ADDENDUM TO RECORD OF PROCEEDINGS

IN THE MATTER OF:	DOCKET NUMBER: BC-2016-01550-2

xxxxxxxxxxx	COUNSEL: XXXXXXXXXXXX

	HEARING REQUESTED: NO	

APPLICANT’S REQUEST

The Board reconsider his request for the following:

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

b.	His United States Air Force Academy (USAFA) debt be waived, or in the alternative, he be allowed to serve in the military by changing his reenlistment (RE) code to allow for enlistment as a means to repay his debt. 

RESUME OF THE CASE

The applicant is a former Air Force Academy Cadet who was disenrolled from the Academy on 30 Apr 09 due to a pattern of misconduct.  On 13 Oct 09 he received a general (under honorable conditions) discharge.

On 24 Sep 09, the Secretary of the Air Force reviewed the applicant’s case regarding his misconduct at the USAFA and ordered that he reimburse the United States Government $164,627.00 for the cost of his Academy education (Provided by the Applicant in the Original Application dated 4 Apr 16). 

On 11 Dec 13, the applicant requested a hearing regarding his USAFA debt.  On 23 Apr 14, the Board reviewed his records and pertinent documentation and determined the debt remains valid and the amount is correct.  The applicant was provided due process and collection of the debt by administrative wage garnishment, not to exceed 15 percent of disposable pay, is proper (Provided by the Applicant in the Original Application dated 4 Apr 16).

On 14 Sep 18, the Board considered and denied his request to upgrade his discharge; concurring with the advisory opinion of USAFA/JA finding the applicant had provided insufficient evidence of an error or injustice to justify relief.  The Board also noted the applicant did not file the application within three years after the alleged error or injustice was discovered, or should have been discovered.  Regarding his request for debt relief, the Board concluded the applicant did not exhaust all available avenues of non-judicial relief; specifically the AF Remissions Board (SAF/RB), therefore, they did not consider his application without documentation showing exhaustion of such avenues of relief.

For an accounting of the applicant’s original request and the rationale of the earlier decision, see the AFBCMR Letter and Record of Proceedings at Exhibit F. 

On 19 Jun 20, the applicant requested reconsideration of his request for a discharge upgrade and a debt remission.  His counsel contends the applicant suffered from symptoms of depression brought on by grief during his time at the Academy.  In the fall of 2007, his girlfriend became pregnant and suffered a miscarriage causing him to experience grief and loss.  His girlfriend subsequently and abruptly ended their relationship exacerbating his emotional trauma as she and her family were considered to be his support system.  His unresolved grief from these situations was the underlying cause of his misconduct and change in behaviors. 

On 17 Mar 21, another application was filed in which the applicant submitted additional documentation.  His counsel contends in January 2021, both his parents died in a vehicle accident stating the grief he is experiencing is palpable and his future is uncertain.  His parents were the support that bolstered him; their premature death has left him in greater financial distress.

In support of his reconsideration request, the applicant submitted the following new evidence: (1) a personal statement; (2) Information regarding the death of his parents; (3) a Psychologist Assessment; (4) Numerous recommendations and character reference letters; and (5) Letter from DFAS regarding his application for remission. 

The applicant’s complete submission is at Exhibits G and H.

APPLICABLE AUTHORITY/GUIDANCE

On 3 Sep 14, 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 Aug 17, the Under Secretary of Defense for Personnel and Readiness (USD P&R) 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.

Under Consideration of Mitigating Factors, it is noted that PTSD is not a likely cause of premeditated misconduct.  Correction Boards will exercise caution in weighing evidence of mitigation in all cases of misconduct by carefully considering the likely causal relationship of symptoms to the misconduct.  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.

Boards are directed to consider the following main questions when assessing requests due to mental health conditions including PTSD, TBI, sexual assault, or sexual harassment:

a. Did the veteran have a condition or experience that may excuse or mitigate the discharge?
b. Did that condition exist/experience occur during military service?
c. Does that condition or experience actually excuse or mitigate the discharge? 
d. Does that condition or experience outweigh the discharge?

On 25 Jul 18, the Under Secretary of Defense issued supplemental guidance to military corrections boards in determining whether relief is warranted based on equity, injustice, or clemency.  These standards authorize the board to grant relief in order to ensure fundamental fairness.  Clemency refers to relief specifically granted from a criminal sentence and is a part of the broad authority Boards have to ensure fundamental fairness.  This guidance applies to more than clemency from sentencing in a court-martial; it also applies to any other corrections, including changes in a discharge, which may be warranted on equity or relief from injustice grounds.  This guidance does not mandate relief, but rather provides standards and principles to guide Boards in application of their equitable relief authority.  Each case will be assessed on its own merits.  The relative weight of each principle and whether the principle supports relief in a particular case, are within the sound discretion of each Board.  In determining whether to grant relief on the basis of equity, an injustice, or clemency grounds, the Board should refer to the supplemental guidance, paragraphs 6 and 7. 

On 18 Oct 21, the Board staff provided the applicant a copy of the liberal consideration guidance (Exhibit K).

AFI 36-3208, Administrative Separation of Airmen, describes the types of service characterization: 

Honorable.  The quality of the airman’s service generally has met Air Force standards of acceptable conduct and performance of duty or when a member's service is otherwise so meritorious that any other characterization would be inappropriate. 

Under Honorable Conditions (General).  If an airman’s service has been honest and faithful, this characterization is warranted when significant negative aspects of the airman's conduct or performance of duty outweigh positive aspects of the airman's military record.

Per AFI 36-3034, Remission of Indebtedness, paragraph 2.1, any person who incurred a debt on or after 7 Oct 01 while serving on active duty in the Air Force may apply for remission of indebtedness to the United States Air Force.  The debt must be established and any administrative procedures and appeals regarding the existence, validity, or amount of the debt must have been completed prior to application.  

Per paragraph 3.2.4, indebtedness will not be remitted or canceled when the applicant has received less than an Honorable Discharge at the time of separation, i.e., discharged with an entry level separation, under honorable conditions (general) discharge, under other than honorable conditions discharge, bad conduct discharge, dishonorable discharge, or dismissal.

AIR FORCE EVALUATION

The AFBCMR Psychological Advisor recommends denying the applicant’s request finding insufficient evidence to support a discharge upgrade based on his mental health contention.  The applicant and his legal counsel submitted a report from a psychologist dated on 3 Feb 20 offering a possible explanation of the applicant’s behaviors at USAFA. The psychologist provided a disclaimer in the report proclaiming the applicant was not seen or evaluated by the psychologist and was merely offering a “hypothetical reasoned explanation” of his behaviors.  The psychologist explained the loss of his child and subsequent breakup were significant factors and these stressors may cause him to make errors in his decision making.  While the psychologist reasoned the applicant sought support from a female friend and later female cadet was normal, the psychologist alluded to the stress the applicant was experiencing may cause him to ignore minor rules and regulations leading to his disciplinary action, caused him to seek out a co-dependent type relationship with a female cadet causing negative consequences to him, and drank alcohol to cope with his stress.  The author stated the applicant was never referred for an evaluation by his leadership and if he had received a mental health assessment or treatment, he would have been able to more effectively cope with his personal stressors.  This psychological advisor opined, while it is plausible his personal stressors may have impaired his judgment causing his behavioral changes and misconduct issues, his repeated patterns of misconduct over an extended period of time is admittedly difficult to overlook.  The applicant and his legal counsel did not adequately explain how his mental health condition caused or mitigated some of his more serious misconduct.  For his first Letter of Admonishment (LOA), they claimed the ex-boyfriend of his female friend contacted the Commanding Officer’s office and reported he had gone absent without leave (AWOL) and had broken other Academy rules to include those pertaining to visitors.  They made no explanation of how his mental health condition caused his behaviors in the LOA, although the psychologist attempted to explain it was his stress that caused the unheeded reaction to minor rules and regulations.  These are not minor rules and regulations but rather serious infractions and appeared to be an attempt to minimize his behaviors.  The applicant’s records indicated he initially denied having an inappropriate relationship with a fellow female cadet despite the female cadet confirming the relationship.  He later conceded to his commander “I think it was over the borderline of unprofessional” as documented in the Memorandum for Record of his unprofessional relationship dated on 2 Dec 07.  The applicant’s inappropriate relationship was not a one-time occurrence but occurred over multiple occasions.  As the psychologist opined, this relationship probably developed into a co-dependent relationship over time due to their shared grief and loss.  This may be a reasonable explanation but does not excuse his behaviors of blatantly and repeatedly ignoring rules and regulations.  He violated a no-contact order and explained it was a misunderstanding of the rules of probation.  The explanation provided did not sufficiently explain or indicate it was his mental health condition that caused his lapse in judgment and if did, co-dependency traits are considered unsuiting for service.  Finally, he was accused of using marijuana, a serious offense, during the Thanksgiving break that he had accepted responsibility for his actions.  Again no further discussion or explanation of how his mental health condition caused his behaviors.  

The applicant and legal counsel contend he was depressed caused by the grief and loss of his child and relationship.  Beside his personal testimony, there was no evidence to substantiate he was depressed during his time at the Academy and no clarifying information provided about the frequency and severity of his depressive symptoms.  There were also no specific depressive symptoms reported such as any sleep issues, poor concentration, memory issues, low energy, anhedonia, etc. that he may have experienced to augment their contentions.  There were no records he was ever seen by a mental health professional for an evaluation or treatment during his time at the Academy or after he was disenrolled.  There were no records or statements from fellow cadets or his leadership of any observed depressed mood or mental health issues.  In all of his responses to his disciplinary actions, the applicant never mentioned or implied having any mental health issues or personal stressors that may cause his behaviors.  This psychological advisor concedes the applicant should have been referred to a mental health evaluation following his alcohol related incidents, but a referral by his leadership for an evaluation is not mandated or required.  Even if he had received an evaluation, it is not certain if he would have been willing to fully disclose his personal stressors as the applicant had acknowledged he was fearful he would be removed from the Academy for his problems.  It is reminded, the responsibility is also placed on the applicant to seek professional help for his identified stressors.  He had awareness of mental health services available at USAFA as he had received neuropsychological testing from a psychologist at the Cadet Clinic.  The applicant’s participation in treatment would have been voluntary and there was no guarantee he would have been cooperative or engaged in treatment as the situation never occurred.  Therefore, the opinion of the psychologist that should he receive mental health treatment, he would have been able to effectively cope with his problems, are purely speculative.  Despite the absence of a mental health evaluation or treatment at the Academy, the applicant’s leadership had provided ample opportunities and time via academic, aptitude and conduct probation to assist with improving his conduct and performance.  These efforts however, proved to be futile.  His repeated misconduct occurred over a two-year period, and he was unable to function in the Academy environment leading to his disenrollment.  The applicant had difficulties following rules and regulations, making him incompatible and disqualified to continue with a prospective military career and satisfactorily complete his education at USAFA.  As a result, this psychological advisor finds no error or injustice with his discharge and disenrollment from the Academy.  

The Board may elect to apply liberal consideration to the applicant’s request due to his contention of a mental health condition, however, there are no objective records to support he was depressed during his time at the Academy, it is plausible he may have been depressed during his time at the Academy. Giving the applicant the benefit of the doubt of this possibility despite any objective or compelling evidence, his depressed mood may cause some of his misconduct but does not excuse or mitigate his discharge.  He had engaged in a pattern of repeated misconduct with serious infractions that could not be overlooked or outweighed by his mental health condition or experience. The applicant was provided with assistance by his leadership over a two-year period and he was not amenable to their intervention efforts.

The complete advisory opinion is at Exhibit I.

APPLICANT’S REVIEW OF AIR FORCE EVALUATION

The Board sent a copy of the advisory opinion to the applicant on 13 Oct 21 for comment (Exhibit J), and the applicant replied on 12 Nov 21.  In his response, the applicant’s counsel contends the advisory opinion from the psychological advisor contradicts the mental health assessments submitted by the applicant which state his mental health condition mitigated his behavior and outweighed what had been imposed on him as a result.  The fact that it was incumbent upon the applicant to recognize his own mental health struggles and seek help is short-sighted which, in past decisions, resulted in litigation to enforce the Kurta Memorandum guidance.  He excelled at the academy until he suffered the loss of his unborn child.  Moreover, the recent death of his parents and the remaining debt has made his financial situation dire.

The applicant’s complete response is at Exhibit L.

FINDINGS AND CONCLUSION

1.  The application was timely filed.

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

3.  After reviewing all Exhibits, the Board remains unconvinced the evidence presented demonstrates an error or injustice.  The Board concurs with the rationale and recommendation of the AFBCMR Psychological Advisor and finds a preponderance of the evidence does not substantiate the applicant’s contentions.  Furthermore, the Board applied liberal consideration to the new evidence submitted by the applicant; however, it is not sufficient to overturn the Board’s decision.  Therefore, the Board recommends against correcting the applicant’s records.

RECOMMENDATION

The Board recommends informing the applicant the evidence did not demonstrate material error or injustice, and the Board will reconsider the application only upon receipt of relevant evidence not already presented.

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-2016-01550-2 in Executive Session on 15 Dec 21:

, Panel Chair
, Panel Member
, Panel Member

All members voted against correcting the record.  The panel considered the following:

Exhibit F:	Record of Proceedings, w/ Exhibits A-E, dated 14 Sep 18.
Exhibit G:	Application, DD Form 149, w/atchs, dated 19 Jun 20.
Exhibit H: Additional Application, DD Form 149, w/atchs, dated 17 Mar 21.
Exhibit I:	Advisory Opinion, AFBCMR Psychological Advisor, dated 7 Oct 21. 
Exhibit J:	Notification of Advisory, SAF/MRBC to Applicant, dated 13 Oct 21.
Exhibit K: Letter to Applicant, SAF/MRBC (Liberal Consideration), dated 18 Oct 21.
Exhibit L:	Applicant’s Response, w/atchs, dated 12 Nov 21.

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