RECORD OF PROCEEDINGS
AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS

IN THE MATTER OF: 			DOCKET NUMBER: BC-2015-04501 

  						COUNSEL:  NO

						HEARING DESIRED:  NO

APPLICANT REQUESTS THAT:

1.  His Under Honorable Conditions (General) discharge be upgraded to Honorable;
2.  His narrative reason for separation be changed to medical;
3.  His re-entry code be changed to an applicable code for a Honorable discharge; and,
4.  His discharge rank be changed to Senior Airman, the highest rank he achieve in the Air Force.  

APPLICANT CONTENDS THAT:

His discharge was inequitable and improper as the Air Force failed to rehabilitate him to the point where his performance once again exceeded Air Force standards as evident in his past performance reports.  Furthermore, had the Air Force provided thorough mental health evaluations and treatment recommendations as required by Air Force Instructions, the Air Force would have discovered he was dealing with Post-Traumatic Stress Disorder (PTSD) symptoms.  He has since been diagnosed with service-connected PTSD since his discharge.  

The applicant’s complete submission, with attachments, is at Exhibit A.

STATEMENT OF FACTS:

The applicant initially entered the Regular Air Force on 22 Oct 07.

On 23 Feb 11, the applicant was notified of his commander’s intent to recommend he be discharged from the Air Force under the provisions of AFPD 36-32, Air Force Military Training and AFI 36-3208, Administrative Separation of Airmen, paragraph 5.50.2, A Pattern of Misconduct, specifically, Conduct Prejudicial to Good Order and Discipline for the following reasons:

1.  On or about 1 Jan 09 and on or about 31 Mar 09, the applicant wrongfully had sexual intercourse with a woman, not his wife, in violation of Article 134, Uniform Code of Military Justice (UCMJ).  For this misconduct, he received non-judicial punishment via Article 15 of the UCMJ.  His punishment consisted of a reduction to the grade of airman first class (E-3), forfeiture of $250 pay per month for 2 months, and 20 days extra duty.  The reduction was suspended until 22 Feb 11, at which time it was to be remitted without further action, unless sooner vacated.  

2.  On or about 4 Dec 10, the applicant violated Article 128, UCMJ, when he unlawfully shoved an airman in the chest with his hand, punched her in the face, and unlawfully threw her to the ground by pulling on her hair.  Also, he violated Article 134, UCMJ, by being disorderly, which conduct was of a nature to bring discredit upon the armed forces.  For this misconduct, he received non-judicial punishment via Article 15 of the UCMJ.  His punishment consisted of reduction to the grade of airman (E-2) with a reduction below E-3 suspended until 21 Jun 11 and forfeiture of $500 pay per month for two months. 

3.  On or about 19 Jan 11, the applicant violated Article 86, UCMJ, when he without authority, failed to go at the time prescribed time to his appointed place of duty. For this misconduct, the suspension of his reduction in rank to E-2 was vacated on 3 Feb 11.  

On 4 Mar 11, the Staff Judge Advocate found the separation action legally sufficient and recommended to the discharge authority that the applicant be discharged and issued a general service characterization without probation and rehabilitation. 

On 8 Mar 11, the discharge authority approved the applicant's discharge.

On 22 Mar 11, the applicant was furnished an Under Honorable Conditions (General) discharge as an Airman (E-2), and was credited with three years, five months, and one day of active service.  

On 16 Aug 12, the Air Force Discharge Review Board unanimously denied the applicant’s request to upgrade his discharge, change the reason and authority for discharge, and change the re-enlistment code, concluding the discharge was consistent with the procedural and substantive requirement of the discharge regulation and within the discretion of the discharge authority.  

The remaining relevant facts pertaining to this application are contained in the memoranda prepared by the Air Force offices of primary responsibility, which are attached at Exhibits C - H.  

AIR FORCE EVALUATION:

AFPC/DP3ST (Re-enlistments) recommends denial, indicating there is no evidence of an error or an injustice.  Applicant received a RE code of 2B (separated with a general or under-other-than-honorable-conditions discharge) based on his involuntary general discharge and is correct.  However, if the Board upgrades applicant’s character of service to honorable, the Board should also direct his RE code be changed to 2C.  

A complete copy of the AFPC/DPDP3ST evaluation is at Exhibit C.

SAF/MRBP recommends denial, indicating there is no evidence of an error or injustice.  After review of the applicant’s records, supporting documents, and his previous Discharge Review Board (DRB) case, FD-2011-00329, the applicant has presented new information in support of his application to the AFBCMR.  The new information consists of a one-page insert from the Department of Veterans Affairs regarding the reason for decision on PTSD; and copies of the applicant’s 2009 and 2010 Enlisted Performance Reports.  The new information presented by the applicant does not provide sufficient documentation to support that an inequity or an impropriety took place at the time of the discharge.  However, the new evidence presented by the applicant was not considered by the DRB; therefore, the AFBCMR should seek additional review of the applicant’s contentions by a clinical psychologist, psychiatrist, or a physician with training on mental health disorders.

A complete copy of the SAF/MRBP evaluation is at Exhibit D.

AFPC/Enlisted Promotions does not make a recommendation on whether or not there is evidence of an error or injustice as they are not the OPR for non-judicial punishment (NJP) actions and recommend this case be referred for a legal advisory.  

A complete copy of the AFPC/Enlisted Promotions evaluation is at Exhibit E.

AFPC/JA recommends denial, indicating there is no evidence of an error or injustice.  His commission of multiple violations of the Uniform Code of Military Justice, resulting in two Article 15s and one vacation of a suspended punishment, are sufficient to form the basis of an administrative discharge.  A general service characterization is authorized and appropriate for an individual being discharged on this basis.  Furthermore, it is within the commander’s discretion to recommend and approve probation and rehabilitation. In this case, even if the applicant had demonstrated a potential to serve satisfactorily, he had shown that he did not have the capacity to be rehabilitated and, considering his assault and battery of two fellow Airmen, it is logical that his retention would not be consistent with good order and discipline in the Air Force.  The applicant’s argument that service-connected PTSD is relevant, but unfortunately, the diagnosis was made after his separation from the military.  Because this case file does not contain a medical opinion on documentation of the applicant’s medical condition or any medical opinion on its impact on his pre-discharge behavior, the AFPC/JA advisory does not address whether PTSD should have been diagnosed, treated and considered in connection with his misconduct, or whether he should have received a medical separation.  However, the burden of demonstrating error or injustice rests with the applicant.

A complete copy of the AFPC/JA evaluation is at Exhibit F.

The AFBCMR Psychiatric Consultant recommends denial, indicating there is no evidence of an error or injustice that would warrant the desired change to his record.  The applicant is requesting a change in his narrative reason suggesting that his misconduct was the result of a medical or psychiatric condition; however, what appears to be the case is the applicant’s judgment is a problem as evident by his misconduct, liberal interpretation of his excused absence, poor impulse control, and inability to manage stress.  However, he clearly was under a great deal of stress, was sent to the hospital due to his suicide gesture, and his doctor’s did give him a diagnosis of Adjustment Disorder with Anxiety and Depressed mood.  The lack of an Axis I diagnosis indicates that the applicant did not have a classifiable mental illness diagnosis at the time.  This diagnosis was made at that time but not used again in the later period of his military career.  Even if he been given this as a discharge diagnosis it would have been non-compensable. 

Furthermore, the applicant reported a possible traumatic brain injury (TBI) from 2005, which was prior to, and not reported before, entering the military.  Although not clearly stated, it appears that his doctor might have connected his diagnosis of Narcolepsy as a consequence to his TBI.  If this was the case, then the applicant should have reported his injury and symptoms upon entering military service (possible fraudulent enlistment).  Narcolepsy, although rare, can occur as a result of TBI and will appear shortly after the insult or within 18 months of the injury.  Because his injury was in 2005, he should have been symptomatic before entering the military in 2007.  This diagnosis, however, is clouded by the fact that the applicant indicated, in a 2012 interview at the Department of Veterans Affairs, that he was drinking daily and had been for the previous three years.  Consequently, when he was evaluated in 2011 for Narcolepsy, he was drinking, and drinking would have invalidated the diagnosis.  In psychiatry, no diagnosis can be made in the presence of alcohol abuse.  

With regard to his PTSD contention, in his Post-Deployment evaluation, the applicant was very clear about the fact that he was not in combat and did not see anything that would have traumatized him and was not having flashbacks or other PTSD symptoms.  This diagnosis was also reviewed by several providers at the DVA in several of the notes and they confirmed that this condition was not evident.

A complete copy of the AFBCMR Psychiatric Consultant evaluation is at Exhibit G.

After review of the AFBCMR Psychiatric Consultant’s evaluation, AFPC/JA did not change the recommendation provided in their original advisory.  

A complete copy of the AFPC/JA supplemental evaluation is at Exhibit H.

APPLICANT'S REVIEW OF AIR FORCE EVALUATION:

Copies of the Air Force evaluations were forwarded to the applicant on 22 Feb 17 for review and comment within 30 days (Exhibit I).  As of this date, no response has been received by this office.

THE BOARD CONCLUDES THAT:

1.  The applicant has exhausted all remedies provided by existing law or regulations.

2.  The application was timely filed.

3.  Insufficient relevant evidence has been presented to demonstrate the existence of an error or injustice.  We took notice of the applicant’s complete submission in judging the merits of the case; however, we agree with the opinions and recommendations of the Air Force offices of primary responsibility and adopt their rationale as the basis for our conclusion the applicant has not been the victim of an error or injustice.  Therefore, in the absence of evidence to the contrary, we find no basis to recommend granting the requested relief.

THE BOARD DETERMINES THAT:

The applicant be notified the evidence presented did not demonstrate the existence of material error or injustice; the application was denied without a personal appearance; and the application will only be reconsidered upon the submission of newly discovered relevant evidence not considered with this application.

The following members of the Board considered AFBCMR Docket Number BC-2015-04501 in Executive Session on 20 Jun 17 under the provisions of AFI 36-2603:

	Panel Chair
	Member
	Member

The following documentary evidence was considered:

	Exhibit A.  DD Form 149, dated 4 Oct 15, w/atchs.
	Exhibit B.  Applicant's Master Personnel Records.
	Exhibit C.  Memorandum, AFPC/DP3ST, dated 8 Jun 16.
	Exhibit D.  Memorandum, SAF/MRBP, received 22 May 16.
	Exhibit E.  Memorandum, AFPC/Enlisted Promotions, dated 
  24 Jun 16.
	Exhibit F.  Memorandum, AFPC/JA, dated 30 Jun 16.
	Exhibit G.  Memorandum, Psychiatric Consultant, dated
			  9 Feb 17.
	Exhibit H.  Memorandum, AFPC/JA, dated 17 Feb 17.
Exhibit I.  Letter, AFBCMR, dated 22 Feb 17.

Pursuant to paragraph 1 of AFI 36-2603 (Title 32 Code of Federal Regulations, Part 865.1), it is certified that a quorum was present at the Board's review and deliberations, and that the foregoing is a true and complete record of the Board's proceedings in the above titled matter.