RECORD OF PROCEEDINGS

IN THE MATTER OF:	DOCKET NUMBER: BC-2014-04843

	COUNSEL: NONE
	
	HEARING: YES

APPLICANT REQUESTS THAT:

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

His DD Form 214, Certificate of Release or Discharge from Active Duty, Block 26 – Separation Code, be corrected to reflect a code associated with an honorable discharge.

APPLICANT CONTENDS THAT:

His discharge was a result of unit hazing and an unprofessional environment.  When faced with corrective actions the unit failed to utilize any rehabilitative tools and chose the easiest course of action, his discharge.  

He graduated both basic and technical training with a clean record, while holding leadership roles.  However, four months after his arrival at his first duty station he surprisingly received two Letters of Counseling (LOC).  He voluntarily sought advice from a psychologist because of his behavior.  It was determined that his symptoms were that of a depressed mood.  In August 2003, he received additional disciplinary action, to include an Unfavorable Information File (UIF).  Several negative situations arose involving higher-ranking individuals and co-workers.  At this time, he suspected members thought differently of him, which negatively affected his reputation.  As such, he requested reassignment but it went unconsidered.  

His negative issues culminated in 2004 when he received a Letter of Reprimand (LOR) for disrespecting a non-commissioned officer (NCO).  Upon receipt of the LOR, he became extremely frustrated and wrote an unprofessional, disrespectful rebuttal.  Subsequently, his actions led to a discharge for unsatisfactory performance.  He has since realized his actions were wrong.  

He disagrees with the reasoning for his discharge.  As annotated in AFI 36-3208, Administrative Separation of Airmen, a commander’s efforts to rehabilitate an airman may include formal and informal counseling, control roster action, punishment under Article 15, Uniform Code of Military Justice (UCMJ), a change in duty assignment, demotion, additional training for duty, retraining, or other administrative actions.  He strongly feels that he lacked proper rehabilitation opportunities.  He requested change of his unit, a permanent change of station, and separation under Palace Chase, all of which denied.  

Since leaving the Air Force, he steadily worked, graduated with both a Bachelor’s and Master’s degrees.  He is a successful individual who has maintained a clean record free of drugs, alcohol, and criminal activity.  

By amendment, the applicant contends he was hastily and inappropriately discharged from the Air Force and can prove that he would have performed well in the military had he not been discharged prematurely.  He would like to serve again.  

Three final arguments should be considered:  1)  His commander did not dutifully consider his health records in determining a course of action and instead determined discharge as the only option.  His medical records document an Adjustment Disorder with Depressed Mood and this disorder stemmed from a hostile work environment.  He has health records that show his meetings with a base psychologist disclosing he had an adjustment disorder with depressed mood and the recommended attendance to a stress management course.  He was discharge the day after completing the course.  The evidence shows no medical documents, psychological stress, or Adjustment Disorder with Depressed Mood were considered prior to his discharge.  His medical condition led to his infractions, resulting in a discharge.  His case is similar to that of BC-2012-05578, in which the member also gave indication of the non-consideration for his medical records prior to discharge.  The AFBCMR recommended the individual records be corrected to reflect an honorable discharge; 2)  An inequity exits that warrants an injustice to be remedied because evidence from two other AFBCMR reviews, BC-2013-01860 and BC-2014-00582 have similar circumstances as his.  There is a noted Summary Court-Martial conviction, in which the members received an upgrade to an honorable discharge; and 3)  If impropriety and inequity cannot be found, post-service contributions prove a successful transition to civilian life and should be considered for clemency.  His misconduct was not so egregious to warrant him to continue suffering from the stigma of a general discharge.  

The applicant’s complete submission is at Exhibit A.

STATEMENT OF FACTS:

The applicant initially entered the Regular Air Force on 9 July 2002.  

On 1 April 2004, the applicant’s commander recommended that he be discharged from the Air Force under the provisions of Air Force Policy Directive (AFPD) 36-32, Military Retirements and Separations, and AFI 36-3208 for unsatisfactory performance.  The applicant had several instances of misconduct as evidenced by a Summary Court-Martial conviction, the establishment of an UIF, three LORs, and four LOCs. 

On 7 April 2004, the discharge action was found legally sufficient, and the discharge authority approved the recommendation for discharge.

On 26 April 2004, the applicant received a general (under honorable conditions) discharge, with a narrative reason for separation of “Unsatisfactory Performance”, along with a separation code of “JHJ” (unsuitability (reason unknown)/unsatisfactory performance, and reentry (RE) code of “2M” (servicing sentence or suspended court-martial sentence).  

On 14 October 2010, the Air Force Discharge Review Board (AFDRB) considered the applicant’s request to upgrade his discharge to honorable.  The AFDRB concluded his discharge was consistent with the procedural and substantive requirements of the discharge regulation and was within the discretion of the discharge authority.  The applicant was provided full administrative due process.  

On 6 December 2012, the AFDRB considered the applicant’s appeal for an upgrade of his discharge to honorable, to change the reason and authority for the discharge, and to change his reenlistment code.  The Board denied the applicant’s appeal and concluded that the discharge was consistent with the procedural and substantive requirements of the discharge regulation and was within the discretion of the discharge authority and the applicant provided full administrative due process.  The Board further concluded that there exists no legal or equitable basis for an upgrade of his discharge and determined the discharge should remain unchanged.  

On 3 December 2014, a request for post-service information was forward to the applicant for comment within 30 days (Exhibit C).  

On an undated letter, the applicant requested until 30 April 2015 to provide additional documentation (Exhibit D).  

On 28 May 2015, the applicant requested an extension through 31 July 2015 to provide additional documentation (Exhibit H).  

On 8 July 2015, the applicant’s case was administratively closed (Exhibit I).  

On 16 October 2016, via DD Form 149, Application for Correction of Military Record (Exhibit A (2), the applicant requested his case be reopened.  He submitted documentation, which indicates that according to the Criminal Justice Information Services (CJIS) Division of the Federal Bureau of Investigation (FBI), a search of the fingerprints provided by the applicant revealed no prior arrest data at the FBI, effective 7 May 2015 (Exhibit G).  In addition, he submitted a pre-employment/security screening and character letters of support.  

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

AIR FORCE EVALUATION:

AFPC/DPSOR recommends denying the application. The applicant’s discharge was consistent with the procedural and substantive requirements of the discharge instruction and was within the discretion of the discharge authority.  

The applicant received several opportunities to overcome his deficiencies but efforts met with no success.  The commander concluded that his repeated failures to conform to military standards put a burden on the unit and their attempts to correct his behavior.  Finally, the commander concluded that the applicant lacked the desire or motivation to comply with military regulations and standards and as a result, initiated discharge actions.  The SPD code and narrative reason for separation are correct as indicated.  

In accordance with AFI 36-3208, a general service characterization is warranted when significant negative aspects of the airman’s conduct or performance outweigh positive aspects of the airman’s military record.  It was correctly concluded that repeated incidents of misconduct in such a short timeframe outweigh any positive aspects of the applicant’s relatively brief Air Force career.  

The complete advisory is at Exhibit E.

APPLICANT’S REVIEW OF AIR FORCE EVALUATION:

The Board sent a copy of the Air Force evaluation to the applicant on 27 February 2015 for comment (Exhibit F), but has received no response.
ADDITIONAL AIR FORCE EVALUATION:

The AFBCMR Psychiatric Advisor recommends the Board may consider an upgrade of discharge and a change in reason for discharge to Secretarial Authority, based solely upon Clemency.  However, the Psychiatric Advisor finds the evidence insufficient to warrant the desired change of the record.  The applicant’s medical records confirm that he struggled with depression.  Unfortunately, it appears that following the initial encounter with behavioral health providers in May of 2003, the applicant was not enrolled/was not engaged in treatment.  The case file is void of any additional mental health records until 26 January 2004.  By the time, the applicant re-engaged in treatment, his misconduct had been committed and he was awaiting for the repercussions for his actions.  The applicant’s diagnosis was Adjustment Disorder with Depressed Mood, which is not a compensable disability by the military Disability Evaluation System.  

While a recent revision acknowledges that an individual with a Chronic Adjustment Disorder renders the individual eligible for processing via a Medical Evaluation Board (MEB), the applicant’s discharge predated contemporary policy change.  When it has been determined that an Adjustment Disorder is so severe as to significantly interfere with an individual’s ability to perform military service, the member is vulnerable for an involuntary discharge, under authority of AFI 36-3208.  Furthermore, in accordance to AFI 36-3208, discharge under this provision is not appropriate if the airman's record would support discharge for another reason, such as misconduct or unsatisfactory performance.  

In cases in which a mental health condition, including post-traumatic stress disorder (PTSD); traumatic brain injury (TBI); or sexual assault/harassment may be reasonably determined to have existed at the time of discharge, those conditions will be considered potential mitigating factors in the misconduct that caused the characterization of service in question.  When weighing evidence of mitigation in cases in which serious misconduct precipitated a discharge with a less than Honorable characterization of service caution must be exercised by carefully considering the likely causal relationship of symptoms to the misconduct.

The applicant’s depression and possible demoralization by his allegedly hostile work environment could certainly result in irritability and impulsivity.  However, the nature of the applicant’s misconduct indicates that his actions were not completely impulsive.  

The AFBCMR Psychiatric Advisor’s complete advisory is at Exhibit J.

APPLICANT’S REVIEW OF ADDITIONAL AIR FORCE EVALUATION:

The Board sent a copy of the Air Force evaluation to the applicant on 29 June 2018 for comment (Exhibit K), but has received no response.

THE BOARD CONCLUDES THAT:

1.  The application was not timely filed; however, it is in the interest of justice to excuse the delay.

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 or injustice.  It appears the discharge was consistent with the substantive requirements of the discharge regulations and was within the commander’s discretion.  Nor was the discharge unduly harsh or disproportionate to the offense committed.  The applicant contends his documented adjustment disorder caused by unit hazing and an unprofessional environment, led to his discharge for misconduct.  We note the applicant has cited three previous decisions by this Board to grant relief, essentially asserting the circumstances are significantly close enough that similar consideration should be applied to his case and relief be granted.  We note that each case presented before this Board is considered on its own merits and precedent does not bind us.  While we do strive for consistency in the manner in which evidence is evaluated and analyzed, we are not bound to recommend relief in one circumstance simply because the situation being reviewed appears similar to another case.  In the initial case cited by the applicant, the Board granted relief by changing the narrative reason for separation to “Secretarial Authority” rather than “Misconduct” and furnished an Honorable Discharge certificate because the member’s records contained medical documentation identifying the likely source of his behavior was the result of not being within the span of his control without medication.  In the second cited case, the AFDRB upgraded a member’s general discharge to an honorable discharge because the discharge was inconsistent with the procedural requirements of the discharge regulation.  In the final cited case, while the member’s narrative reason for separation was for “Unsatisfactory Performance” he was issued an honorable discharge and his erroneously issued re-entry code was administratively corrected.  The circumstances of these three cited cases differ from the case under review.  We note in the initial case of comparison, relief was granted because the member’s records contained medical documentation identifying the likely source of his behavior.  While the applicant has been diagnosed with Adjustment Disorder with Depressed Mood, his record support discharge for his unsatisfactory performance.  In the second case, unlike the applicant’s case there was inconsistencies with the procedural requirements.  In the final case, there was no change in the applicant’s initial determination for separation.  Therefore, the applicant is not similarly situated to any of these applicants and precedent is not a controlling issue in our decision on the instant case.  In the interest of justice, the Board considered upgrading the discharge based on clemency; however, given the evidence presented, the Board finds no basis to do so.  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 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.

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-2014-04843 in Executive Session on 23 October 2018:

Panel Chair 
Member
Panel Member

All members voted not to correct the record.  The panel considered the following evidence pertaining to AFBCMR Docket Number BC-2014-04843:

Exhibit A:	Application, DD Form 149, w/atchs, dated 28 October 2014 and Letter, w/atchs, dated 16 October 2016.  
Exhibit B:	Documentary evidence, including relevant excerpts from official records.
Exhibit C:	Post Service Clemency Letter, w/atch, dated 3 December 2014.
Exhibit D:	Applicant’s response undated.
Exhibit E:	Advisory opinion, AFPC/DPSOR, dated 31 December 2014.
Exhibit F:	Notification of Advisory, SAF/MRBR to applicant, dated 27 February 2015.
Exhibit G:	Applicant’s CJIS/FBI response, dated 7 May 2015 [WITHDRAWN].
Exhibit H:	Applicant’s response, dated 28 May 2015.
Exhibit I:	Letter, AFBCMR to applicant, dated 8 July 2015.  
Exhibit J:	Advisory opinion, Psychiatric Advisor, dated 23 May 2018.
Exhibit K:	Notification of Advisory, SAF/MRBR to applicant, dated 19 June 2018.

Taken together with all Exhibits, this document constitutes the true and complete Record of Proceedings required by AFI 36-2603, paragraph 4.11.9.