RECORD OF PROCEEDINGS
AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS

IN THE MATTER OF: 			DOCKET NUMBER:  BC-2016-00396

						COUNSEL:  NONE

						HEARING DESIRED:  NO 

APPLICANT REQUESTS THAT:

His General (Under Honorable Conditions) discharge be upgraded to Honorable.

APPLICANT CONTENDS THAT:

He served honorable for three years and was sexually assaulted shortly after reenlistment.  This resulted in Post-Traumatic Stress Disorder (PTSD) and caused disciplinary problems that led to his General discharge.  He is now 100 percent disabled for service-connected PTSD due to the assault that caused the discharge.

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

STATEMENT OF FACTS:

On 30 Dec 86, the applicant initially entered the Regular Air Force.

On 21 Sep 87, the applicant was issued a Letter of Counseling (LOC) for being late for duty on two separate occasions.

On 8 Dec 87, the applicant was issued an LOC for failure to attend Commander’s Call.

On 3 Jun 88, the applicant was issued an LOC for being late for duty.

On 12 Jul 88, the applicant was issued a Letter of Reprimand (LOR) for failure to return to duty, failure to provide a point of contact while on standby, failure to report to the noncommissioned officer in charge (NCOIC), and failure to update locator information.

On 15 Sep 88, the applicant was issued an LOC for being unavailable for duty while on standby.

On 31 Oct 88, the applicant was issued an LOR for failure to report and dereliction of duty.

On 2 May 90, the applicant was issued an LOC for being late for duty on two separate occasions.

On 10 May 90, the applicant was issued an LOC for being late for duty.

On 30 May 90, the applicant was issued an LOC for missing a mandatory military formation.

On 18 Jun 90, the applicant was issued an LOR for failure to follow proper procedures, being late for duty, and failure to meet established suspenses.  An Unfavorable Information File (UIF) was established.  The LOR was filed in the UIF and the applicant was placed on the Control Roster.

On 25 Oct 90, the applicant was issued an LOR for failure to perform assigned duties, failure to sign the Master Station Log, and failure to follow written and verbal orders.  The LOR was filed in the previously established UIF and the applicant placed on the Control Roster.

On 12 Nov 90, the applicant was issued an LOC for being late for duty.

On 20 Nov 90, the applicant was issued an LOR for failure to follow a written order.  The LOR was filed in the previously established UIF.

On 21 Feb 91, the applicant was issued an LOR for failure to go to his appointed place of duty, on two separate occasions, and failure to make required payment on a debt.  The LOR was filed in the previously established UIF.

On 25 Feb 91, the applicant was given non-judicial punishment (NJP) under Article 15 of the Uniform Code of Military Justice (UCMJ) for, without authority, failure to go at the time prescribed, to his appointed place of duty, in violation of Article 86 of the UCMJ and failure to obey a lawful order, in violation of Article 92 of the UCMJ.  He was reduced to the grade of Airman First Class (suspended until 24 Aug 91, to be remitted without further action unless sooner vacated), forfeited $100 pay and given 30 days extra duty.

On 9 Apr 91, the applicant was notified of the commander’s recommendation for discharge for Misconduct – Minor Disciplinary Infractions.

On 17 Apr 91, the applicant was furnished an Under Honorable Conditions (General) discharge, and credited with 4 years, 3 months, and 18 days active service.

On 31 Mar 16, a request for post-service information was forwarded to the applicant for comment (Exhibit C).  As of this date, no response has been received by this office.

The remaining relevant facts pertaining to this application are contained in the memoranda prepared by the Air Force offices of primary responsibility (OPR), which are attached at Exhibits D and E.

AIR FORCE EVALUATION:

BCMR Psychiatric Advisor recommends denial, indicating there is no evidence of error or injustice.

On 15 Apr 91, legal review of the recommendation for separation notes the applicant submitted to a medical evaluation where he was found to be medically qualified for worldwide duty.

On 19 Mar 14, the applicant first made contact with the Department of Veterans Affairs (DVA), where he reported selling the house his family was living in leaving them homeless.  He claimed two children.  During the next visit, the applicant reported he lived with his wife and two stepchildren.  He admitted to regular crack cocaine usage over the previous 10 years.  He noted a low mood for 10 years, with some sleep disturbance, but denied anhedonia, appetite, concentration, or energy problems.

The applicant noted he attempted suicide while in the military, when he learned he was not going to get an Honorable discharge, by taking several Advil and drinking a large quantity of alcohol.  He was not hospitalized and did not get psychiatric treatment.  The applicant reported he drank during 1986 through 1991 and started using drugs a few years later, and his drug use was a major problem which was affecting his career and finances.  During his next visit, the applicant reported he lived with his girlfriend of 10 years and 2 children.

The applicant first reported his Military Sexual Trauma (MST) on 12 Mar 05 (sic).  He noted he was living with his girlfriend, and after a fight, went to the Noncommissioned Officers’ Club.  Afterward, he went to a party with two men, and woke the next day with his trousers off and semen on his legs.  The other men were still in the room sleeping.  He also noted he had only just married, but he and his wife had been together for eight years.  In later sessions, the applicant reported intrusive thoughts about suicide and nightmares about family finances.

During subsequent visits, the applicant reported an extensive history of cocaine and marijuana use, and arrest/incarceration for drug possession.  He also reported suicidal thoughts at times, particularly while in the subway, with thoughts of jumping in front of a train.  The applicant stated he was not ready for individual sessions to deal with his PTSD, but would prefer to stay in group sessions.

In the applicant’s Compensation and Pension (C&P) Evaluation, he notes coming from a broken family, but denies child abuse.  He reported he and his wife were fostering their boys, who are four months old.  The applicant stated he worked in Communications but was never deployed.  He also reported his MST, stating he and his girlfriend, at the time, had a disagreement so he went out on his own, where he met two men and went with them.  He drank, and when he awoke, one of the men was on top of him.  He left and never reported the incident.  He then claimed the incident occurred in Feb 90.  The applicant reported going to rehabilitation twice, once was court ordered.  He was given a diagnosis of alcohol use disorder, cocaine use disorder, and substance induced mood disorder.

During a follow up visit in 2015, the applicant claimed depression, anxiety, anger/irritability, and insomnia.  He claimed nightmares related to his MST, and reported he avoided public restrooms that are not single use and did not like people coming up behind him.  He also noted hypervigilance and jumpiness.  During this interview, he reported he had a previous suicide attempt while in the military by taking an overdose of Vicodin.

The newest guidance on PTSD is the Secretary of Defense memorandum, dated 3 Sep 14, directing a more liberal consideration be given to veterans claiming PTSD.  It applied to this case because of the Military Sexual Trauma (MST) claimed by the applicant.  This policy asserts the evaluator must continue to assess the appropriateness for an upgrade, but should liberally consider the applicant’s statements, the statements of persons associated with the applicant, and all mitigating factors in the misconduct that caused, in particular, under other than honorable conditions characterization of service.  The evaluator should be cautious when considering egregious misconduct and premeditated misconduct.

That being said, this applicant’s credibility has to be considered.  The first question on that issue is the applicant states he had three years of very honorable performance prior to the event and then it all changed after the abuse.  What is evident is in reviewing the record of misconduct and performance, he had at least as many events of misconduct in 1988 as he did after the event.  It was only in 1986 while he was in training and in 1989 that there was no documented misconduct.  The applicant also denied any memory of the event until 2015 when he had his C&P, where he reported intrusive memories and nightmares of the event.

The applicant reported to the DVA it was shortly after his reenlistment in Feb 90 that he was assaulted.  He reported he did not remember the events of the assault due his state of inebriation.   He repeated this story on several occasions to his therapist and in his treatment sessions at the DVA.  However, the recitation of the events changed.  Initially, the story was when he awoke in the morning, after picking up two men the night before, he was naked with semen on his leg and the other men were asleep in the same room.  He reported that he dressed and left without saying anything to the men.  The applicant noted that he did not report the incident.  In the later version of the story, he said when he awoke, he found one man on top of him.  Again he reported he did not speak to the men, just left and did not report the incident.  The applicant also noted he did not seek treatment or discuss these events until 2014, when he came into the DVA asking for help because he was about to be homeless.

Of concern is that the only information available to the evaluators was the applicant’s recitation of his history.  His medical records, while in service, were not available for review.  The applicant asserts after his reported MST, he received an Article 15 for failing to go to work and was discharged.

At this point, the applicant is claiming the MST event was present at the time.  It appears as likely his excessive use of alcohol, which he is not admitting to, could have produced the same outcome. The same type of behavior was evident throughout his career as the behavior which finally resulted in his discharge.  His recitation of the MST event changed over time.  He did not remember what happened, by his report.  When he showed up at the DVA, he did not report symptoms that are fully consistent with PTSD.  That is not to say he did not experience trauma, but a PTSD diagnosis must meet the complete set of symptoms for this diagnosis to be made.  He was having nightmares but they were about his potential homelessness.  His only intrusive thoughts were limited to when he was in subway stations and were related to his attempted suicide, which was in response to his notice of discharge.  Even his recitation of his attempted suicide changed over time from taking Advil and excessive alcohol to taking an overdose of Vicodin.  He did claim distress with people walking up behind him and touching him, but not about being in large crowds.  He does not demonstrate alienation.  In fact, he talks about really enjoying his children and spending time with his family and caring for the children.  There is no evidence of a startle response or hypervigilance or concentration problems in his initial interview.  He was not reporting being detached from himself.  He does use drugs, but everyone that uses drugs does not necessarily have PTSD.  That is not to say the stressful event did not occur, but may not have been the cause of his discharge.  It is also very reasonable to imagine, over time, stressful events may very well have produced a traumatic disorder for which he self-medicated with drugs over the last 20 years.  Therefore, it is reasonable to say the DVA was accurate in granting his 100% disability rating for what they observed at the time of their evaluation.  Albeit, there is still insufficient evidence to substantiate the presence of the full blown picture of PTSD at the time of discharge.

Readdressing the applicant’s implicit desire for a medical retirement, the military Disability Evaluation System (DES), established to maintain a fit and vital fighting force, can by law, under Title 10, United States Code (U.S.C.), only offer compensation for those service-incurred diseases or injuries which specifically rendered a member unfit for continued active service and were the cause for career termination; and then only for the degree of impairment present at the “snap-shot”  time of separation and not based on post-service progression of disease or injury.

In summary, the applicant’s performance would not have supported an honorable discharge and there was insufficient evidence to support a PTSD diagnosis or any unfitting stress disorder as a mitigating factor for his minor infractions at the time of discharge.

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

AFLOA/JAJM recommends denial, indicating there is no evidence of error or injustice.

On 21 Feb 91, the applicant was notified of his commander’s intent to impose NJP for one charge and specification of failing to go to his appointed place of duty in violation of Article 86, UCMJ, and failing to obey a lawful order in violation of Article 92, UCMJ.  The applicant accepted NJP but, after consulting with counsel, did not submit any written or oral matters in his defense.  The commander upheld the NJP, and imposed punishment of a reduction in grade to E-3 (from E-4), forfeiture of $100 pay, and 30 days extra duty; however, the reduction in grade was suspended for six months, at which point it would have been remitted without further action.  The applicant did not appeal.  Independent legal reviews conducted on 26 Feb 91 and 15 May 91 found the NJP legally sufficient.

Shortly after receiving this NJP, the applicant was notified of his commander’s intent to administratively discharge him from the Air Force for a pattern of minor disciplinary infractions.  The applicant was ultimately discharged from the Air Force on 17 Apr 91.

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 extent of the punishment.  In accepting NJP, the applicant accepted a forum where his commander assesses the evidence and makes determinations as to his guilt and appropriate punishment.  The exercise of that discretion should generally not be reversed or otherwise changed on appeal by the Board absent good cause.  Before deciding to impose NJP, the commander would have been aware that certain non-punitive disciplinary measures, including counseling and reprimands, were available.  The commander, at the time of the NJP, had the best opportunity to evaluate the evidence in the case and to determine what action would best maintain good order and discipline.  The punishment decision here was well within the limits of his commander’s authority and discretion.  Whether the applicant raised PTSD as an issue prior to imposition of NJP is unclear; nothing this office reviewed showed the applicant disclosed the assault or PTSD during his time in military service.

The applicant does not assert any legal error in the processing of the NJP he received, but instead asserts his misconduct was a result of being sexually assaulted after his first reenlistment, an event that led to his disciplinary problems and PTSD.  While recent Department of Defense guidance on PTSD encourages a fresh look at adverse administrative discharge actions when a member has previously unrecognized PTSD, it does not create a basis for overturning disciplinary actions whereby those involved had no knowledge or awareness of the issue when the matters were being adjudicated.  The applicant’s commander in his NJP had the opportunity to assess the truth, relevancy, and weight of any information the applicant submitted, but he did not submit any written matters indicating he had been a victim of a crime or had PTSD.

The applicant requests clemency from the Board for Correction of Military Records (BCMR) by upgrading his discharge characterization.  He details in his petition for clemency his military service, the incidents preceding his misconduct, and submits paperwork from the DVA regarding his disability rating.

There is no error or injustice that tends to undermine the NJP actions he received.  Whether clemency is warranted, due to the applicant’s PTSD or processing of his administrative discharge, is a matter within the discretion of the BCMR.

A complete copy of the AFLOA/JAJM evaluation is at Exhibit E.

APPLICANT'S REVIEW OF AIR FORCE EVALUATION:

Copies of the Air Force evaluations were forwarded to the applicant on 18 Jan 18 for review and comment within 30 days (Exhibit F).  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.  We took notice of the applicant’s complete submission in judging the merits of the case; however, we find no evidence of an error or injustice that occurred in the discharge processing.  Based on the available evidence of record, it appears the discharge was consistent with the substantive requirements of the discharge regulation and within the commander’s discretionary authority.  The applicant has provided no evidence which would lead us to believe the characterization of the service was contrary to the provisions of the governing regulation, unduly harsh, or disproportionate to the offenses committed.  In the interest of justice, we considered upgrading the discharge based on clemency; however, there was no evidence presented to warrant recommending granting relief on that basis.  Therefore, we find no basis to recommend granting the relief sought by the applicant.

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-2016-00396 in Executive Session on 13 Mar 18 under the provisions of AFI 36-2603:

	, Panel Chair
	, Member
	, Member

The following documentary evidence pertaining to AFBCMR Docket Number BC-2016-00396 was considered:

	Exhibit A.  DD Form 149, dated 10 Jan 16, w/atchs.
	Exhibit B.  Excerpt from Personnel Records.
	Exhibit C.  Letter, AFBCMR Clemency, dated 31 Mar 16, w/atch.
	Exhibit D.  Memorandum, BCMR Psychiatric Advisor, 
  dated 17 Nov 17.
	Exhibit E.  Memorandum, AFLOA/JAJM, dated 11 Jan 18.
	Exhibit F.  Letter, AFBCMR, dated 18 Jan 18, w/atchs.

Pursuant to paragraph 1 of AFI 36-2603 (Title 32 Code of Federal Regulations, Part 865.1), it is certified a quorum was present at the Board's review and deliberations regarding AFBCMR Docket Number BC-2016-00396, and the foregoing is a true and complete record of the Board's proceedings in the above entitled matter.