ADDENDUM TO RECORD OF PROCEEDINGS

IN THE MATTER OF:	DOCKET NUMBER: BC-2004-03016-2

XXXXXXXXXXXXXXXXXXXX	COUNSEL: NONE

	HEARING REQUESTED: NO

APPLICANT’S REQUEST

His bad conduct discharge be upgraded to honorable.

RESUME OF THE CASE

The applicant is a former airman basic (E-1) who served in the Regular Air Force.

On 9 Nov 90, a general court-martial found the applicant guilty of dereliction of duty, in violation of Article 92, Uniform Code of Military Justice (UCMJ) and wrongful use of cocaine, in violation of Article 112a, UCMJ.  The court-martial sentenced the applicant to a bad conduct discharge, confinement for six months, forfeiture of all pay and allowances, and reduction to the grade of airman basic.

On 30 Dec 90, the convening authority approved only so much of the sentence as provided for a bad conduct discharge, confinement for six months, forfeiture of $500.00 pay per month for six months, and reduction to airman basic.

On 12 Sep 91, General Court-Martial Order No. 105 was issued ordering a bad conduct discharge to be executed.  On 19 Feb 92, the applicant received a bad conduct discharge with a narrative reason for separation of Conviction by Court Martial (Other Than Desertion) and the corresponding separation code of “JJD.”  He was credited with 5 years, 11 months and 6 days of active service.

On 15 Feb 05, the Board considered and denied the applicant’s request to upgrade his discharge finding that the applicant had provided insufficient evidence of an error or injustice to warrant corrective action.  The Board agreed with the opinion and recommendation of the Air Force Office of Primary Responsibility (OPR) that the applicant had not been the victim of an error or injustice.  The Board found no evidence which indicated the applicant’s discharge was improper or that it exceeded the limitations set forth in the Uniform Code of Military Justice.  For an accounting of the applicant’s original request and the rationale of the earlier decision, see the Record of Proceedings at Exhibit E.

On 17 Jul 19, the applicant submitted a request for reconsideration.  He again contends that his discharge should be upgraded to honorable based on him meeting or exceeding the Air Force standard during his first four years of service.  He was on a tour of duty in Korea when he began experiencing the first signs of Post Traumatic Stress Disorder (PTSD).  He started to have a constant fear of dying, an impending feeling of doom, and a heightened mental alertness because of being stationed near the Korean Demilitarized Zone.  He also began having panic attacks because of the constant exercises in full chemical gear and having to wear the gear on a regular basis.  After returning from Korea, his PTSD got worse.  He had incidents where he abused his wife.  He used alcohol and other means to try and cope.  He failed the Command Directed Urine Test by testing positive for cocaine.  He was given punishment under UCMJ, which was in direct violation to the Command Directed testing order.  He makes reference to the Department of Defense (DoD) policy guidance regarding petitions for discharge upgrade by veterans claiming PTSD.

As new evidence, the applicant provides a copy of a psychiatric evaluation and discharge summary from a civilian psychiatric inpatient facility and excerpts from his military records.

The applicant’s complete submission is at Exhibit F.

POST-SERVICE INFORMATION

On 18 Oct 19, the Board sent the applicant a request for post-service information (Exhibit H), including a standard criminal history report from the Federal Bureau of Investigation (FBI); however, he has not replied.

APPLICABLE AUTHORITY

On 3 Sep 14, 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 by this guidance.

On 25 Aug 17, 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 causal 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 causal 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 Jul 18, the USD P&R issued further guidance with the intent to set clear standards.

Copies of the Board guidance memoranda are at Exhibit K.

AIR FORCE EVALUATION

AFLOA/JAJM recommends denying the application.  The record contains insufficient evidence or allegation of error or injustice tending to undermine the sentence from the applicant’s general court-martial.  In accordance with Title 10 United States Code (U.S.C.), section 1552(f), the Air Force Board for Correction of Military Records has no authority to overturn a court-martial conviction, but may, on the basis of clemency, adjust the sentence.  The applicant has not submitted any new evidence or information that casts doubt on the outcome of his trial.  Therefore, AFLOA/JAJM finds no basis to set aside the sentence adjudged at the applicant’s court-martial.

The complete advisory opinion is at Exhibit I.

The AFBCMR Psychiatric Advisor finds insufficient evidence to warrant the desired change of the record.  The Psychiatric Advisor would like to note that this is the applicant’s second petition to the AFBCMR.  In his current petition, the applicant’s argument has changed and he asserts that he developed PTSD while stationed in Korea.  The applicant relates to the Board that the frequent use of protective gear, specifically a gas mask, had resulted in significant anxiety and PTSD.  Furthermore, he argues that drug use and assaultive behavior towards his wife was a result of his mental health condition.  Unfortunately, there is no medical documentation to support the applicant’s claims and the applicant discloses avoiding mental health support due to the concerns of how others would perceive him.  However, the applicant presents for the review, notes from the civilian psychiatric inpatient facility that indicates the applicant has a longstanding history of substance abuse, anxiety, depression and PTSD.  It is possible that the applicant had developed his psychiatric ailments while in service, although, the diagnoses of PTSD is not supported by the absence of the traumatic event.  The wear of the protective gear might have resulted in anxiety; however, on its own, it is not a traumatic experience to fulfill PTSD diagnostic criteria.  Furthermore, since the applicant’s separation over 20 years ago, the Department of Defense has undergone many modifications.  As a result, the modern armed forces have very low tolerance for domestic violence.  Back in 1992, the applicant received a Letter of Reprimand for spousal abuse; however, at the contemporary times, the repercussions would be significantly harsher.  In fact, this misconduct alone could potentially result in an involuntary separation with an under other than honorable conditions (UOTHC) discharge characterization.

The complete advisory opinion is at Exhibit J.

APPLICANT’S REVIEW OF AIR FORCE EVALUATION

The Board sent a copy of the advisory opinion to the applicant on 23 Sep 20 for comment (Exhibit L), but has received no response.

FINDINGS AND CONCLUSION

After reviewing all Exhibits, the Board remains unconvinced the evidence presented demonstrates an error or injustice.  The Board concurs with the rationale and recommendation of AFLOA/JAJM and the AFBCMR Psychiatric Advisor and finds a preponderance of the evidence does not substantiate the applicant’s contentions.  Finally, the Board is satisfied that the application of liberal consideration does not warrant any relief.  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-2004-03016-2 in Executive Session on 14 Oct 20:

, Panel Chair 
, Panel Member
, Panel Member

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

Exhibit E:	Record of Proceedings, w/ Exhibits A-D, dated 28 Feb 05.
Exhibit F:	Application, DD Form 149, w/atchs, dated 17 Jul 19.
Exhibit G:	Documentary evidence, including relevant excerpts from official records.
Exhibit H:	Post Service Clemency Letter, dated 18 Oct 19.
Exhibit I:	Advisory opinion, AFLOA/JAJM, dated 3 Jan 20.
Exhibit J:	Advisory opinion, AFBCMR Psychiatric Advisor, dated 25 Mar 20.
Exhibit K:	Consolidated clarifying guidance, various dates.
Exhibit L:	Notification of advisory, SAF/MRBC to applicant, dated 23 Sep 20.

Taken together with all Exhibits, this document constitutes the true and complete Record of Proceedings pertaining to Docket Number BC-2004-03016-2, as required by AFI 36-2603, paragraph 4.11.9.