ADDENDUM TO RECORD OF PROCEEDINGS

IN THE MATTER OF:	DOCKET NUMBER: BC-2013-00427-2

xxxxxxxxxxxx	COUNSEL: NONE

	HEARING REQUESTED: YES

APPLICANT’S REQUEST

The Board reconsider his request to upgrade his under other than honorable conditions (UOTHC) discharge to honorable.

RESUME OF THE CASE

The applicant is a former Air Force technical sergeant (E-6).  

On 21 Nov 13, the Board considered and denied his request for a discharge upgrade; finding the applicant had provided insufficient evidence of an error or injustice to justify relief.  The Board considered upgrading his discharge on the basis of clemency; however, did not find the evidence presented sufficient to recommend granting the relief sought on that basis noting it would be unfair to all those who served honorably to extend Veteran’s benefits to someone who committed crimes such as the applicant’s while on active duty.

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 F. 

On 4 Jan 21, the applicant requested reconsideration of his request for a discharge upgrade.  He contends his Post-Traumatic Stress Disorder (PTSD) caused his actions which ultimately led to his unfavorable discharge.  His disturbing criminal behavior on 24 Sep 90 was an isolated event caused by his PTSD; there is no other misconduct before or after this isolated event.  He had stellar behavior on and off-duty prior to the incident to include the years following the incident.  On 16 Feb 21, in support of his reconsideration request, the applicant submitted the following new evidence: (1) Character Reference Letters; (2) Federal Employment Records; (3) Medical Records; and (4) FBI Report dated 31 Dec 20.  According to the report, the applicant has had no arrests since his discharge on 30 Apr 92.

The applicant’s complete submission is at Exhibits G and H.

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 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. 

The entire guidance can be found at Exhibit I.

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 AFBCMR Psychological Advisor recommends denying the applicant’s request finding insufficient evidence to support a discharge upgrade based on his mental health contention.  The psychological advisor reviewed all available records and found the applicant’s explanation for his behavior plausible.  It is to note there is no evidence he was diagnosed with PTSD or any other mental health disorders while in service.  His service treatment records reported he had a documented history of martial and financial problems and his personal statements through the years reported these stressors were compounded with personal (miscarriages) and family issues.  The cumulative stressors that he was experiencing at the time most likely overwhelmed him resulting with impaired judgment and poor decision making skills.  These conditions may have also caused him to engage in behaviors that were probably considered unusual and uncharacteristic, considering the applicant had served for 17 years at the time of the incident without any prior documented misconduct issues.  During times of significant distress, one may experience a depersonalization experience which the applicant had attested, he did not know why he behaved in such a way.  His service treatment records dated on 28 Nov 90 also stated he blacked out and his behaviors leading to his arrest, was possibly stress related.  It appeared he had an anger outburst from the effects of his argument with his wife that could also cause impaired judgment, impulsivity, and violent/volatile behaviors.  Although his behaviors could be explained by his emotional distress, this psychological advisor opines the egregious nature of his criminal behaviors and misconduct could not be overlooked or outweighed.  The applicant held a knife to a stranger’s throat that he could have easily caused serious harm or could have been fatal to the victim.  Fortunately, the situation never escalated to this magnitude.  The applicant was convicted at civilian court for his crimes and was discharged from service for these issues accordingly.  Thus, there is no error or injustice identified with his discharge process from service.  The Board may elect to apply liberal consideration to the applicant’s request due to his contention of a mental health condition.  It is plausible the applicant’s overwhelming stress and anger caused by the aforementioned issues at the time of the incident may cause him to have impaired judgment, poor decision making skills, impulsive behaviors, and violent/volatile behaviors. His condition and experience may explain his behaviors, but do not excuse, mitigate, or outweigh his discharge due to the serious nature of the violent crime he had committed in which he was convicted and sentenced at civilian court.

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 30 Sep 21 for comment (Exhibit K), and the applicant replied on 3 Oct 21.  In his response, the applicant contends the advisory opinion states that there was no record of mental health treatment in his service records.  As this is true, it is because he was conditioned from basic training and throughout his military career to suppress stress and emotions in order to complete the mission and not put lives in jeopardy unnecessarily.  Secondly, he personally, and most anyone he knew at that time, had no idea what PTSD was or how it occurred, and no one in the mental health clinic spoke of it.  Furthermore, he had a Top Secret security clearance and everyone knew that mental health records containing the wrong type of information or treatment would kill a career and/or promotion eligibility.  The financial hardship and marital issues, mentioned by the advisor, while adding to the stress resulting in the PTSD, are not the main issues as presented in the advisory opinion.  He does not deny that a crime was committed and that he was the one who committed it.  He has not and does not fault the Air Force for the actions it took at the time, given the knowledge of PTSD at the time, and the political nature of the crime being committed off-base in the civilian community. However, he does disagree with the advisor’s final statement that the advisor conducted an exhaustive review of the available records.  His DVA mental health treatment records were and are available to someone of his/her caliber for the purpose of assessment, as are his evaluations leading up to his official diagnosis and decision letters, all of which not only diagnose PTSD as having been the cause of his behavior in Sep 90, but also establish the nexus of that behavior being service-connected.

The applicant’s complete response is at Exhibit L.

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 AFBCMR 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 contended mental health condition mitigated his misconduct which led to his discharge.  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-2013-00427-2 in Executive Session on 23 Nov 21:

, 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 21 Nov 13.
Exhibit G:	Application, DD Form 149, dated 4 Jan 21.
Exhibit H:	Additional Documents submitted by the Applicant, dated 16 Feb 21.
Exhibit I:   Letter to Applicant, SAF/MRBC (Liberal Consideration), dated 14 May 21.
Exhibit J:	Advisory Opinion, AFBCMR Psychological Advisor, dated 20 May 21. 
Exhibit K:	Notification of Advisory, SAF/MRBC to Applicant, dated 30 Sep 21.
Exhibit L:	Applicant’s Response, w/atchs, dated 3 Oct 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.