SECOND ADDENDUM TO RECORD OF PROCEEDINGS

IN THE MATTER OF:	DOCKET NUMBER: BC-2008-00404-4

xxxxxxxxxxxxxxxx	COUNSEL: NONE

	HEARING REQUESTED: YES	

APPLICANT’S REQUEST

The Board reconsider his request to have his Officer Performance Report (OPR), ending Apr 02, removed and he receive Special Section Board (SSB) consideration for all boards.

RESUME OF THE CASE

The applicant is a retired Air Force major (O-4).  

On 7 Aug 08, the Board considered and denied his request to have his OPR, rendered for the period of performance 3 Apr 01 to 2 Apr 02, removed and he receive SSB consideration for promotion to lieutenant colonel; finding insufficient evidence to demonstrate the existence of an error or injustice. The Board noted the applicant’s contentions; however, found the detailed comments provided by the Air Force offices of primary responsibility (OPRs) adequately addressed those allegations.  In this respect, they noted the applicant did not present any credible evidence from his senior rating chain or other agencies to support his contention of an error or injustice.

On 5 Aug 10, the Board reconsidered and denied his request to remove his Apr 02 OPR and be given SSB consideration; finding the applicant had provided insufficient evidence of an error or injustice to justify relief.  After thoroughly reviewing the additional documentation submitted in support of his appeal and the evidence of record, the Board did not believe the applicant had overcome the rationale expressed in the previous decision. While the applicant provided reports stating that bias existed against airmen in nuclear-related fields, the Board found these reports broad in nature and did not support his argument.  The Board did note that although his medical condition could have been a factor in his duty performance, a letter from his commander dated 26 Sep 08, stated he was more than able to perform his primary duties.  Furthermore, the AFI on performance reports states that raters are to assess and document what the ratee did, how well he or she did it, and the ratee's potential based on that performance.  Based on the evidence of record, it appears his rater did just that.

On 13 Apr 15, the AFBCMR Staff sent a letter to the applicant denying his request for removal of his OPR and SSB consideration stating the applicant did not provide new relevant evidence to meet the criteria for reconsideration by the Board.

For an accounting of the applicant’s original requests and the rationale of the earlier decisions, see the Letter and Records of Proceedings at Exhibits F, H, and I. 

On 5 Apr 21, the applicant requested reconsideration of his request for his OPR ending Apr 02 be removed and he receive SSB consideration for all boards. He now contends Post-Traumatic Stress Disorder (PTSD) negatively impacted his career performance while he was in uniform.  The Department of Veterans Affairs (DVA) diagnosed him with PTSD and based on liberal consideration, he wants full consideration of his request to remove his OPR and SSB consideration for all boards prior to his retirement.  In support of his  reconsideration request, the applicant submitted the following new evidence: (1) A statement from a licensed Professional Counselor, dated 17 Apr 20 and (2) a DVA decision letter, dated 25 Nov 20.

The applicant’s complete submission is at Exhibit J.

APPLICABLE AUTHORITY/GUIDANCE

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.

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?

On 25 Jul 18, the Under Secretary of Defense for Personnel and Readiness (USD P&R) issued supplemental guidance to military corrections boards in determining whether relief is warranted based on equity, injustice, or clemency.  These standards authorize the board to grant relief in order to ensure fundamental fairness.  Clemency refers to relief specifically granted from a criminal sentence and is a part of the broad authority Boards have to ensure fundamental fairness.  This guidance applies to more than clemency from sentencing in a court-martial; it also applies to any other corrections, including changes in a discharge, which may be warranted on equity or relief from injustice grounds.  This guidance does not mandate relief, but rather provides standards and principles to guide Boards in application of their equitable relief authority.  Each case will be assessed on its own merits.  The relative weight of each principle and whether the principle supports relief in a particular case, are within the sound discretion of each Board.  In determining whether to grant relief on the basis of equity, an injustice, or clemency grounds, the Board should refer to the supplemental guidance, paragraphs 6 and 7. 

AIR FORCE EVALUATION

The AFRBA Psychological Advisor completed a review of all available records and finds insufficient evidence to support the applicant’s request for the desired changes to his record.  A review of his specific, contested Apr 02 OPR was done multiple times, finding no evidence that his mental health condition impaired his performance.  This OPR however, reported the contrary, that he was an exceptional officer with many glowing praises and accolades pertaining to his performance.  There were no reports of any behavioral or mental health issues observed by his raters, and he met standards for all performance factors further supporting there were no concerns or issues with his performance.  The applicant had received at least nine subsequent OPRs after this contested OPR rating period, and none of these subsequent OPRs reflected any impairments or issues caused by his mental health condition.  He continued to meet standards on all OPRs with no derogatory comments reported.  There were no issues reported in his OPRs preceding his Apr 02 OPR as well.  The applicant’s personnel file was unremarkable for any counseling or reprimands for any behavioral or misconduct issues.  Finally, the applicant was able to successfully serve for 20 years, complete his service obligation, and achieve an honorable discharge.  These indicators signify he was able to function appropriately and no indication his mental health condition had impaired his ability to reasonably perform his duties in accordance to his office, grade, rank or rating.  Therefore, there is no evidence of any error or injustice with his Apr 02 OPR that would warrant removal from his military records.

The psychological advisor acknowledges the applicant was diagnosed with PTSD post discharge and his post service provider had implied his condition of PTSD was reflected in his 2002 OPR.  The provider nor the applicant had not provided any clarifying information about how his condition or symptoms of PTSD caused his behaviors and impacted his performance. They were vague with their explanations with no specific examples of how his performance was affected by his PTSD, did not discuss the specific symptoms he had experienced in service, and when he began to experience PTSD symptoms.  He was diagnosed with PTSD nine years post discharge, and it is possible and more likely than not, he may have experienced a delayed onset of PTSD, in which he was able to meet diagnostic criteria years following the triggering traumatic event.  The letter from his provider also did not provide an adequate rationale of the symptoms and reasons he met diagnostic criteria for PTSD.  Simply receiving a diagnosis of PTSD is not sufficient enough to demonstrate a nexus between his condition and performance had existed during his 2002 OPR rating period or any other times during his service.  
Liberal consideration is applied to the applicant’s request due to the contention of a mental health condition. The following are responses to the four questions in the policy based on the available records for review:

1. Did the veteran have a condition or experience that may excuse or mitigate the discharge?
The applicant contends he was diagnosed with service connected PTSD that may have impacted his performance during the 2002 OPR rating cycle.

2. Did the condition exist or experience occur during military service?
There is no evidence he was evaluated, diagnosed or received treatment for PTSD during service.  The applicant was diagnosed with PTSD caused by his deployment experience to Southwest Asia in 1999 by his post service provider, nine years post discharge.

3. Does the condition or experience excuse or mitigate the discharge?
There is no evidence the applicant’s mental health condition of PTSD caused his alleged poor performance during service. There is no evidence he had any behavioral, conduct, or performance issues during service that would impair his functioning and would result in a substandard OPR for the rating period ending on Apr 02. His condition or experience does not excuse or mitigate his discharge.

4. Does the condition or experience outweighs the discharge?
Since there is no evidence of any mental health condition excusing or mitigating his performance or discharge, his condition or experience does not outweigh his original discharge.

The complete advisory opinion is at Exhibit K.

APPLICANT’S REVIEW OF AIR FORCE EVALUATION

The Board sent a copy of the advisory opinion to the applicant on 11 Jan 22 for comment (Exhibit L), and the applicant replied on 24 Feb 22.  In his response, the applicant contends his PTSD was a result of his 1999 Southwest Asia deployment which impacted is 2002 OPR.  The advisory opinion failed to reference statements from independent observers including an Air Force 4-Star General.  He again submits as evidence his DVA disability rating which indicates his PTSD was service-connected; a letter from a Licensed Professional Counselor indicated the probable cause of his PTSD is deployment related; and a letter from the Assistant Vice Chief of Staff, HQ USAF Space Command stating his 2002 OPR was inaccurate and biased.

The applicant’s complete response is at Exhibit M.

On 4 May 22, the applicant sent in additional evidence and is asking the Board to consider the attachments which further illustrates the efforts of the Air Force to change the overall mindset for mental health (i.e. PTSD).  He states during his time in service, this attitude DID NOT exist.  The message from the Deputy Secretary of Defense stresses the importance of seeking help with mental health issues stating addressing mental health challenges early is vital to prevent stressors from becoming overwhelming.  It is critical to recognize the signs of a mental health challenge and to take appropriate steps to improve your well-being; seeking help is a sign of strength and not a weakness.  The articles he attaches address the impact of reporting a mental health issue in regards to a member’s security clearance.

The applicant’s complete response is at Exhibit N.

FINDINGS AND CONCLUSION

1.  The application was timely filed.

2.  The applicant exhausted all available non-judicial relief before applying to the Board.

3.  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 AFBCMR Psychological Advisor and finds a preponderance of the evidence does not substantiate the applicant’s contentions.  Specifically, the Board finds no evidence the applicant’s mental health condition of PTSD caused his alleged poor performance during service.  There is no evidence he had any behavioral, conduct, or performance issues during service that would impair his functioning due to his mental health contention or be the cause of a substandard OPR for the rating period ending on Apr 02.  Therefore, the Board recommends against correcting the applicant’s records.

4.  The applicant has not shown a personal appearance, with or without counsel, would materially add to the Board’s understanding of the issues involved.

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-2008-00404-4 in Executive Session on 3 Feb 22, 30 Mar 22, and 13 May 22:

, Panel Chair
, Panel Member
, Panel Member

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

Exhibit F:	Record of Proceedings, w/ Exhibits A-E, dated 7 Aug 08.
Exhibit H:	Addendum Record of Proceedings, w/ Exhibit G, dated 5 Aug 10.
Exhibit I:  Letter (Denial or Recon), SAF/MRBC, 13 Apr 15
Exhibit J:	Recon Application, DD Form 149, w/atchs, dated 5 Apr 21.
Exhibit K:	Advisory Opinion, AFBCMR Psychological Advisor, dated 30 Sep 21. 
Exhibit L:	Notification of Advisory, SAF/MRBC to Applicant, dated 11 Jan 22.
Exhibit M: Applicant’s Response, dated 24 Feb 22.
Exhibit N: Additional Response from Applicant, w/ atchs, dated 4 May 22.

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.