken to discharge him with an UOTHC 
discharge were unjustly severe given his mitigating 
circumstances and 13 years of exceptional service.  His records 
as they stand today are insufficient to justify the actions 
taken and even if the discharge had been warranted at the time, 
it has served its intended purpose.  The UOTHC discharge is not 
indicative either of his character or of his military service 
and represents only a brief period of time in an otherwise 
outstanding military career.

In support of his request, the applicant provides a personal 
statement, copies of his DD Form 214, Certificate of Release or 
Discharge from Active Duty, EPRs, medical records, and various 
other documents associated with his request.

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

________________________________________________________________

STATEMENT OF FACTS:

On 26 Jan 1993, the applicant was separated from the Air Force 
under the provisions of AFI 36-3208, Administrative Separation 
of Airmen.  His narrative reason for separation is “Request for 
Discharge in Lieu of Trial by Court-Martial.”  He had 13 years, 
6 months and 8 days of active service.  



The remaining relevant facts pertaining to this application are 
contained in the letter prepared by the office of the BCMR 
Medical Consultant at Exhibit E.

________________________________________________________________

AIR FORCE EVALUATION:

AFPC/DPSOR recommends denial of the applicant’s request that his 
UOTHC discharge be upgraded to honorable.  DPSOR states that 
there is insufficient evidence contained in the applicant's 
military record to confirm the circumstances and facts 
surrounding his discharge.  However, absent this documentation, 
there is a presumption of regularity in which the applicant was 
afforded due process and the discharge was consistent with the 
procedural and substantive requirements of the discharge 
regulation.  The discharge authority approved the request for 
“Discharge in Lieu of Trial by Court-Martial,” and directed that 
he be discharged with an UOTHC discharge.

The complete DPSOR evaluation is at Exhibit C.

The BCMR Medical Consultant recommends denial of the applicant's 
request for a permanent medical retirement.  The Medical 
Consultant alternatively recommends changing the reason for 
discharge to Secretarial Authority with an upgrade of discharge 
characterization to “Honorable” or alternatively offer upgrade 
to “General.”

The Medical Consultant states that there is no factual 
documentation to support a medical condition that would warrant 
a medical discharge especially since the diagnosis of a Bi-polar 
Disorder was made 11 years after separation from the service.  
The case confronting the Board and the Medical Consultant is to 
determine if there has been an error or injustice in the 
applicant’s discharge.  If the case was presented before a 
Discharge Review Board (DRB), the task would be to determine if 
there was an inequity or impropriety in the applicant’s 
discharge.  The applicant’s medical records identify areas of 
concern; three months after entry into the military the 
applicant appeared to be undergoing some psychological issues. 
This is reinforced five years later with his visits for 
stress/anger management.  The applicant’s performance reports 
provide possible insight with his inconsistent work profile; 
possibly not fully within his span of control.  Although 
“getting into trouble” was a culminating factor, the record begs 
the question of an underlying or co-morbid personality disorder 
that existed prior to service.  All the above-mentioned might 
help to explain his decision to elect an UOTHC discharge 
“Request for Discharge in Lieu of Trial by Court-Martial.”  
Therefore, viewing the case through the lens of the BCMR, there 
is some suggestion of error [unusual harsh punishment] and an 
injustice [resultant lifelong UOTHC discharge], albeit, “Request 
for Discharge in lieu of Trial by Court-Martial,” as opposed to 
a mental disorder.  The Medical Consultant, alone, is at a 
disadvantage to offer a definitive diagnosis, nevertheless, 
while the applicant’s eligibility for an alternative review 
before a DRB has expired, there is sufficient evidence to 
recommend changing the reason for discharge to Secretarial 
Authority with an upgrade of discharge characterization to 
“Honorable” or alternatively offer upgrade to “General.”  The 
Medical Consultant’s same arguments would have been put forth to 
a DRB.  Unfortunately, the applicant has not met the burden of 
proof of error or injustice that warrants a permanent medical 
retirement.

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

________________________________________________________________

APPLICANT'S REVIEW OF ADDITIONAL AIR FORCE EVALUATION:

The advisory opinions rely heavily on the fact of the absence of 
military and medical records in this case to recommend denial of 
the applicant’s requested relief, even though it is the 
responsibility and the requirement of the government to maintain 
a system of records on every service member.  At the time of the 
applicant’s discharge the NPRC and the AFPC maintained 
electronic records.  There is absolutely no excuse for the 
government's failure to follow the law by neglecting to file the 
required documents in the applicant’s military personnel record.  
To say that this complete failure of recordkeeping on the part 
of the government does not overcome the presumption of 
administrative regularity is to hold the enlisted service member 
responsible for maintaining his or her own system of records, 
and ensuring on his or her own that the government complies with 
the law.  This is unrealistic given the applicant’s mental 
condition.

His mental condition at the time of his discharge should have 
been considered as a possible direct cause or mitigating factor 
in his misconduct, and the outcome of an UOTHC discharge is 
unreasonably harsh under the circumstances.  The severity of his 
mental illness is well-documented in his medical records, albeit 
not formally diagnosed until many years after his discharge.  
Per the Diagnostic and Statistical Manual of Mental Disorders 
(DSM), the applicant reports while he was in the Air Force 
periods of irritability and bizarre behavior followed by long 
periods of functionality are consistent with a diagnosis of Bi-
polar Disorder.  During the hypomanic phase, a period of mood 
disturbance and increased energy and activity, it is common for 
individuals to experience "[e]excessive involvement in 
activities that have a high potential for painful consequences 
(e.g., engaging in unrestrained buying sprees, sexual 
indiscretions, or foolish business investments."  This is 
consistent with his statement that he wrote checks irrationally 
for things he did not need and engaged in other high risk 
behavior.  Bi-polar Disorder may begin in late adolescence, but 
the average age of onset is the mid-20s, which would support the 
contention that he was suffering from Bi-polar Disorder at the 
time that he committed the misconduct.  He understands that the 
lack of records in his case presents a challenge.  However, he 
asks that the Board not penalize him for the absence of records 
and arrive at the logical conclusion based on the evidence at 
hand.  The evidence is sufficient to conclude that he was 
suffering from a mental disease or defect at the time of his 
discharge.  In any disciplinary action involving a service 
member with a diagnosed mental disease or defect, the government 
must first determine whether the misconduct was the direct 
result of the mental illness; if not sufficient to negate guilt, 
then whether the mental disease or defect was a mitigating 
factor in the offense.

The applicant contends that his uncharacteristic behavior in 
writing bad checks was the direct result of his then undiagnosed 
Bi-polar Disorder, and he should be granted a permanent medical 
retirement from the service.  At a minimum, however, he requests 
that the Board follow the recommendation of the Medical 
Consultant and take his mental condition into consideration as a 
mitigating factor in reducing the severity of the offense, and 
grant him an honorable discharge.  

In further support of the applicant’s request, counsel provides 
a copy of DSM-V.

Counsel’s complete response, with attachments, 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 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 an error or injustice to warrant 
changing his discharge to a medical retirement.  We took notice 
of the applicant's complete submission in judging the merits of 
the case and do not find that it supports a determination that he 
should be medically retired.  While the applicant’s response to 
the BCMR Medical Advisor is noted, he has provided no evidence 
which, in our opinion, successfully refutes the assessment of his 
case by the BCMR Medical Consultant.  Therefore, we agree with 
the recommendation of the BCMR Medical Advisor and adopt his 
opinion as our findings in this portion of his case.  In view of 
the above and absence evidence to the contrary we find no basis 
to favorably consider the applicant’s request.

4.  Notwithstanding the above sufficient relevant evidence has 
been presented to demonstrate the existence of error or 
injustice warranting a degree of relief.  In coming to our 
determination we reviewed the complete evidence of record, in 
particular, the advisory prepared by the BCMR Medical Advisor 
who recommends changing the applicant’s records to show that he 
was honorably discharge with a narrative reason for separation 
of Secretarial Authority.  Accordingly, we agree with the 
recommendation of the BCMR Medical Advisor and adopt the 
rationale expressed as the basis for our decision that the 
applicant has been the victim of either an error or an 
injustice.  As such, we recommend the applicant’s records be 
corrected to reflect that his discharge was upgraded to 
honorable and his narrative reason for his discharge was changed 
to “Authority of the Secretary to Direct Discharge” with the 
corresponding separation) code of “KFF.”  Therefore, in the 
interest of justice, we recommend his records be corrected to 
the extent indicated below. 

5.  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 RECOMMENDS THAT:

The pertinent military records of the Department of the Air 
Force relating to APPLICANT, be corrected to show that at the 
time of his discharge on 26 Jan 1993, he was honorably 
discharged under the provisions of AFR 39-10, paragraph 1.2 
(Authority of the Secretary to Direct Discharge), with a 
separation code of KFF and furnished an Honorable Discharge 
Certificate.
________________________________________________________________



The following members of the Board considered this application 
in Executive Session on 9 Jan 2014, under the provisions of AFI 
36-2603:

, Panel Chair
, Member
, Member

All members voted to correct the record as recommended.  The 
following documentary evidence was considered in AFBCMR BC-2013-
01439:

 Exhibit A.  DD Form 149, dated 28 Jan 2013, w/atchs.
 Exhibit B.  Applicant's Master Personnel Records.
 Exhibit C.  Letter, AFPC/DPSOR, dated 14 Jun 2013.
 Exhibit D.  Letter, SAF/MRBR, dated 24 Jun 2013.
 Exhibit E.  Letter, BCMR Medical Consultant, dated 16 Jun 2013.
 Exhibit F.  Letter, SAF/MRBC, dated 18 Jun 2013.
 Exhibit G.  Letter, Counsel, dated 12 Jul 2013, w/atchs.




								
								Panel Chair

FOR OFFICIAL USE ONLY – PRIVACY ACT OF 1974



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FOR OFFICIAL USE ONLY – PRIVACY ACT OF 1974