SECOND ADDENDUM TO RECORD OF PROCEEDINGS

IN THE MATTER OF:	DOCKET NUMBER: BC-2006-00096-2

XXXXXXXXXX	COUNSEL: NONE
	
	HEARING REQUESTED: NO

APPLICANT’S REQUEST

The Board reconsider her request to upgrade her discharge to an Under Honorable Conditions (General) discharge.

RESUME OF THE CASE

The applicant is a former Air Force Captain, who received a “Dismissal” character of service discharge on 28 Feb 04 with narrative reason. “Court Martial” for wrongful use of cocaine on diverse occasions between 1 Jul 02 and 21 Jan 04.  On 8 Jun 06, the Board considered and denied her request for a discharge upgrade to a general discharge and correct her offenses to only one, rather than two or more offenses. The Board found there was nothing in the evidence provided by the applicant, which would lead them to believe that a change to the actions of the reviewing officials was warranted.  In view of the extreme seriousness of the misconduct she committed (i.e., drug use over an extended period of time, and the well-publicized consequences of drug use by military members), and the short period of time since her separation, the Board did not believe a sufficiently lengthy period of time had elapsed to warrant the exercise of clemency.

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

On 3 Jan 07 and 30 Mar 08, the applicant appealed to the Board for reconsideration without new and relevant information; therefore, the requests were filed without action.

On 10 Jun 20, the applicant requested reconsideration of her request to upgrade her discharge to a General discharge. She contends that during the time in question of her discharge, she suffered from mental instability and made destructive decisions to decrease her pain. If her referral for mental health counseling in 30 Oct 01 had been offered, it could have positively given her the appropriate coping measures to handle the multiple stressors that occurred in her life. In support of her request, the applicant provided new evidence to include a health assessment, employment duties, performance and recognition, character letter, and a list of accomplishments.

The applicant’s complete submission is at Exhibit F.

APPLICABLE AUTHORITY

According to AFI 36-3208, Administrative Separation of Airmen, incorporating changes through 8 June 2017, paragraph 1.18, the types of service characterization are as follows: 

Honorable.  The quality of the airman’s service generally has met Air Force standards of acceptable conduct and performance of duty or when a member's service is otherwise so meritorious that any other characterization would be inappropriate. 

Under Honorable Conditions (General).  If an airman’s service has been honest and faithful, this characterization is warranted when significant negative aspects of the airman's conduct or performance of duty outweigh positive aspects of the airman's military record.

Under Other than Honorable Conditions.  When basing the reason for separation on a pattern of behavior or one or more acts or omissions that constitute a significant departure from the conduct expected of airmen.  The member must have an opportunity for a hearing by an administrative discharge board or request discharge in lieu of trail by court-martial.  Examples of such behavior, acts, or omissions include, but are not limited to:

•	The use of force or violence to produce serious bodily injury or death.

•	Abuse of a special position of trust.

•	Disregard by a superior of customary superior - subordinate relationships.

•	Acts or omissions that endanger the security of the United States. 

•	Acts or omissions that endanger the health and welfare of other members of the Air Force.

•	Deliberate acts or omissions that seriously endanger the health and safety of other persons.

•	Rape, sexual assault, aggravated sexual contact, abusive sexual contact, rape of a child, sexual assault of a child, sexual abuse of a child, forcible sodomy and attempts to commit these offenses.

On 3 Sep 14, the Secretary of Defense issued a memorandum providing guidance to military correction boards regarding liberal consideration for Vietnam veterans claiming Post Traumatic Stress Disorder PTSD (Hagel Memo).  In addition, time limits to reconsider decisions would be liberally waived for applications covered by this guidance. 

Subsequent guidance expanded liberal consideration protections to include all veterans who requested a modification of their discharge, to include character of service, narrative reason for discharge and reenlistment code, due in whole or in part to any mental health condition rather than just PTSD or Traumatic Brain Injury, and included those veterans who were victims of sexual assault or sexual harassment.  Liberal consideration would be given to veterans petitioning for discharge relief when the application for relief is based in whole or in part on the aforementioned conditions.

Under Consideration of Mitigating Factors, it is noted that PTSD is not a likely cause of premeditated misconduct.  Correction Boards will exercise caution in weighing evidence of mitigation in all cases of misconduct by carefully considering the likely causal relationship of symptoms to the misconduct.  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.

Boards are directed to consider the following main questions when assessing requests due to mental health conditions including PTSD, TBI, sexual assault, or sexual harassment:

a. Did the veteran have a condition or experience that may excuse or mitigate the discharge?
b. Did that condition exist/experience occur during military service?
c. Does that condition or experience actually excuse or mitigate the discharge? 
d. Does that condition or experience outweigh the discharge?

Copies of all guidance memoranda can be found at Exhibit H.

AIR FORCE EVALUATION

BCMR Psychological Advisor finds insufficient evidence to support the applicant’s request for a discharge upgrade to general; however, the board may elect to apply liberal consideration to the applicant’s request due to the contention of a mental health condition.

The applicant indicates, “multiple stressors occurred in my life” and noted having a “depressive state of mind.” Of these statements, substantiate neither a mental health disorder nor diagnosis. A review of the 1328 pages submitted of applicant’s service treatment record revealed no evidence of the applicant having received any mental health treatment, evaluation, or mental health diagnosis in service. There was also no record of any observed mental health issues by her medical providers or any complaints made by the applicant to her medical providers about any mental health issues while she was in the service. The applicant was never placed on a duty limiting conditions profile for a mental health condition, she was never deemed not worldwide qualified, and there were no statements of how a mental health condition interfered with her ability to perform her military duties. The applicant also contends she should have been referred to the mental health clinic based on the preventive health screener results. The applicant self-reported her mental status as being “good” which would not trigger a mental health referral. The applicant was a medical provider, a nurse, who had experience working in emergency departments, inpatient, and outpatient medical settings during her time in service; she would have been aware that a referral to the Mental Health Clinic is not required in order to receive further assessment and/or mental health services should she have self-assessed that mental health services were needed. Additionally, when the applicant was referred to Alcohol and Drug Abuse Prevention Treatment (ADAPT) as part of her court martial process, she declined to speak with substance abuse providers about any ongoing stressors and did not request mental health services. A review of the available records found no objective evidence that connection exists between the applicant’s mental health and the misconduct that led to her discharge from service. The applicant used an illicit substance (cocaine) on multiple occasions; there is no evidence she was using cocaine to cope with a mental health condition.

The complete advisory opinion is at Exhibit I.

APPLICANT’S REVIEW OF AIR FORCE EVALUATION

The Board sent a copy of the advisory opinion to the applicant on 9 Feb 21 for comment (Exhibit J), 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 the BCMR Psychological Advisor and finds a preponderance of the evidence does not substantiate the applicant’s contentions. The Board considered liberal consideration but finds no evidence that the applicant’s mental health condition mitigated her actions which led to her discharge.  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-2006-00096-3 in Executive Session on 30 Mar 21:

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 8 Jun 06.
Exhibit F:	Application, DD Form 149, w/atchs, dated 10 Jun 20.
Exhibit G:	Documentary evidence, including relevant excerpts from official records.
Exhibit H: Notification of Clarifying Guidance, dated 22 Jan 21.
Exhibit I:	Advisory opinion, BCMR Psychological Advisor, dated 8 Feb 21. 
Exhibit J:	Notification of advisory, SAF/MRBC to applicant, dated 9 Feb 21.

Taken together with all Exhibits, this document constitutes the true and complete Record of Proceedings, as required by AFI 36-2603, paragraph 4.11.9.