SECOND ADDENDUM TO RECORD OF PROCEEDINGS

IN THE MATTER OF:	DOCKET NUMBER:  BC-1990-02737-3

	COUNSEL:  NONE

	HEARING REQUESTED:  NO

APPLICANT’S REQUEST

The Board reconsider his request for an upgrade of his Dishonorable Discharge.

RESUME OF THE CASE

The applicant is a former Air Force airman basic (E-1).

According to the Certification of Military Service, provided by the applicant, he served honorably in the Air Force from 16 January 1976 to 13 February 1986.  

According to the medical summary dated 6 September 1976, provided by the applicant, he incurred multiple contusions and abrasions with CNS concussion.

According to the AF Form 2731, Notification of Drug or Alcohol Abuse, dated 18 February 1987, provided by the applicant, he self-identified for alcohol and was recommended for entry into the Drug or Alcohol Rehabilitation Program.

On 11 July 1988, the convening authority published General Court-Martial Order No. 361.  The Order stated the applicant was found guilty of three charges, two specifications of wrongful use of marijuana, one specification of wrongful possession of marijuana, two specifications of wrongful distribution of marijuana (Article 112a) and three specifications of obstruction of justice (Article 134).  The applicant was sentenced to confinement for two years, reduction to the grade of airman basic, and discharged from the service with a dishonorable discharge.

On 30 June 1989, the applicant received a dishonorable discharge.  He was credited with 12 years, 4 months and 18 days of active service.

On 16 October 2008, the applicant requested reconsideration for an upgrade of his dishonorable discharge.  On 4 February 2010, the Board considered and denied the applicant’s reconsideration request, finding that the applicant had provided insufficient evidence of an error or injustice to justify relief. 

According to the Addendum Record of Proceedings, dated 22 February 2010, the applicant had filed similar appeals which were considered and denied by the Board on 31 July 1991 and 15 April 1997.  

On 19 November 2019, the applicant requested reconsideration of his request to upgrade his dishonorable discharge.  He contends his behavior was the direct result of self-medicating following the multiple traumatic and head injuries he experienced while in service. 

In support of his reconsideration request, the applicant provided documentation from his medical and military personnel records.  The applicant’s complete submission is at Exhibit O.

For an accounting of the applicant’s original request and the rationale of the earlier decision, see the AFBCMR Letter and Addendum Record of Proceedings at Exhibit P.

APPLICABLE AUTHORITY

This Board is without authority to reverse, set aside, or otherwise expunge a court-martial conviction.  Rather, in accordance with Title 10, United States Code, Section 1552(f), actions by this Board are limited to corrections reflecting actions taken by the reviewing officials and action on the sentence of the court-martial for the purpose of clemency.

On 3 September 2014, the Secretary of Defense issued a memorandum providing guidance to the Military Department Boards for Correction of Military/Naval Records as they carefully consider each petition regarding discharge upgrade requests by veterans claiming PTSD.  In addition, time limits to reconsider decisions will be liberally waived for applications covered under this guidance.  

On 25 August 2017, the Under Secretary of Defense for Personnel and Readiness (USD P&R) issued clarifying guidance to Discharge Review Boards and Boards for Correction of Military/Naval Records considering requests by veterans for modification of their discharges due in whole or in part to mental health conditions [PTSD, Traumatic Brain Injury (TBI), sexual assault, or sexual harassment].  Liberal consideration will be given to veterans petitioning for discharge relief when the application for relief is based in whole or in part on the aforementioned conditions.

Currently, service members diagnosed with mental health conditions receive heightened screening to ensure the casual relationship of possible symptoms and discharge basis is fully considered, and characterization of service is appropriate.  Veterans discharged under prior procedures, or before verifiable diagnosis, may not have suffered an error because the separation authority was unaware of their condition or experience at the time of discharge.  However, when compared to similarly situated individuals under current standards, they may be the victim of injustice because commanders fully informed of such conditions and casual relationships today may opt for a less prejudicial discharge to ensure the veteran retains certain benefits, such as medical care.

Liberal consideration does not mandate an upgrade.  Relief may be appropriate, however, for minor misconduct commonly associated with the aforementioned mental health conditions and some significant misconduct sufficiently justified or outweighed by the facts and circumstances.

On 25 July 2018, the USD P&R issued further guidance with the intent to set clear standards.  Copies of the Board guidance memoranda are at Exhibit Q.

AIR FORCE EVALUATION

The AFBCMR Psychiatric Advisor recommends granting the application based on liberal consideration policy.  On 15 September 2009, the applicant submitted a statement noting his mental health issues while in service and treatment at the Department of Veterans Affairs (DVA) as a contributing factor for his misconduct.  The applicant’s current request is very similar in nature, however, warrants reconsideration in the context of the Liberal Consideration policy.  Despite the lack of service treatment records and military progress reports, the applicant submitted documents supporting his claims of concussion/TBI, traumatic event and “stress problems” during his military service.  Furthermore, the applicant has been diagnosed and treated for PTSD by DVA.  It is unknown, if the reported issues were addressed by mental health providers in 1987, however, it is possible that applicant self-medicated to feel better.  

The complete advisory opinion is at Exhibit R.

APPLICANT’S REVIEW OF AIR FORCE EVALUATION

The Board sent a copy of the advisory opinion to the applicant on 29 July 2020 for comment (Exhibit S).  In his response, the applicant apologizes for his behavior.  He let down his country, the Air Force, his superiors, peers and family.  The Psychiatric Advisor was very thorough with the information; however, he would like to add some additional information.  It has been 31 years since his discharge and he has not had any meaningful employment since his discharge due to his medical conditions.  The Psychiatric Advisor spoke of one incident of TBI, however, his medical records document three, one of which he had amnesia.  

He was assigned to Lowry AFB, which was a training base.  One of his primary duties was the processing of disciplinary actions.  He believes at least 20 people were court-martialed and most he believes were made an example of for the people in training.  During his 13 plus years in the Air Force he only processed one court-martial action, his.  

During his career, he received 15 performance reports, was named the outstanding performer during Pacific Air Force Management Effectiveness Inspection.  He was singled out while attending the NonCommissioned Officer Leadership School as class leader.  

He has been clean and sober since January 2007.  He attends Alcohol Anonymous and Narcotics Anonymous on a regular basis and has been a sponsor at least three times.  He is submitting his requests in accordance with the Hagel, Kurta, and Carson and Wilkes memorandums.  

It has been 32 years since his discharge and has lived with this dishonor.  He is in bad health and would like to live out the rest of his life without disgrace. 

The applicant’s complete response is at Exhibit T.

FINDINGS AND CONCLUSION

After reviewing all Exhibits, the Board remains unconvinced the evidence presented demonstrates an error or injustice.  While the Board notes the comments of AFBCMR Psychiatric Advisor in favor of granting relief, the Board believes a preponderance of the evidence fails to substantiate the applicant’s contentions.  There is no evidence the applicant’s claims of self-medicating was the cause of his misconduct.  There is no evidence the applicant was diagnosed with a mental health condition that interfered with his service or hindered him from distinguishing right from wrong.  Furthermore, the applicant’s misconduct included charges of distribution of marijuana and obstruction, which has no correlation to his mental health.  Additionally, in the interest of justice, the Board considered upgrading the discharge based on clemency; however, given the evidence presented, the Board finds no basis to do so.  Therefore, the Board recommends against correcting the applicant’s records.

RECOMMENDATION

The Board recommends informing the applicant the evidence did not demonstrate material error or injustice, and the Board will reconsider the application only upon receipt of relevant evidence not already presented.

CERTIFICATION

The following quorum of the Board, as defined in Air Force Instruction (AFI) 36-2603, Air Force Board for Correction of Military Records (AFBCMR), paragraph 1.5, considered Docket Number BC-1990-02737-3 in Executive Session on 14 October 2020:

, Panel Chair 
, Panel Member
, Panel Member

All members voted against correcting the record.  The panel considered the following:

Exhibit O:	Application, DD Form 149, w/atchs, dated 11 October 2019.
Exhibit P:	Addendum Record of Proceedings, dated 22 February 2010.
Exhibit Q.	OSD Clarifying Guidance.
Exhibit R:	Advisory opinion, AFBCMR Mental Health, dated 16 April 2020. 
Exhibit S:	Notification of advisory, SAF/MRBC to applicant, dated 29 July 2020.
Exhibit T:	Applicant’s Response, w/atchs, not dated.

Taken together with all Exhibits, this document constitutes the true and complete Record of Proceedings pertaining to Docket Number BC-1990-02737-3, as required by AFI 36-2603, paragraph 4.11.9.