SECOND ADDENDUM TO RECORD OF PROCEEDINGS

IN THE MATTER OF:	DOCKET NUMBER: BC-2014-02290-3

XXXXXXXXXXXXXX	COUNSEL: XXXXXXXXXX

	HEARING REQUESTED: NO

APPLICANT’S REQUEST

The Board reconsider his request to change his narrative reason for separation, “Personality Disorder” to “Secretarial Authority” and to change his RE code “2C”, which denotes “Involuntary Separated with an Honorable Discharge; or Entry Level Separation without Characterization of Service.”

RESUME OF THE CASE

The applicant is a former Air Force airman first class (E-3).  

On 5 Nov 15, the Board considered and denied his request to change his narrative reason for separation, SPD code, and RE code; finding the applicant had provided insufficient evidence of an error or injustice to justify relief.  Advisory opinions from offices of primary responsibility concluded the appropriate discharge action was just and the coding on the applicant’s DD Form 214 was correct based on his mental health diagnosis.  The AFBCMR Clinical Mental Health Consultant concluded the applicant was correctly diagnosed with personality disorder and adjustment disorder which caused his inability to adapt to military life.

On 24 Jan 19, the Board again considered and denied his request to change his narrative reason for separation to “Secretarial Authority” and to change his RE code; finding the applicant had provided insufficient evidence of an error or injustice to justify relief.  Again, the AFBCMR Mental Health Consultant concluded the applicant was correctly diagnosed with personality disorder.

For an accounting of the applicant’s original request and the rationale of the earlier decision, see the Record of Proceedings case files at Exhibits G and K. 

On 28 Apr 21, the applicant requested reconsideration of his request to change his narrative reason for separation and his RE code.  He again contends through counsel, the AFBCMR did not consider several contentions raised in the initial appeal submitted in Jun 18, including that his adjustment disorder diagnosis should have taken precedence over his personality disorder diagnosis.  This diagnosis of borderline personality disorder did not comply with DOD regulations and therefore is illegal.  The Department of Veterans Affairs (DVA) correctly diagnosed his service connected disability as adjustment disorder.  He was misdiagnosed with personality disorder in the service and has been found by three psychologists that he does not have this disorder.  In support of his reconsideration request, the applicant submitted the following new evidence: (1) DVA Disability Rating; (2) Report to Congress of Defense Health Care; and (3) a personal statement. 

The applicant’s complete submission is at Exhibit L.

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 3 Sep 21, Board staff provided the applicant a copy of the liberal consideration guidance (Exhibit O).

AIR FORCE EVALUATION

AFBCMR Psychological Advisor recommends denying the applicant’s request to change his narrative reason to “Secretarial Authority” but does recommend changing his narrative reason to “Condition, Not a Disability.”  This psychological advisor has reviewed all available records and concurs with the opinions rendered from the two previous mental health advisories. At the snapshot in time of service, the applicant’s personality disorder was the primary condition influencing his behaviors and affected his ability to function appropriately in a military setting. It was correctly asserted the applicant also had an adjustment disorder diagnosis in service, but it was his personality disorder not adjustment disorder that was the primary condition based on his records.  The applicant’s legal counsel was correct that there no misconduct issues caused by his mental health condition, but there were behavioral and safety concerns the applicant had displayed and engaged in that had elevated his safety risk. The applicant had attempted suicide by ingesting pills necessitating medical care, engaged in self-harming behaviors of making superficial cuts to his wrist and had recurring passive suicidal ideation during service. These behaviors were in response to his family and relationship stressors, in which he was unable to cope effectively leading to poor, impaired, and questionable judgment. These behaviors were identified as traits of his personality disorder and not by symptoms of his adjustment disorder. These demonstrated behaviors in response to his identifiable stressors impaired his ability to function appropriately in a military environment, as he was unable to make proper decisions to ensure his safety and others, leading to his discharge from service. There is no requirement his mental health condition have to result in misconduct issues to be discharged but rather, how his condition impacts his overall functioning and behaviors. His condition was considered to be unsuiting and disqualifying for military service.  

The applicant and his legal counsel had submitted post service evaluations disputing his personality disorder diagnosis. It is reminded the applicant was seen a total of 38 times for over a year’s period in service by an interdisciplinary team of duly qualified mental health providers deriving at the personality disorder diagnosis. His post service providers had seen him a few times to negate a diagnosis that typically takes a much longer period of time to produce. His military providers were able to observe and analyze his behaviors and reactions during times of significant stress versus goal-oriented and directed evaluations post service. The situation in which he was evaluated during and post service are not comparable. Furthermore, a review of his recent mental health treatment records from the VA reported from two providers on 24 September 2020 and 27 July 2021 respectively, he had Cluster B traits. Borderline personality disorder is categorized under Cluster B - a group of disorders, traits, and symptoms that are unpredictable, dramatic or emotional responses to stressors and situations. The fact that at least two of his VA mental health providers detected his Cluster B personality traits several years post discharge and in present in time, provides credence the applicant had a valid and bona fide personality disorder diagnosis, originally diagnosed in service. Personality disorders are enduring and pervasive patterns of maladaptive behaviors and his behaviors during and post service aligns with the definition and diagnostic criteria for borderline personality disorder.  The applicant and his legal counsel proclaim his service connection for Adjustment Disorder by the VA was evidence this condition was his primary condition in service. This evidence is insufficient to support their claim. The objective of VA service connected conditions under Title 38, U.S.C. is to offer compensation for any medical condition with an established nexus with military service, without regard to its impact upon a member’s fitness to serve, the narrative reason for release from service, or the length time transpired since the date of discharge. The VA may also conduct periodic reevaluations for the purpose of adjusting the disability rating awards as the level of impairment from a given medical condition may vary [improve or worsen] over the lifetime of the veteran. The VA’s service connected conditions do not establish or identify a primary condition experienced during service. Additionally, the VA does not offer compensation or ratings to personality disorders as these are considered to be developmental disorders, but they may offer compensation for primary, secondary, and even tertiary conditions. The applicant was given compensation for his secondary condition of an adjustment disorder.  The applicant and legal counsel are requesting to change his narrative reason to “Secretarial Authority” due to adverse negative consequences of employment opportunities and stigma. This psychological advisor finds no evidence his discharge was made in error or was unjust to the applicant. However, recognizing potential stigma of this condition listed on his DD Form 214, the Board may choose to change his narrative reason for discharge to “Condition Not A Disability”.  This characterization not only serves to provide some relief to the applicant but also is the most appropriate basis of his discharge based on liberal consideration. This narrative reason of “Condition Not A Disability” would accurately reflect his unsuiting personality disorder diagnosis and condition while maintaining his privacy and confidentiality.  A different type of narrative reason of “Secretarial Authority” was requested but is not recommended by this psychological advisor due to his history of exhibiting poor judgment and maladaptive behaviors, and elevated safety risk during and post service. The applicant has not submitted any recent mental health records to support his safety risk has been mitigated and/or his mental health condition has achieved stabilization post service for consideration. His recent VA treatment records still indicate he continued to have difficulties coping with his symptoms. Therefore, a change to “Condition Not A Disability” is the most appropriate and accurate reason for his discharge.

The complete advisory opinion is at Exhibit M.

APPLICANT’S REVIEW OF AIR FORCE EVALUATION

The Board sent a copy of the advisory opinion to the applicant on 24 Aug 21 for comment (Exhibit N), but has received no response.

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 concludes the applicant is the victim of an error or injustice.  The Board concurs with the rationale and recommendation of the AFBCMR Psychological Advisor and finds a preponderance of the evidence substantiates the applicant’s contentions in part.  The Board applied liberal consideration to the new evidence submitted by the applicant and finds that the adverse negative consequences of employment opportunities and potential stigma that the narrative reason of “Personality Disorder” listed on his DD Form 214 may have, the Board finds sufficient reason to justify granting a change to his narrative reason.  However, for the remainder of the applicant’s request to change his RE code of 2C, the evidence presented did not demonstrate an error or injustice, and the Board therefore finds no basis to recommend granting that portion of the applicant’s request.  Therefore, the Board recommends correcting the applicant’s records as indicated below.

RECOMMENDATION

The pertinent military records of the Department of the Air Force relating to the APPLICANT be corrected to show his DD Form 214, Certificate of Release or Discharge from Active Duty, Block 28, Narrative Reason for Separation be changed to “Condition, Not A Disability,” under the provisions of AFI 36-3208, Administrative Separation of Airmen.

However, regarding the remainder of the applicant’s request, the Board recommends informing the applicant 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-2014-02290-3 in Executive Session on 2 Nov 21:

, Panel Chair
, Panel Member
, Panel Member

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

Exhibit G: Case #1 Record of Proceedings, w/ Exhibits A-F, dated 5 Nov 15.
Exhibit K:	Case #2 Addendum Record of Proceedings, w/ Exhibits H-J, dated 24 Jan 19.
Exhibit L:	Application, DD Form 149, w/atchs, dated 28 Apr 21.
Exhibit M:	Advisory Opinion, AFBCMR Psychological Advisor, dated 23 Aug 21. 
Exhibit N:	Notification of Advisory, SAF/MRBC to Applicant, dated 24 Aug 21.
Exhibit O: Letter, SAF/MRBC (Liberal Consideration), dated 3 Sep 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.