RECORD OF PROCEEDINGS

IN THE MATTER OF:	DOCKET NUMBER: BC-2016-01883

XXXXXXXXXXXXXX	COUNSEL: NONE
	
	HEARING: NO

APPLICANT REQUESTS THAT:

His discharge be upgraded from General (Under Honorable Conditions) to Honorable, for medical reasons.

APPLICANT CONTENDS THAT:

He was misrepresented by his legal counsel during the discharge process.  He was constantly harassed by supervisors and peers in the unit because of his suspected sexual orientation.  At no time was his medical condition that caused him to not perform his duties properly, taken into account.  The applicant’s complete submission is at Exhibit A.

STATEMENT OF FACTS:

On 22 Feb 79, the applicant initially entered the Regular Air Force.  

On 14 Nov 80, the applicant was notified of his commander’s recommendation for his discharge for misconduct under AFM 39-12, Chapter 2, Section B, Paragraph 2-15a, and of the specific reasons for the proposed discharge.

On 1 Dec 80, the applicant signed a document acknowledging and indicating he received legal counsel and did not desire to submit statements or a rebuttal concerning the action being taken or to the charges made.

On 2 Dec 80, the Evaluation Officer of the applicant’s case found that due to misconduct, the applicant was subject to administrative discharge.  

On 12 Dec 80, the base JA found the administrative discharge action in the matter of the applicant to be legally sufficient.  

On 16 Dec 80, the applicant was furnished a General (Under Honorable Conditions) discharge, and was credited with 1 year, 9 months, and 25 days of active service.

On 17 Aug 16, a request for post-service information was forwarded to the applicant for review and comment within 30 days.  As of this date, no response has been received by this office (Exhibit D).

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

AIR FORCE EVALUATION:

AFBCMR Medical Consultant recommends denying the application.  The applicant’s petition has not been timely filed, noting that this opportunity for redress was only reportedly recently disclosed to him by a licensed clinical social worker in preparation for the applicant’s release from a 34-year incarceration.  He found no clear medical justification for an upgrade of discharge to honorable based upon “nerve damage to hip, depression, and minor hearing loss.” The Medical Consultant recommended obtaining the medical opinion of a psychologist or psychiatrist to validate presence or absence of sufficient matters in mitigation and extenuation to justify an upgrade of discharge, along with consideration of an upgrade of discharge characterization based upon Clemency.  The complete advisory is at Exhibit C.

The AFBCMR Psychological Consultant recommends denying the application.  Based on review of applicant’s available medical records, the Consultant opines the applicant has not met the burden of proof of error or injustice that warrants the desired change of the record.  There was no documentations to suggest he was misrepresented by counsel, had a medical condition that affected his work performance, and no documentation by applicant that he was persecuted or sexually harassed to his superiors, legal counsel, or medical and mental health care providers that caused his misconduct.  The complete advisory is at Exhibit E.    

APPLICANT’S REVIEW OF AIR FORCE EVALUATION:

The Board sent copies of the Air Force evaluations to the applicant on 30 Apr 18 for comment (Exhibit F), and the applicant’s response was received on 9 Jul 18.  In his response, the applicant disagrees with the AFBCMR Psychological Consultant’s advisory.  He contends that his incarceration over 36 years that just ended was not a continuation of minor (albeit cumulative) military misconduct, but rather the result of nearly two years of harassment and three assaults by homophobic peers and supervisors.  He states he is willing to accept a “Clemency” upgrade recommendation made by the BCMR Medical Consultant.  The applicant’s complete response is at Exhibit G.

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.  The Board concurs with the rationale and recommendation of the AFBCMR Psychological Consultant, 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-2016-01883 in Executive Session on 13 Aug 18:

, Panel Chair 
, Panel Member
, Panel Member

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

Exhibit A:	Application, DD Form 149, w/atchs, dated 29 Apr 16.
Exhibit B:	Documentary evidence, including relevant excerpts from official records.
Exhibit C:	Advisory opinion, AFBCMR Medical Consultant, dated 1 Aug 16.
Exhibit D:	Clemency Letter, AFBCMR/MRBC, dated 17 Aug 16.
Exhibit E:	Advisory opinion, AFBCMR Psychological Consultant, dated 14 Mar 18.
Exhibit F:	Notification of Advisory, SAF/MRBC to applicant, dated 30 Apr 18.
Exhibit G:	Applicant’s response, received 9 Jul 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, pertaining to Docket Number BC-2016-01883.