SECOND ADDENDUM TO RECORD OF PROCEEDINGS

IN THE MATTER OF:	DOCKET NUMBER: BC-1996-02537-3

XXXXXXXXXXXXXXX	COUNSEL: NONE

	HEARING REQUESTED: NO

APPLICANT’S REQUEST

His bad conduct discharge (BCD) be upgraded to general (under honorable conditions) or that he be honorably retired.

In an email dated 19 Mar 20, the applicant amended his request to include restoring his rank of technical sergeant.

RESUME OF THE CASE

The applicant is a former airman basic (E-1) who served in the Regular Air Force.

On 1 Jun 87, the applicant was promoted to the grade of technical sergeant.

On 1 Apr 92, the applicant received an Article 15 for his failure to go to his appointed place of duty on 18 and 19 Mar 92.  As a result, he was demoted to the grade of staff sergeant (E-5).

According to AFLSA/JAJM advisory dated 20 Nov 96, on 6 Jan 93, the applicant was tried by general court martial and was found guilty of two specifications of wrongful use of cocaine.  On 11 Jan 95, General Court-Martial Order No. 5 was issued ordering a bad conduct discharge to be executed.  On 8 Feb 95, the applicant received a bad conduct discharge with a narrative reason for separation of Court Martial and the corresponding separation code of “JJE.”  He was credited with 22 years and 16 days of active service.

On 11 Mar 97, the Board considered and denied the applicant’s request to upgrade his discharge finding that the applicant had provided insufficient evidence of an error or injustice to warrant corrective action.  The Board also noted that the facts and opinions stated in the advisory opinion provided by Air Force Office of Primary Responsibility appeared to be based on the evidence of record and were not adequately rebutted by the applicant.  For an accounting of the applicant’s original request and the rationale of the earlier decision, see the Record of Proceedings at  Exhibit F.

On 11 May 12, the applicant requested reconsideration of his request to upgrade his discharge.  On 30 May 13, the Board staff notified the applicant that his request for reconsideration of his application did not meet the criteria for reconsideration by the Board.  Specifically, he did not provide any new and relevant evidence to support his appeal (Exhibit G).

On 19 Feb 19, the applicant requested reconsideration of his request for a discharge upgrade and that the Board also consider changing his discharge to an honorable retirement and restoration of his grade to technical sergeant.  He again contends that his discharge should be upgraded due to his mental illness and 100 percent service-connected disability.  His undiagnosed Post Traumatic Stress Disorder (PTSD) was a major contributing factor for his alcoholism and drug use, eventually leading to his court-martial, bad conduct discharge and relinquishment of his retirement with more than 20 years of service.  His mental disease was a major contributing factor for his misconduct and two failed marriages.  Some catastrophic events happened during his time in service, causing reoccurring nightmares and anxiety.  He turned to alcohol and drugs to try to cope.  He is requesting liberal consideration based on PTSD.

As new evidence, the applicant provides a copy of his Department of Veterans Affairs (DVA) Rating Decision and excerpts from his military records.

The applicant’s complete submission, with attachments, is at Exhibit H.

POST-SERVICE INFORMATION

On 19 Jun 19, the Board sent the applicant a request for post-service information (Exhibit J), including a standard criminal history report from the Federal Bureau of Investigation (FBI); however, he has not replied.

APPLICABLE AUTHORITY

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.

Currently, service members diagnosed with mental health conditions receive heightened screening to ensure the causal relationship of possible symptoms and discharge basis is fully considered, and characterization of service is appropriate.  Veterans discharged under prior procedures, or before verifiable diagnosis, may not have suffered an error because the separation authority was unaware of their condition or experience at the time of discharge.  However, when compared to similarly situated individuals under current standards, they may be the victim of injustice because commanders fully informed of such conditions and causal relationships today may opt for a less prejudicial discharge to ensure the veteran retains certain benefits, such as medical care.

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.

On 25 Jul 18, the USD P&R issued further guidance with the intent to set clear standards.

Copies of the Board guidance memoranda are at Exhibit N.

AIR FORCE EVALUATION

The AFBCMR Psychiatric Advisor has found sufficient evidence of injustice in the decision rendered.  The Psychiatric Advisor recommends the applicant’s discharge be upgraded to a general (under honorable conditions) discharge.  The applicant had 20 years of military service at the time of his positive urine drug screen and a majority of his Enlisted Performance Reports reflect exemplary performance.  It is unknown when the applicant developed substance abuse problems, but he continues to struggle with drug addiction to this day.  It is very unusual for someone to develop de novo drug addiction in their late 30’s and it is unlikely that the applicant abused drugs without getting caught for 20 years.  Therefore, his substance use, most likely than not, was precipitated by a very distressing event/incident.

The complete advisory opinion is at Exhibit K.

APPLICANT’S REVIEW OF AIR FORCE EVALUATION

The Board sent a copy of the advisory opinion to the applicant on 5 Mar 20 for comment (Exhibit L), and the applicant replied on 19 Mar 20.  In his response, the applicant contends that his request is warranted.  He was proud to serve in the military and is remorseful for his actions and the stain it put on the Air Force and his career.  The stress of work and a failing marriage led to drinking and the use of cocaine.  The collateral damage from his court-martial created overwhelming hurdles in his life.  He lost his home to foreclosure and he was left with no medical care for his family.  He would like the Board to upgrade his discharge to honorable and restore his grade to technical sergeant.  This would allow him the opportunity to proudly display a shadow box as a testament of his military service and to be buried with full military honors.

The applicant’s complete response is at Exhibit M.

FINDINGS AND CONCLUSION

After reviewing all Exhibits, the Board remains unconvinced the evidence presented demonstrates an error or injustice.  While the Board notes the comments of the AFBCMR Psychiatric Advisor in favor of upgrading the applicant’s discharge to a general (under honorable conditions) discharge, the Board believes a preponderance of the evidence fails to substantiate the applicant’s contentions.  Specifically, the Psychiatric Advisor indicates the applicant’s substance use, most likely than not, was precipitated by a very distressing event/incident.  However, the Board does not find the evidence presented shows any correlation of the applicant’s misconduct being the direct result of any specific incident.  Additionally, in the interest of justice, the Board considered upgrading the discharge based on clemency; however, given the evidence presented, and in the absence of post-service information /criminal history, the Board finds no basis to do so.  Finally, the Board is satisfied that the application of liberal consideration does not warrant any relief.  Therefore, the Board recommends against correcting the applicant’s records.

The applicant has not shown a personal appearance, with or without counsel, would materially add to the Board’s understanding of the issues involved.

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-1996-02537-3 in Executive Session on 16 Sep 20:

, Panel Chair
, Panel Member
	, Panel Member

All members voted to correct the record.  The panel considered the following:

Exhibit F:	Record of Proceedings, w/ Exhibits A-E, dated 28 Mar 97.
Exhibit G:	Deny Reconsideration Letter, dated 30 May 13.
Exhibit H:	Application, DD Form 149, w/atchs, dated 19 Feb 19, 14 Mar 19 and 3 Nov 19.
Exhibit I:	Documentary evidence, including relevant excerpts from official records.
Exhibit J:	Post Service Clemency Letter, SAF/MRBC, dated 19 Jun 19.
Exhibit K:	Advisory opinion, AFBCMR Psychiatric Advisor, dated 28 Feb 20.
Exhibit L:	Notification of advisory, SAF/MRBC to applicant, dated 5 Mar 20.
Exhibit M:	Applicant’s response, dated 19 Mar 20.
Exhibit N:	Consolidated clarifying guidance, various dates.

Taken together with all Exhibits, this document constitutes the true and complete Record of Proceedings pertaining to Docket Number BC-1996-02537-3, as required by AFI 36-2603, paragraph 4.11.9.