RECORD OF PROCEEDINGS
AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS

IN THE MATTER OF:			DOCKET NUMBER:  BC-2015-04990

XXXXXXXXXXXXXXX			COUNSEL:  NONE

						HEARING DESIRED:  NOT INDICATED

APPLICANT REQUESTS THAT:

1.  His general (under honorable conditions) discharge be upgraded to honorable.

2.  He be restored to the grade of sergeant (E-4).

APPLICANT CONTENDS THAT:

He suffers from Post-Traumatic Stress Disorder (PTSD) because of the horrific incident he witnessed in 1972, while he was assigned overseas.  He was also diagnosed with depression and schizophrenia.

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

STATEMENT OF FACTS:

The applicant initially entered the Regular Air Force on 12 May 1970.

On 1 June 1972, the applicant received nonjudicial punishment (NJP) pursuant to Article 15, Uniform Code of Military Justice (UCMJ), for being disorderly.  His punishment included a $50 fine (suspended until 3 September 1972) and restriction to the base for 14 days.

On 22 February 1973 the applicant received NJP for being disorderly at the dining hall.  His punishment included a reduction from the grade of sergeant to airman first class (E-3) [suspended until 21 September 1973].

On 6 August 1973, the applicant’s suspended reduction to the grade of airman first class was vacated due to his being absent without leave (AWOL) from on or about 22 July 1973 to on or about 24 July 1973.  His new date of rank and effective date to the grade of airman first class was 21 August 1973.

On 4 October 1973, the applicant’s commander notified him that he was recommending he be discharged under the provisions of AFM 39-12, Separation for Unsuitability, Misconduct, Personal Abuse of Drugs, Resignation or Request for Discharge for the Good of the Service, for apathy; defective attitude; and inability to expend effort constructively.  The specific reasons for the discharge were two actions under Article 15 of the UCMJ, one vacation of a suspended reduction for being AWOL for two days, and numerous counselings for failure to repair, uniform violations.

On 4 October 1973, the applicant acknowledged receipt of the discharge notification and on 12 October 1973, he offered a statement for the discharge authority’s consideration.

On 24 October 1973, the Staff Judge Advocate found the discharge legally sufficient except for the allegations of apathy and inability to expend effort constructively.

On 26 October 1973, the applicant was discharged in the grade of airman first class with an “Under Honorable Conditions” characterization.  He was credited with 3 years, 5 months, and 13 days of active service.

On 10 May 1977, the applicant submitted a request to the Air Force Discharge Review Board (AFDRB) for an upgrade to his discharge so he could reenter military service.

On 13 July 1977, the AFDRB concluded that the discharge was equitable and proper and denied the applicant’s appeal.

On 3 September 2014, 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 August 2017, the Under Secretary of Defense 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.

The remaining relevant facts pertaining to this application are described in the memoranda prepared by the Air Force offices of primary responsibility (OPR), which are included at Exhibits C - F.

AIR FORCE EVALUATION:

AFPC/DP3SP does not make a recommendation regarding the applicant’s request to restore his grade; however, should the Board elect to restore the applicant’s grade, the Article 15 that resulted in the loss of grade must be voided.

A complete copy of the AFPC/DP3SP evaluation is at Exhibit C.

AFPC/DP2STM recommends denial of the applicant’s request for an honorable discharge indicating there is no evidence of an error or injustice.  Based on the documentation on file in the master personnel records, the discharge to include the applicant’s character of service, separation code and narrative reason for separation was consistent with the procedural and substantive requirements of the discharge manual and was within the discretion of the discharge authority.

A complete copy of the AFPC/DP2STM evaluation is at Exhibit D.

AFPC/JA recommends denial of the applicant’s request to upgrade his discharge or restore his rank.  Based on the documentation on file in the master personnel records, the discharge, character of service, separation code and narrative reason for separation were all consistent with the procedural and substantive requirements of the discharge manual and were within the discretion of the discharge authority.  A memorandum from the Secretary of Defense dated 3 September 2014, provides guidance to Military Boards for Correction of Military Records when veterans claim PTSD.  The memorandum references veterans serving during the Vietnam era when PTSD was not normally recognized, thereby creating difficulties establishing PTSD as existing during service, and mitigating misconduct serving as a nexus to misconduct.  In particular, the memorandum states, that special consideration will be given to Department of Veteran Affairs (DVA) determinations which document PTSD or PTSD-related conditions connected to military service and conditions documented in the records that can reasonably be determined to have existed at the time of discharge will be considered to have existed at the time of discharge.  Although none of the applicant’s service records reference or suggest he experienced mental hardship on duty, witnessed a traumatic event, or had any symptoms associated with PTSD, deference is given to the applicant's DVA records.  Therefore, it is presumed he did in fact suffer from undiagnosed PTSD or PTSD-related conditions while serving in the military.  The Secretary of Defense memorandum also states, that time limits to reconsider decisions will be liberally waived for applications covered by this guidance.  It follows that the applicant's request, submitted about four decades after the discovery of the alleged error or injustice, should not be summarily dismissed for missing the three-year deadline.

The applicant's repeated failures to report to duty can be attributed to a feeling of apathy and defective attitude which are consistent with the symptoms listed in the DVA records (wherein he describes feeling sluggish and depressed).  Since the DVA records also reveal a diagnosis and treatment for schizophrenia, it is uncertain to what degree (if any) his current symptoms are attributable to this other condition.  While DVA records reveal the applicant currently uses alcohol to manage his symptoms, the service records do not reveal that the applicant was drinking/intoxicated in connection with his misconduct as way to cope with the traumatic event. Carefully weighing evidence of mitigation against the severity (frequency and span) of the misconduct forming a basis for discharge in this case, the applicant's mental hardship cannot be reasonably established as justifying or mitigating his misconduct to the point that his discharge characterization or reduction in rank should be changed.

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

The BCMR Psychiatric Advisor recommends granting the applicant’s request to upgrade his discharge.  PTSD can sometimes manifest as defiance, misconduct, or substance abuse.  The nexus between the behavior and the psychopathology of PTSD can be more easily seen upon re-evaluation.  This explanation does not excuse all behavior or misconduct, but when the entire record is reviewed in the context of an experienced trauma the negative behavior can be explained.  The applicant’s parents separated when he was a young child.  Following their divorce, the applicant’s mother chose relationships with men who abused her and her children [including the applicant].  He spent much of his childhood in foster care where he also suffered physical, emotional and sexual abuse.  The applicant joined the Air Force following his release from foster care.  During his military service, the applicant recounted a horrific event that occurred in May 1972, while he was assigned in Korea.  He witnessed a convoy of trucks run over a woman and her children.  He recalled the victims’ screams and the aftermath of the carnage.  In reviewing the applicant’s history, there is no evidence of misconduct prior to the traumatic event the applicant witnessed.  His first misbehavior occurred in October 1972, then in 1973, numerous other instances of minor misconduct occurred, which resulted in his “under honorable conditions” discharge.

In September 2009, the applicant was hospitalized in a psychiatric facility where he reported he was the victim of physical, emotional and sexual abuse during his childhood.  He was subsequently diagnosed with schizophrenia, PTSD and depression.  In 2015 the applicant was seen at the DVA for help with his alcohol abuse and revealed he suffered from survivor’s guilt because he could not save a mother and her children from being killed in 1972.  Schizophrenia most often develops between the ages of 20 and 30 years; therefore, the applicant was already developing schizophrenia during his military service.  However, it is clear the misconduct that precipitated the applicant’s discharge was not a consequence of his schizophrenia, but likely occurred after the applicant witnessed the traumatic event in 1972.  The impact of this event also likely brought forth memories of the extensive abuse he experienced as a child.

A complete copy of the BCMR Psychiatric Advisor’s evaluation is at Exhibit F.

APPLICANT'S REVIEW OF AIR FORCE EVALUATION:

Copies of the Air Force evaluations were forwarded to the applicant on 21 July 2017, for review and comment within 30 days (Exhibit G).  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 not timely filed; however, it is in the interest of justice to excuse the failure to timely file.

3.  Insufficient relevant evidence has been presented to demonstrate the existence of an error or injustice to warrant restoring the applicant’s rank to sergeant.  We took notice of the applicant's complete submission in judging the merits of the case; however, we do not believe the applicant’s reduction in rank should be changed.  We agree with the opinion and recommendation of AFPC/JA and adopt the rationale expressed as the basis for our conclusion the applicant has not been the victim of an error or injustice as regards his rank.  Therefore, we find no basis to recommend granting this portion of the applicant’s request.

4.  Notwithstanding the above, sufficient relevant evidence has been presented to demonstrate the existence of an error or injustice to warrant upgrading the applicant’s discharge.  The Board majority took notice of the applicant's complete submission in judging the merits of the case and agree with the opinion and recommendation of the BCMR Psychiatric Advisor and adopt the rationale expressed as the basis for the conclusion the applicant has been the victim of an error or injustice.  Although the applicant did not specifically request it, in the interest of justice, the Board majority also recommends changing the applicant’s separation code to reflect “JFF” and the corresponding narrative reason for separation to reflect “Secretarial Authority.”  Therefore, the Board majority recommends the applicant's records be corrected as indicated below.

5.  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 our understanding of the issues involved.  Therefore, the request for a hearing is not favorably considered.

THE BOARD RECOMMENDS THAT:

The pertinent military records of the Department of the Air Force relating to APPLICANT be corrected to show that on 26 October 1973, he was honorably discharged with a narrative reason for separation of “Secretarial Authority,” a separation code of “JFF,” and that he be furnished an Honorable Discharge certificate.

The following members of the Board considered AFBCMR Docket Number BC-2015-04990 in Executive Session on 19 September 2017, under the provisions of AFI 36-2603:

, Panel Chair
, Member
, Member

By a majority vote, the Board voted to partially grant the applicant’s requests.  XXXXXX voted to deny but did not submit a Minority Report.  The following documentary evidence was considered:

Exhibit A.  DD Form 149, dated 13 November 2015, w/atchs.
Exhibit B.  Applicant's Master Personnel Records.
Exhibit C.  Memorandum, AFPC/DP3SP, dated 18 March 2016.
Exhibit D.  Memorandum, AFPC/DP2STM, dated 19 April 2016.
Exhibit E.  Memorandum, AFPC/JA, dated 29 April 2016.
Exhibit F.  Memorandum, BCMR Psychiatric Consultant, dated 
  5 June 2017.
Exhibit G.  Letter, AFBCMR, dated 21 July 2017.

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.