RECORD OF PROCEEDINGS

IN THE MATTER OF:	DOCKET NUMBER: BC-2016-04612

XXXXXXXXXXXXXX	COUNSEL: NONE
	
	HEARING: YES

APPLICANT REQUESTS THAT:

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

APPLICANT CONTENDS THAT:

He was unjustly separated for misconduct, because he was suffering from PTSD.  Based on the 2014 SECDEF Hagel Memo (liberal consideration for discharge relief due to mental conditions), his undiagnosed Post Traumatic Stress Disorder (PTSD) was a cause of his misconduct.  The applicant’s complete submission is at Exhibit A.

STATEMENT OF FACTS:

The applicant initially joined the Regular Air Force on 5 Feb 93.

On 3 May 1994, the applicant was notified of his commander’s intent to impose Non Judicial Punishment (NJP) for one charge and specification of malingering in violation of Article 115, UCMJ, and one charge and specification of communicating a threat in violation of Article 134.

On 19 May 1994, applicant was notified of his commander’s intent to administratively discharge him from the Air Force with his service characterized as general.    

On 31 May 94, a legal review of the applicant’s proposed discharge actions found the actions factually, procedurally, and legally sufficient to support the applicant’s discharge for a commission of a serious offense.  

On 2 Jun 94, the applicant was rendered a General (Under Honorable Conditions) discharge for misconduct, having served 1 year, 3 months, and 28 days of active service.  

On 11 Aug 17, 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 C).  

On 25 Aug 17, the Office of the Under Secretary of Defense provided clarifying guidance: “Military Discharge Review Boards and Boards for Correction of Military/Naval Records Considering Requests by Veterans for Modification of their Due to Mental Health Conditions, Sexual Assault, or Sexual Harassment,” supplementing previous similar guidance issued 24 Feb 16 and 3 Sep 14 (Exhibit D).

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

AIR FORCE EVALUATION:

AFLOA/JA recommends denying the application.  The application was not filed within three years of the discovery of the alleged error or injustice, or with due diligence, should have been determined.  Notwithstanding timeliness, their review of applicant’s records did not show any documentation or confirmation of any medical or mental health issues relating to his Apr 94 misconduct. He submitted no evidence to support the contention in his petition that he was suffering from PTSD at the time he received his NJP.  While the DoD 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, and when no evidence is submitted to support that claim.  They defer to AFPC/JA regarding the legal sufficiency of applicant’s administrative discharge action.  The complete advisory is at Exhibit E.

AFPC/JA recommends denying the application.  The 2014 SECDEF memo the applicant refers to was supplemented by the Acting Under Secretary of Defense for Personnel and Readiness on 25 Aug17.  The sum effect of these memos is that liberal consideration should be given to veterans petitioning for discharge relief when that relief is based on matters relating to mental health conditions, including PTSD.  The memos also clarify that evidence can come from many sources, including outside the member’s service record.  In this case, the applicant provides no evidence that he suffered from a mental health issue aside from one statement on his application form, “I was suffering from PTSD.”  There is no further clarification in a personal statement regarding what may have caused it, what the symptoms are, what treatments have been sought, or any other information at all.  There are also no letters from doctors, psychologists, psychiatrists, or any other medical professional to indicate that he has been diagnosed with, or even evaluated for, PTSD.  There is nothing in the applicant’s file that would indicate that he was diagnosed with, or evaluated for, PTSD while on active duty.  The complete advisory is at Exhibit F.

AFBCMR Psychiatric Advisor recommends denying the application.  The applicant’s medical records were not part of his case file.  The Psychiatric Advisory opined a review of the investigative report and the discharge documents, revealed the applicant’s discharge was a result of the distasteful suicide/homicide joke that was misinterpreted and perceived as threatening and offensive by the fellow Airmen and the Command.  He has failed to provide any evidence from the DVA or any other mental health provider that he suffers from PTSD as a result of his deployment.  Furthermore, the Psychiatric Advisor would struggle finding a nexus between the PTSD symptoms and his misconduct.  The complete advisory is at Exhibit G.

APPLICANT’S REVIEW OF AIR FORCE EVALUATION:

The Board sent copies of the Air Force evaluations to the applicant on 17 Sep 18 for comment (Exhibit H), 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.  The Board concurs with the rationale and recommendation of AFLOA/JA, AFPC/JA, and the AFBCMR Psychiatric Advisor, and finds that a preponderance of the evidence does not substantiate the applicant’s contentions.  The applicant has failed to provide any evidence from the DVA or any other mental health provider that he suffers from PTSD because of his deployment.  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.

4.  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 the Board’s understanding of the issues involved.

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.

The application was adjudicated without a personal appearance.

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-2016-04612 in Executive Session on 30 Oct 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 5 Nov 16.
Exhibit B:	Documentary evidence, including relevant excerpts from official records.
Exhibit C:	Clemency Letter, dated 11 Aug 17.
Exhibit D:	DoD Guidance on PTSD, w/atchs, dated 25 Aug 17
Exhibit E:	Advisory opinion, AFLOA/JAJM, dated 12 Oct 17.
Exhibit F:	Advisory opinion, AFPC/JA, dated 19 Oct 17..
Exhibit G:	Advisory opinion, AFBCMR Psychiatric Advisor, dated 25 Jun 18.
Exhibit H:	Notification of Advisory, SAF/MRBC to applicant, dated 17 Sep 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.