RECORD OF PROCEEDINGS

IN THE MATTER OF:	DOCKET NUMBER: BC-2016-01004

	COUNSEL: NONE
	
	HEARING: NO

APPLICANT REQUESTS THAT:  Her record be changed from an entry level separation to permanent, total disability [retirement] service connected.

APPLICANT CONTENDS THAT:  Her two supervisors sexually assaulted her while at technical school and the next day her commander discharged her from the Air Force.  She was too scared and mentally upset to fight the discharge.  The Department of Veterans Affairs (DVA) has rated her 100 percent permanent and total disable, service connected.  The military owes her as it was not her fault she failed to compete her enlistment.  The applicant’s complete submission is at Exhibit A.

STATEMENT OF FACTS:

The applicant is a former Airman First Class.

On 14 Mar 06, the applicant received a Letter of Reprimand (LOR) for violating the Uniform Code of Military Justice (UCMJ), Article 92 (failure to obey), after being found in her dorm room with a male student and underage drinking.  

On 11 Apr 06, the applicant received a second LOR for violating UCMJ, Article 134 (soliciting another to commit an offense), after soliciting a fellow student to purchase alcohol as she was under the legal age.  

On 19 May 06, the applicant’s commander notified her she was being recommended for discharge due to her inability to conform to requirements.

On 24 Aug 06, the applicant’s discharge was found to be legally sufficient.  

On 8 Mar 07, the applicant was honorably discharged from the Kentucky Air National Guard by reason of Entry Level Separation.  

On 14 Jul 10, the DVA rated the applicant 70 percent service connected for post-traumatic stress disorder with major depressive disorder effective 29 Jan 10 and, according to documents provided by the applicant, is currently rated at 100 percent.   

For more information, see the excerpt of the applicant’s record at Exhibit B and the advisories at Exhibit C and D.

AIR FORCE EVALUATION:

The AFBCMR Psychiatric Advisor recommends denying the applicant’s request; however, makes a recommendation to correct the applicant’s record to reflect an uncharacterized character of service.  This psychiatric advisor is deeply empathetic towards the applicant’s struggles and acknowledges that the sexual assault she suffered while serving in the Air Force has probably significantly changed her life trajectory. The Secretary of Defense has acknowledged the need for retribution for victims of military sexual assault and released guidance for the Military Boards of Correction of Military Records, directing them to apply “liberal considerations” in discharge upgrade considerations.  Since the applicant received an Entry Level Separation, her service Characterization should be Uncharacterized, however, the applicant’s NGB Form 22 does not list her Character of Service and her special order states “Honorably discharged.”  The Board should certainly correct this error, and, if it deems appropriate is empowered to grant the applicant an Honorable discharge characterization.  Facts are dry and dispassionate; nevertheless, this Board can bring the “human” factor into their decision.  However, unless additional clinical information from 2006 is presented for the review, the psychiatric advisor would not be able to prove that error or injustice took place in the decision rendered.  The complete advisory is at Exhibit C.

NGB/A1PP recommends denying the application.  While deeply saddened by the trauma suffered by the applicant and her continued struggles, NGB/A1PP agrees with AFBCMR Psychiatric Consultant’s analysis that her the Department of Veterans Affairs (DVA) and the Disability Evaluation System (DES) are governed by separate and distinct guidelines.  However, they disagree with the AFBCMR Psychiatric Consultant’s assertion that the applicant’s characterization of service should be “Uncharacterized.”  Rather, it was correctly entered as “Entry Level Separation” in accordance with the applicable Air Force Instruction.  Therefore, her involuntary separation was executed in accordance with policy and found legally sufficient by the Staff Judge Advocate assigned to the case.  The complete advisory is at Exhibit D.  

APPLICANT’S REVIEW OF AIR FORCE EVALUATION:

The Board sent a copy of the Air Force evaluation to the applicant on 14 Feb 18 for comment (Exhibit D), but has received no response.

THE BOARD CONCLUDES THAT:

1.  The application was not 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 that the applicant is not the victim of an error and injustice.  While the Board notes the comments of the AFBCMR Psychiatric Advisor indicating a correction to the record should be granted, the Board further concurs with the rationale and recommendation of NGB/A1PP and finds that a preponderance of the evidence does not substantiate the applicant’s contentions.  The Board also notes the applicant did not file the application within three years after the alleged error or injustice was discovered, or should have been discovered, as required by Title 10, United States Code, Section 1552, and Air Force Instruction 36-2603, Air Force Board for Correction of Military Records (AFBCMR).  While the applicant asserts a date of discovery less than three years before the Board’s receipt of the application, the Board does not find the assertion reasonable.  The Board finds the application untimely and concludes it would not be in the interest of justice to excuse the delay.  Therefore, the Board recommends against correcting the applicant’s records.

THE BOARD RECOMMENDS THAT:

The applicant be informed the application was not timely filed; it would not be in the interest of justice to excuse the delay; and the application will only be reconsidered upon receipt of relevant evidence not already considered by the Board.

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-2016-01004 in Executive Session on 11 Apr 18.

Panel Chair
Panel Member
Panel Member

All members voted to not correct the record.  The panel considered the following:

Exhibit A:	Application, DD Form 149, w/atchs, dated 6 Mar 16.
Exhibit B:	Documentary evidence, including excerpts from official records.
Exhibit C:	Advisory opinion, AFBCMR Psychiatric Advisor, dated 18 Dec 17.
Exhibit D:	Advisory opinion, NGB/A1PP, w/atch, dated 31 Jan 18.
Exhibit E:	Notification of Advisory, SAF/MRBC to applicant, dated 14 Feb 18.

Taken together with all Exhibits, this document constitutes the true and complete Record of Proceedings required by AFI 36-2603, paragraph 4.11.9.