ADDENDUM TO RECORD OF PROCEEDINGS

IN THE MATTER OF:	DOCKET NUMBER: BC-2012-05560 

XXXXXXXXXX	COUNSEL: NONE

 	HEARING REQUESTED: YES

APPLICANT’S REQUEST

The Board reconsider his request to upgrade his under honorable conditions (general) discharge to an honorable discharge.

RESUME OF THE CASE

The applicant is a former Air Force airman first class who was discharged, General (Under Honorable Conditions), from the Air Force under authority of AFR 39-10, Misconduct-Pattern Discreditable Involvement with Military or Civil Authorities with the corresponding separation code of JKA and reentry code 2B.  On 12 Sep 13, the Board considered and denied his request for a discharge upgrade and separation code change, finding that the applicant had provided insufficient relevant evidence to demonstrate the existence of an error or injustice.

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 7 Apr 20, the applicant requested reconsideration of his request and now contends he has new and relevant evidence pertaining to his mental health condition which he feels caused most, if not all of his misconduct in the military.  In support of his application, he submits a Clinical Report from his Clinical Psychologist and Department of Veterans Affairs (VA) Rating Decisions.  

The applicant’s complete submission is at Exhibit F.

POST-SERVICE INFORMATION

On 17 Aug 20, the Board sent the applicant a request for post-service information (Exhibit G), 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.

On 17 Aug 20, the Board sent the applicant the Consolidated Clarifying Guidance at Exhibit G.

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 trial 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

AFBCMR Psychological Advisor recommends denying the application and finds insufficient evidence to support the applicant’s request for a change to his records.  The applicant vaguely contended his mental health condition caused most, if not all of his misconduct in service but failed to elaborate or provide specific information of his mental health condition and how it impacted his functioning in service.  Furthermore, there was no service treatment records available or submitted by the applicant for review that could substantiate or provide the needed additional insight into his mental health condition at the time of service.  The applicant provided a clinical report by his current provider and decision ratings from the VA to verify he was diagnosed with mental health disorders caused from service.  Again, this evidence was found to not be sufficient enough to explain his behaviors and misconduct in service.  The clinical report stated he was diagnosed with an Alcohol Abuse Disorder and Traumatic Brain Injury (TBI) due to experiences he endured in service.  His military records revealed he was given an Article 15 for being drunk and disorderly while he was in tech school which may be attributed to his drinking issues, but he also received three additional Article 15s thereafter for failure to go, assault, and destruction of government property.  None of these latter misconduct were recorded as alcohol related incidents or caused when he was intoxicated.  The applicant also responded to his discharge notification in service and reported he had anger issues and no mention of any mental health conditions such as depression, anxiety, etc. that caused his misconduct.  His VA notes actually reported he had anger issues prior to service (or existed prior to service) and was even seen by a mental health professional for 1-2 years in early childhood for parent-relational problems.  He did not report receiving these counseling services on his enlistment documents.  He claimed to the VA he was physically abused and racially discriminated against in service, which is a possibility and may cause his anger issues, but there were no objective records to corroborate his claims.  His mental health condition leading him to receive mental health treatment and service connected disability compensation from the VA decades post service appeared to have been caused or exacerbated by his post services stressors.  There is no evidence his mental health condition supposedly experienced in the service was aggravated by his military service.  Due to the lack of evidence, the presumption of regularity exists concluding there was no error found in his discharge processing.    

The complete advisory opinion is at Exhibit H.

APPLICANT’S REVIEW OF AIR FORCE EVALUATION

The Board sent a copy of the advisory opinion to the applicant on 24 Sep 20 for comment (Exhibit I), 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 AFBCMR Psychological Advisor and finds a preponderance of the evidence does not substantiate the applicant’s contentions.  There is no evidence his mental health condition allegedly experienced in the service was aggravated by his military service.  In the interest of justice, the Board considered upgrading the discharge based on clemency; however, due to the absence of post service information, including a standard criminal history report from the FBI, the Board does not find upgrading the applicant’s Under Honorable Conditions (General) discharge based on clemency is appropriate at this time.  Finally, the Board is satisfied that the application of liberal consideration does not warrant 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-2012-05560 in Executive Session on 17 Mar 21:

, Panel Chair
, Panel Member
, Panel Member

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

Exhibit E:	AFBCMR Letter and Record of Proceedings, dated 12 Sep 13.
Exhibit F:	Application, DD Form 149, w/atchs, dated 7 Apr 20.
Exhibit G:	Applicant Notification of Clarifying Guidance Clemency, dated 17 Aug 20
Exhibit H:	Advisory opinion, AFBCMR Psychological Advisory, dated 10 Sep 20. 
Exhibit I:	Notification of advisory, SAF/MRBC to applicant, dated 24 Sep 20.

Taken together with all Exhibits, this document constitutes the true and complete Record of Proceedings pertaining to Docket Number BC-2012-05560, as required by AFI 36-2603, paragraph 4.11.9.