ADDENDUM TO 
RECORD OF PROCEEDINGS

IN THE MATTER OF:	DOCKET NUMBER: BC-2013-02823-2

   	COUNSEL:   

	HEARING: YES 

APPLICANT REQUESTS:

His Under Other Than Honorable Conditions (UOTHC) discharge be changed to honorable or general, and the narrative reason for discharge on his DD Form 214, Certificate of Release or Discharge from Active Duty, be change to “Secretarial Discretion.”  

RESUME OF THE CASE:

The applicant entered the Regular Air Force on 14 May 69. 

On 10 Jan 72, the applicant received an UOTHC discharge and was credited with two years, six months, and one day of active service. 

On 17 Apr 14, the Board considered and denied the applicant’s original request to upgrade his UOTHC discharge to honorable.  The applicant contended his discharge was too severe for the offense he was accused of committing, and he was railroaded due to the racism prevalent at the time.  The Board determined the applicant submitted insufficient evidence to demonstrate the existence of an error or injustice, the discharge was consistent with the requirements of the discharge regulation and within the commander’s discretionary authority, and due to a lack of post-service information, declined to consider clemency. For an accounting of the facts and circumstances surrounding the applicant’s request and the rationale of the earlier decision by the Board, see the Record of Proceedings (ROP) at Exhibit D.

On 22 May 16, through counsel, the applicant submitted a request for reconsideration, seeking either an honorable or general discharge, and requested a change to his narrative reason for discharge.  His counsel argues the applicant was brought in through Project 100,00 with significant intellectual limitations, performed to the best of his abilities, but was unjustly persecuted for his limitations.  He was treated as if he was unwilling to perform tasks that he was actually unable to perform, was harassed by his command, and was not eligible for an undesirable discharge.  A psychological examination of  the applicant noted that he had "little literary and reading ability" and "there is a definite probability that the patient was placed in a position of responsibility beyond his intellectual ability."  In sum, the evidence demonstrates the applicant was treated as if he was unwilling to perform tasks that he was actually unable to perform.  His membership in Project 100,000, difficulty reading, or even the determination that he was placed in a position beyond his capacity.  Significantly, the psychological evaluation that did contain some of this information was not included in separation materials. 

In support of his request for reconsideration, the applicant provides a copy of SF Form 502, Clinical Record, stating in part that the applicant was diagnosed with passive aggressive personality manifested by obstructionism, pouting, procrastinating, intentional inefficiency, and stubbornness, excitability and poor judgment from minor stress, strong and poorly controlled anxiety, manipulative behavior unmet dependency yearnings.  The psychiatric examiner also indicated it was his opinion there was a definite probability that the applicant was placed in a position of responsibility beyond his intellectual ability.  The applicant also provides information stating that in October 1966, DoD initiated Project 100, 000 to accept a portion of the men who were being disqualified for military service under previous mental standards and some men with physical defects which were correctable within a short period of time.  They were called New Standards Men. The purposes of the program were to broaden the opportunities for enlistment, thereby reducing draft calls, broaden the manpower pool subject to the draft; upgrade the qualifications of disadvantaged youth to prepare·them for more productive civilian lives.  DoD was convinced that the training and experience these men would receive would not only make them satisfactory servicemen, but would also prepare them £or more productive lives when they returned to civilian life. The applicant’s complete submission is at Exhibit E.

On 27 Apr 17, a request for post-service information was forwarded to the applicant for review and comment within 30 days.  As of this date, no response has been received by this office. (Exhibit F).

Office of the Secretary of Defense (Personnel and Readiness) OSD(P&R) guidance, dated 25 Aug 17, directs Boards for Correction of Military Records to apply liberal consideration when considering requests by veterans to modify their discharges due in whole or in part to mental health conditions.   

For more information, see the Statement of Facts in Exhibit D, and the advisories at Exhibits G, H, and I.

AIR FORCE EVALUATIONS:

AFPC/JA recommends denying the application.  The applicant’s counsel argues his case should be reconsidered because of new evidence related to the applicant’s “sub-standard aptitude test scores and enlistment as part of Project 100,000.”  While the information regarding Project 100,000 may not have been included in the original application, it is unclear how it pertains to the applicant’s contention.  The purpose of this program was to alter the standards for entry to the armed forces.  Those who were allowed to enlist under this program were not held to different disciplinary standards than other members once in, and were not granted special privileges once enlisted.  As such, it should not affect the original decision reached by the board.  We find no evidence in the applicant’s military records to indicate his discharge characterization was (or is) erroneous or unjust.  The complete advisory is at Exhibit G.

AFLOA/JAJM recommends denying the application.  The applicant contends, through counsel, he was intellectually unfit for military service and his discharge characterization was excessive in light of his educational abilities and harassment from his command.  A review of the non-judicial punishments (NJPs) imposed on the applicant reveals no legal error or injustice which would warrant removal of the NJPs from his record.  A commander considering a case for disposition under Article 15, UCMJ, exercises discretion in evaluating a case, determining if the accused committed an offense, and if so, what if any punishment is warranted and the nature and extent of the punishment.  The exercise of that discretion should generally not be reversed or otherwise changed on appeal by the Board absent good cause.  While the applicant now challenges the strength of evidence in his case, the opportunity to do so would have been when his NJPs were being processed with the advice of his counsel, not in this forum over four decades later.  Despite his allegations, the process was unjust, nothing in our review of the NJP actions, the vacation action that was rescinded, or the referral of charges indicates a legal error requiring correction by this Board, nor has applicant produced sufficient evidence to warrant correction.  Recommend denial of the applicant’s requested relief.  The complete advisory is at Exhibit H.

BCMR Psychiatrist recommends denying the application. The applicant’s misconduct problems became so disruptive, hindering his ability to be a contributing member of his unit, that his commander requested an inpatient evaluation and report of “sanity of (the applicant)”.  According to his records, the applicant was admitted to inpatient hospitalization at Sheppard AFB, TX on 8 Oct 71 for approximately one month.  A psychiatric evaluation dated 5 Nov 71, during his hospitalization reported the applicant had a poor attitude, was uncooperative and uninvolved in group therapy treatment, had to be confronted by staff and other group members about his attitudes and behaviors, was manipulative, and went AWOL for a brief period of time.  The psychiatric examiner acknowledged the applicant had intellectual difficulties reporting, “It appears that his main difficulty is that he has had little literary and reading ability but demonstrates that he is more than capable of good performance when he decides to become involved in a fairly structured and concrete activity.  His ability to manipulate others into gaining his ends is above average.”  Furthermore, the examiner asserted, “I have found the patient to be legally sane.  In my opinion, there is a definite probability that the patient was placed in a position of responsibility beyond his intellectual ability.  He is able to cope with tasks of a concrete and uncomplicated nature.”  Despite identifying that the applicant had intellectual impairments, the examiner noted, “he is more than capable of good performance,” and thus, negates the assertion his intellectual problems were the cause of his poor work performance, but is more aligned to his attitudes and behaviors.

The applicant was shown to struggle academically, with poor reading ability, but his behaviors were viewed to be deliberate as evidenced by his lack of cooperation and involvement on duty and during inpatient treatment.  He also went AWOL twice for 25 days.  Questions or concerns whether the applicant’s intellectual limitations caused his behavioral problems were clarified during his psychiatric evaluation when the mental health care examiner declared, “He appears to function well in all ego areas with the exception of poor judgment, difficulty in gaining insight into this difficulties.  However, he demonstrates no thought disorder and memory is well intact.”  Additionally, the examiner reported the applicant was competent to handle his own financial affairs, and thus, repudiates the applicant’s misconduct of failing to meet financial obligations and writing bad checks as causation due to intellectual limitations.  In conclusion, it appears the applicant’s behavioral and conduct problems were the impelling cause for his discharge and not due to an intellectual impairment.

The Psychological Advisor emphasizes with applicant’s desire for an upgrade in discharge characterization but based on a review of the applicant’s military and medical records, she recommends denial of his request for an upgrade due to insufficient evidence of error or injustice.  The complete advisory is at Exhibit I.

APPLICANT’S REVIEW OF AIR FORCE EVALUATIONS:

The Board sent copies of the Air Force evaluations to the applicant on 26 Apr 18 for comment (Exhibit J), and the applicant replied on 24 May 18.  In response, the applicant’s counsel contends the advisories should not be shared with panel members unless he is given the opportunity to questions the advisory writers on the record after reviewing their credentials.  Among other issues, he is concerned the advisory writers go beyond their purported expertise.  Further, the advisories do not address whether the applicant’s command should have been informed about his intellectual functioning, or whether the Air Force used false information to allow him to enlist.  In a second memo, counsel lays out his argument as to why, after being enlisted under the Project 100,000 Program with an IQ in the bottom 15 percent of the population and little literacy and reading ability.  The applicant was not treated justly when he received an UOTHC for not adequately performing duties beyond his capability and for unintentionally bouncing checks.  The applicant’s complete response is at Exhibit K.

THE BOARD CONCLUDES:

1.  The application was timely filed.

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

3.  After thoroughly reviewing all exhibits, it is the Board’s opinion the applicant is the victim of an injustice.  While the Board notes the comments of the Air Force offices of primary responsibility (OPRs) indicating relief should be denied, the Board believes that a measure of relief is warranted.  In this respect, the Board notes the applicant enlisted under Project 100,000, a program initiated by the Department of Defense in 1966 to annually induct and train recruits who normally would not qualify for military service.  The Board also notes that during the applicant’s short term of service, he was diagnosed with a mental health condition and the psychiatric examiner indicated that it was his opinion that there was a definite probability the applicant was placed in a position of responsibility beyond his intellectual capability.  Although the applicant's intellectual impairment does not excuse his misconduct, it is the Board’s opinion that the applicant’s mental health diagnoses coupled with being placed in a position of responsibility beyond his intellectual capability is sufficient to warrant liberal consideration as directed by OSD(P&R) policy dated 25 Aug 17.  Therefore, the Board believes the interest of justice can best be served by upgrading his discharge to general (under honorable conditions) and changing his narrative reason for separation to Secretarial Authority.   The Board considered upgrading the applicant’s discharge to honorable; however, the Board does not believe that an upgrade to fully honorable is warranted.  Accordingly, the Board recommends his records be corrected to the extent indicated below. 

4.  The applicant’s case is adequately documented and it has not been shown that a personal appearance with or without counsel will materially add to the Board’s understanding of the issues involved.

THE BOARD RECOMMENDS:

The pertinent military records of the Department of the Air Force relating to the APPLICANT be corrected to show that on 10 January 1972, he received a general (under honorable conditions) discharge with a narrative reason for separation of “Secretarial Authority,” and a separation code of “JFF.”   

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-2013-02823-2 in Executive Session on 27 Jun 18: 

Chair
Member
Member

All members voted to correct the record.  The panel considered the following:

Exhibit D:	 Original Record of Proceedings (ROP), dated 21 May 14.  
Exhibit E:  RECON Application, DD Form 149, dated 22 May 16, w/atchs.
Exhibit F:  Letter, Clemency, dated 27 Apr 17, w/atchs. 
Exhibit G:	Advisory opinion, AFPC/JA, dated 5 May 17.
Exhibit H: Advisory opinion, AFLOA/JAJM, dated 25 May 17.  
Exhibit I:  Advisory opinion, BCMR Psychological Advisor, dated 26 Mar 18. 
Exhibit J:	Notification of Advisory, SAF/MRBC to applicant, dated 26 Apr 18.
Exhibit K:	Applicant’s response, dated 24 May 18, w/atchs. 

Taken together with all Exhibits, this document constitutes the true and complete Record of Proceedings for Docket Number BC-2013-02823-2 required by AFI 36-2603, paragraph 4.11.9.
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