SECOND ADDENDUM TO RECORD OF PROCEEDINGS

IN THE MATTER OF:	DOCKET NUMBER: BC-2012-00473-4

xxxxxxxxxxx	COUNSEL: XXXXXXXXXX

 	HEARING REQUESTED: YES

APPLICANT’S REQUEST

The Board reconsider his request for the following:

1.  His under other than honorable conditions (UOTHC) discharge be upgraded to honorable.

2.  His narrative reason for separation and corresponding separation code be changed from “Misconduct (Serious Offense)” and “GKQ” to “Secretarial Authority” and “KFF.”

3.  He be given a medical retirement.

RESUME OF THE CASE

The applicant is a former Air Force lieutenant colonel (O-5) who entered active duty on 19 May 90 in the grade of captain (O-3) after attending the Uniformed Services University of Health Sciences (USUHS).  He was discharged on 10 Dec 10 after serving 19 years, 9 months, and 29 days of active service.  He was discharged with an UOTHC characterization of service and a narrative reason for separation of “Misconduct (Serious Offense).”

On 2 Jul 13, the Board considered and denied the applicant’s request for a discharge upgrade, a change to his narrative reason and corresponding separation code, reinstatement to active duty pending a Medical Evaluation Board (MEB) disposition, a medical retirement with a 60 to 75 percent disability rating, and removal of his Article 15s and Letter of Reprimand (LOR) issued in 2009.  The Board determined that the evidence provided was insufficient to find an error or injustice.  

On 30 Sep 13 and 25 Oct 13, the applicant requested reconsideration.  However, on 30 Dec 14, the Executive Director, Board for Correction of Military Records determined it did not meet the criteria for reconsideration by the Board.  For an accounting of the requests for reconsideration, see the AFBCMR Letter at Exhibit K.  

On 23 Mar 17 and 17 Apr 17, the Board reconsidered and denied his request for a medical retirement, reimbursement of medical expenses and attorney fees, removal of all nonjudicial punishment (NJP) actions and the Nov 09 LOR, and be given military service credit for his four years at USUHS.  In the alternative of a medical retirement, he be upgraded to an honorable or a general (under honorable conditions) discharge.  Pursuant to a remand order, the Board reconsidered the applicant’s claim and concluded the totality of the evidence and the applicant’s quality of service did not support a determination he was denied a medical retirement and improperly discharged with an UOTHC service characterization.  

For an accounting of the applicant’s original request and the rationale of the earlier decisions, see the AFBCMR Letters and Records of Proceedings at Exhibits F, K, and X.

On 4 Aug 21, the applicant requested reconsideration of his request for an upgrade to his characterization of service and narrative reason for separation and be given a medical disability retirement.  His counsel contends he regularly sought treatment from the Department of Veterans Affairs (DVA) for his neurological eye condition sustained in the 2009 bicycle crash and for the Post-Traumatic Stress Disorder (PTSD) and Traumatic Brain Injury (TBI) sustained in combat.  These conditions progressed significantly in the years since the original diagnosis.  This new evidence vividly depicts the deterioration of his ocular and mental health and would have had a probable effect on matters concerning the propriety and equity of his discharge.  Due to this, as well as the liberal consideration policy that did not exist at the time of the applicant’s discharge and his exceptional service record, as detailed in the letters of recommendation, the applicant requests the Board reconsider its previous decision and grant him an in-person hearing to present his case.  His counsel also contends the Air Force Discharge Review Board (AFDRB) summarily rejected his Jul 21 petition without considering the merits of the petition, thereby depriving him of the due process guaranteed by the laws and regulations.

As new evidence, the applicant submitted: (1) DVA medical records; (2) three letters of recommendation; and (3) three character affidavits. 

The applicant’s complete submission is at Exhibit Y.

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, 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. 

On 3 Sep 14, the Board staff provided the applicant a copy of the liberal consideration guidance (Exhibit L).

AFI 36-3208, Administrative Separation of Airmen, describes the types of service characterization: 

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.

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.  As discussed in the previous psychiatric advisory, there was no evidence the applicant was diagnosed or had PTSD at the time of his discharge from the military, and there was no nexus established between his mental health condition and misconduct resulting with his court-martial conviction (absence without leave (AWOL) on multiple occasions, making numerous false official statements, and conduct unbecoming of an officer and gentleman by submitting a fabricated document purportedly by his commander to the AFBCMR and the Secretary of the Air Force and subsequent discharge.  Additionally, his misconduct had predated his behavioral health concerns and TBI and his conditions of anxiety and depression were primarily developed in response to the consequences of his misconduct.  Returning to the issue at hand, the applicant’s records indicated he was not diagnosed with PTSD until his Compensation and Pension (C&P) exam was performed on 4 Oct 14, almost four years post discharge.  This psychological advisor does not dispute the validity of this diagnosis; however, the issue is not whether the applicant had a valid PTSD diagnosis but whether this condition had elevated to potentially unfitting, meeting the criteria to be referred to the MEB for a potential medical retirement. His objective military records do not support this notion.  There was evidence he had experienced anxiety and depressive symptoms during service in response to his occupational stressors and not due to his bike accident, which was considered his traumatic event, resulting with his TBI.  There were no reports he had experienced more classic or specific PTSD symptoms such as recurrent, involuntary, and intrusive distressing memories of the traumatic event, avoidance of reminders or memories of the traumatic event, hypervigilance, startled exaggerated responses, flashbacks, nightmares, in his service treatment records.  These specific PTSD symptoms were reported during the post-service C&P exam that were in response to his court-martial and post-service stressors of employment and financial issues.  It appeared his mental health symptoms differ during and post-service and in response to different stressors at different times in his life.  It is possible he had a delayed onset of PTSD as it is not atypical to experience a delayed onset of a condition especially a mental health condition like PTSD.  Also, it may take years for symptoms to develop and become clear and this scenario appears to be relevant to the applicant’s experience and clinical presentation.  Regardless of when he was diagnosed with PTSD, there was no evidence his condition of PTSD had impacted his ability to reasonably perform his military duties in accordance to his office, grade, rank or rating and certainly did not cause his discharge from service.  He was never placed on a duty limiting condition profile or deem not worldwide qualified due to his condition of PTSD.  Receiving a mental disorder diagnosis and/or mental health treatment does not automatically produce a condition as unfitting as more requirements are needed to be met for eligibility for a medical retirement.

The applicant’s legal counsel pointed to the opinion from the first C&P evaluator that it was impossible to differentiate between his diagnoses of PTSD and TBI as these conditions have overlapping symptoms.  While this could be true, the mental health condition that was referred to the MEB was cognitive disorder derived from his TBI because it was the most prevalent condition/symptoms at the time in service.  Again, he did not display prominent PTSD symptoms during service that would be referred to the MEB.  His MEB never progressed and his case was never adjudicated or reviewed by the PEB to determine if his mental health condition was considered to be unfitting.  His MEB was suspended due to his court-martial proceeding.  Previous petitions to the AFBCMR found this procedure was appropriate based on advisories from subject matter experts addressing this administrative process.  Being referred to the MEB does not guarantee the condition would be found unfitting and/or the condition would receive the necessary rating for a medical retirement.  Despite the eventual termination of his MEB, the objective records from the snapshot in time of service finds there was no evidence he met diagnostic criteria for PTSD during service, and this condition never elevated to potentially unfitting to meet criteria to be referred to the MEB and DES for discharge processing.  Due to these reasons, the applicant’s request for a medical retirement for PTSD could not be supported.

For awareness, since the applicant was service connected for PTSD and persistent depressive with anxious distress by the DVA, the military’s DES, established to maintain a fit and vital fighting force, can by law, under Title 10, U.S.C. only offer compensation for those service incurred diseases or injuries which specifically rendered a member unfit for continued active service and were the cause for career termination; and then only for the degree of impairment present at the “snapshot” time of separation and not based on post-service progression of disease or injury.  To the contrary, the DVA, operating under a different set of law, Title 38, U.S.C., is empowered to offer compensation for any medical condition with an established nexus with military service, without regard to its impact upon a member’s fitness to serve, the narrative reason for release from service, or the length time transpired since the date of discharge.  The DVA may also conduct periodic reevaluations for the purpose of adjusting the disability rating awards as the level of impairment from a given medical condition may vary [improve or worsen] over the lifetime of the veteran.  The applicant and his legal counsel did not clearly explain or discuss specifically how his mental health condition of PTSD may cause or mitigate his misconduct (AWOL, false statements, and fabricated documents) resulting with his court-martial conviction and discharge.  Again, his objective military and service treatment records revealed he had engaged in numerous and serious misconduct prior to his TBI/bicycle accident, and his symptoms of anxiety and depressive symptoms were in response to the legal and occupational consequences of his own misconduct.

There was no evidence the applicant had any mental health conditions to include PTSD or similar or cognitive impairments/TBI issues at the time of his misconduct causing him to be AWOL, making false statements, and submitting a fabricated memorandum purportedly authored by his commander to the AFBCMR and the Secretary of the Air Force in an effort to remove an Article 15 from his record.  These documented misconduct illustrated his behaviors were not impulsive and could actually be premediated for secondary gains.  He is a highly intelligent individual based on his profession, and he was familiar with the rules, policies and regulations since he had been in the service as an officer for almost 20 years.  Therefore, his request for an honorable discharge could not be supported because there was no evidence his mental health condition had a direct impact on his misconduct leading to his court-martial conviction and discharge from service.  This psychological advisor concurs with the opinion rendered by the previous psychiatric advisor and finds there was no error or injustice with his discharge from service from a mental health perspective.  The applicant was discharged due to his serious misconduct and a medical discharge/retirement would not supersede or outweigh his administrative discharge according to his records. 

The applicant and his legal counsel are requesting liberal consideration to be applied to his petition.  This psychological advisor opines liberal consideration is not required to be applied to his request due to the element of his misconduct being considered premeditated causing his discharge according to policy guidance.  However, should the Board choose to apply liberal consideration to the applicant’s request, the following are responses to the four questions from the Kurta memorandum based on information presented in the records for review:

1. Did the veteran have a condition or experience that may excuse or mitigate the discharge?
The applicant and his legal counsel request an upgrade of his discharge to honorable and medical retirement due to PTSD.

2. Did the condition exist or experience occur during military service?
There is no evidence his condition of PTSD had existed or was experienced during military service.  He was not diagnosed with PTSD until about four years post-service by the DVA caused by his TBI/traumatic experience and aggravated by his court-martial and post-service stressors.  He was reported to have anxiety and depressive symptoms during service, but they were in response to the consequences of his own misconduct.

3. Does the condition or experience excuse or mitigate the discharge?
There is no evidence his mental health condition of PTSD caused his numerous misconduct of being AWOL, making false statements, and submitting fabricated documents to the AFBCMR and the Secretary of the Air Force and would not excuse or mitigate his discharge for misconduct.  There is no evidence the applicant had or was diagnosed with PTSD during service and no evidence this condition had elevated to potentially unfitting to be referred to the MEB for a medical discharge/retirement.

4. Does the condition or experience outweighs the discharge?
Since his mental health condition does not excuse or mitigate his discharge, his condition also does not outweigh his original administrative discharge.  He had numerous serious misconduct that had outweighed a medical discharge.

The complete advisory opinion is at Exhibit Z.

APPLICANT’S REVIEW OF AIR FORCE EVALUATION

The Board sent a copy of the advisory opinion to the applicant on 19 May 22 for comment (Exhibit AA), and the applicant replied on 3 Jun 22.  In his response, the applicant’s counsel contends the previous advisory from 2017 referenced by the Psychological Advisor had extensive errors along with the current advisory.  Both advisories incorrectly and unnecessarily seek to diminish the evidence presented.  The applicant’s records reveal he suffered from PTSD as early as 2007 and his symptoms were exacerbated by the 2009 bicycle accident which caused his condition to worsen over time.  So much so, that he had a S4T profile, which prohibited him from deploying and severely limited his medical privileges.  The use of the word “premeditated” when using to describe the applicant’s offensives is false.  The applicant was not convicted of any premeditated conduct, he was convicted of absence without leave, making a false official statement regarding his leave, and conduct unbecoming an officer.  Both his TBI and PTSD is well documented in his medical records which lends substantial doubt that he would have received an UOTHC discharge if the liberal consideration policy was in effect at the time of his discharge.

The applicant’s complete response is at Exhibit AB.

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 the AFRBA Psychological Advisor and finds a preponderance of the evidence does not substantiate the applicant’s contentions.  The Board notes the applicant’s claim that if his TBI and PTSD would have been taken into consideration at the time of his discharge, he would not have been given an UOTHC discharge.  However, the Board does not find the evidence presented sufficient to conclude that his mental health condition excuses, mitigates, or outweighs his original discharge finding no evidence of a nexus between his mental health condition and his misconduct.  Therefore, the Board is satisfied that the application of liberal consideration does not warrant relief.  Furthermore, counsel contends the AFDRB arbitrarily dismissed the applicant’s case without being considered, thereby depriving him of the due process guaranteed by the laws and regulations.  The Board however agrees with the AFDRB staff’s decision to return the applicant’s claim without action because he previously had his case reviewed by the Board of Corrections to Military Records, which is the Air Force’s highest level of appellate review.  In the applicant’s original AFBCMR case, his request was amended to include a discharge upgrade which was requested by the applicant’s counsel in his response to an advisory opinion.  Accordingly, 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-2012-00473-4 in Executive Session on 6 Jun 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 2 Jul 13.
Exhibit K: Reconsideration Denial, dated 30 Dec 14.
Exhibit X:	Addendum Record of Proceedings, w/Exhibits F-W, dated 7 Aug 17.
Exhibit Y:	Application, DD Form 149, w/atchs, dated 4 Aug 21.
Exhibit Z:	Advisory Opinion, AFRBA Psychological Advisor, dated 18 May 22. 
Exhibit AA: Notification of Advisory, SAF/MRBC to Applicant, dated 19 May 22.
Exhibit AB: Applicant’s Response, w/atchs, dated 3 Jun 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.