RECORD OF PROCEEDINGS

IN THE MATTER OF:	DOCKET NUMBER: BC-2016-04990

  	COUNSEL: NONE

  	HEARING: NO

APPLICANT REQUESTS THAT:

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

APPLICANT CONTENDS THAT:

He received an Article 15 for drinking and acting disorderly while stationed in Spain.  He tried to explain his situation; however, he was arrested and placed in jail.  When he woke up, he was bent over a chair with his hands handcuffed behind his back, and crying because he had been assaulted.  He was disappointed and felt victimized because he had been assaulted.  He filed a claim with the Veterans Affairs (VA) for service connection Military Sexual Trauma (MST).  He is asking the Board not to hold his mistakes against him because he was victimized.  The reviewing judge advocate recommended that he receive an honorable discharge.  The applicant’s complete submission is at Exhibit A.

STATEMENT OF FACTS:

On 10 Apr 81, the applicant entered into the Regular Air Force. 

On 27 Sep 83, the applicant was notified of his commander’s intent to recommend he be discharged from the Air Force under the provisions of AFR 39-10, paragraph 5-47 Misconduct, Pattern of Minor Disciplinary Infractions.  The specific reasons for this action were for being disorderly, late for duty, intoxicated, and for stealing gasoline/food.  He received three (3) Article 15s, a Letter of Reprimand (LOR), forfeited $100.00, and reduced to the grade of airman basic (AB).

According to the a Judge Advocate  review, dated 5 Oct 83, the staff judge advocate  recommended the applicant receive a general discharge without conditional suspension and rehabilitation.

On 13 Oct 83, the applicant received a general (under honorable conditions) discharge after serving 2 years, 6 months, and 4 days of active service. 

The applicant filed an appeal to the Air Force’s Discharge Review Board (DRB) for an Honorable discharge.  On 14 Sep 92, the DRB denied his appeal because they did not find any inequity or impropriety in his discharge processing.  The DRB reported his reasons for appeal were all found to be invalid as he had a poor overall military record, was 21 years of age when he was discharged and did not respond to any counseling or disciplinary actions, and he received alcohol and drug treatment as part of rehabilitation efforts in which he did not respond. He did not mention experiencing any depression or MST in his appeal to DRB.   
 
For more information, see the excerpt of the applicant’s record at Exhibit B and the advisories at Exhibits C, D, and E.

The Board sent a copy of the Clemency Bulletin to the applicant on 19 Sep 17 for comment (Exhibit C), in response the applicant provides a copy of his FBI Report, see Exhibit G.  

AIR FORCE EVALUATION:

AFLOA/JAJM recommends denying the applicant’s request.  A review of the non-judicial punishments (NJPs) imposed on him reveals no legal error or injustice, which would warrant removal of the NJPs from his record.  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 nature and extent of the punishment.  The exercise of that discretion should generally not be reversed.  Whether clemency is warranted due to the applicant’s development after the Air Force or the reconsideration guidance for victims of MST is a matter within the discretion of the BCMR.  

The complete advisory is at Exhibit D.

The BCMR Psychological Advisor recommends denying the application.   The applicant received multiple Article 15s mostly for alcohol related incidents and was reported to have received alcohol and drug abuse counseling while in service.  These treatment records were not available for review.  During his separation physical exam, he reported that he attempted suicide by overdose prior to service and reported having sleep problems, excessive worry, memory problems, and periods of unconsciousness all due to drinking. There was no report of any depression as the applicant contended.  There was also no documentation or report of any assault, physical or sexual, noted in his military or medical records while in service.  
 
He contends that he was assaulted when he was in Spain and drank to cope with depression resulting from the assault.  It is noteworthy to mention that the applicant reported being “assaulted” several times in his appeal letter to BCMR and only specifically referred to MST when he stated that he “filed a claim with the VA for service connection of Military Sexual Trauma.”  He did not specify the type of assault he experienced and this consultant assumed it to be MST based on this statement.  However, a thorough of his records does not support his assertion. Three different providers reported that the applicant specifically reported no MST in service: 1) Intake on 25 Oct 11 reported, “He was not abused in the military sexually”, 2) Pain psychology evaluation on 23 Mar 11 reported, “Military sexual trauma: Denied”, and 3) Intake for mental health services dated on 22 Aug 11 reported, “Experienced sexual trauma in the military: No.”  
 
There were many discrepancies found in his treatment notes about his reported drinking and the assault incident in service that differs from his account detailed in his appeal letter to BCMR.  His psychiatrist documented in his treatment notes dated 2 May 2008, “He states he started drinking in the Air Force while stationed in Spain.  He states he drank to have a good time.”  This report is contrary to the applicant’s contention that he drank because he was depressed due to being assaulted. His psychotherapy provider reported on 25 October 2012, “He reported that when he was in his early twenties his mother told him that she did not want him and that she ‘should have flushed [him] down the toilet.” 

The complete advisory is at Exhibit E.

APPLICANT’S REVIEW OF AIR FORCE EVALUATION:

The Board sent a copies of the Air Force evaluations to the applicant on 31 May 18 for comment (Exhibit D and E), 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 injustice.  The Board concurs with the rationale and recommendations of AFPC/JA and the BCMR Psychological Advisor and finds that a preponderance of the evidence does not substantiate the applicant’s contentions.  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 that would lead the Board 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, the Board considered upgrading the discharge based on clemency; however, the Board did not find the evidence presented sufficient to recommend granting relief on that basis.  Therefore, in the absence of evidence to the contrary, the Board finds no basis to recommend granting the relief sought.

THE BOARD RECOMMENDS THAT:

The applicant be informed the evidence did not demonstrate material error or injustice, 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-2016-04990 in Executive Session on 18 Jul 18 and 22 Oct 18:

, 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 10 Nov 16.
Exhibit B:	Documentary evidence, including relevant excerpts from official records.
Exhibit C: Clemency Bulletin, AFBCMR, dated 19 Sep 17.
Exhibit D:	Advisory opinion, AFLOA/JAJM, dated 8 Nov 17.
Exhibit E:  Advisory opinion, BCMR MH Advisor, 9 May 18.
Exhibit F:	Notification of Advisory, SAF/MRBC to applicant, dated 31 May 18.
Exhibit G: FBI Report, Applicant, dated 10 Mar 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-2016-04990.