ADDENDUM TO RECORD OF PROCEEDINGS

IN THE MATTER OF:	DOCKET NUMBER: BC-2015-00055

	COUNSEL: YES

	HEARING: NO

APPLICANT REQUESTS THAT:

The applicant requests that the Board reconsider his request to change his under other than honorable conditions discharge to honorable; change his narrative reason for separation (and corresponding separation code) to secretarial authority; be added to the retired list, retroactive to June 1972, with back pay.

RESUME OF THE CASE:

On 12 Nov 15, the Board considered and denied a request for correction of military records submitted by the applicant, finding that he had provided insufficient evidence of an error or injustice to justify relief.  The Board then considered upgrading the applicant’s discharge based on clemency yet the evidence submitted insufficient in attesting to the applicant’s post-service accomplishments to warrant clemency.  Finally, the Board considered the recent Secretary of Defense guidance indication liberal consideration should be given to requests to upgrade discharges where there is a claim of a Post-Traumatic Stress Disorder (PTSD) diagnosis.  However, the Board did not find a causal nexus between his PTSD and his criminal behavior.  

For an accounting of the applicant’s original request and the rationale of the earlier decision, see the AFBCMR Letter and Record of Proceedings at Exhibit F.

On 15 Jun 16, through counsel, the applicant requested reconsideration of his request to upgrade his discharge and be provided a retroactive retirement.  He again contends that his PTSD, relating to his combat during the Vietnam War, went undiagnosed and was certainly an impetus for his misconduct that led to his discharge.  In his current submission, he provides new evidence form his mental health provider that states the applicant was suffering from PTSD during his career.  In her professional opinion, the applicant began to experience PTSD, outrage, excessive guilt, and moral injury after being in a combat zone for an extended period.  He was feeling helpless to stop the killing of American soldiers and decided to disable Army helicopters by removing their communications systems; thereby, stopping them from flying into danger.  His intent was not to sell the equipment on the black market, but rather was only aiming to disable aircraft during the Vietnam conflict.  The applicant’s complete submission is at Exhibit G.

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 H.

AIR FORCE EVALUATION:

The AFBCMR Psychiatric Advisor recommends denying the application, finding insufficient evidence to warrant the desired change to the record.  There is no evidence of PTSD symptoms at the time of discharge.  Quite to the contrary, there is clear evidence that the applicant did not have symptoms as noted by the psychiatric evaluation done at his time of admission and release from jail.  Furthermore, the Secretary of Defense guidance clearly states that liberal consideration does not mandate an upgrade.  It also states that premeditated misconduct is not generally excused by a mental health condition.  Clearly, stealing equipment would be viewed as a premeditated act.  The complete advisory is at Exhibit I.

APPLICANT’S REVIEW OF AIR FORCE EVALUATION:

The Board sent a copy of the Air Force evaluation to the applicant on 30 Apr 18 for comment (Exhibit J), and the applicant replied, after an extension request, on 18 Jun 18.  In his response, the applicant’s counsel contends the applicant did suffer from PTSD during service.  In support of his claim, he provides a letter from the applicant’s treating psychologist stating his markers for PTSD existed.  The Department of Veterans Affairs looks in the military record for PTSD “markers” or a significant change in personality exhibited by the service member.  In the applicant’s case, his distinct personality change from a devoted and decorated war hero to the destruction of military assets occurred in service.  It is completely within the realm of common combat-related PTSD to see the pattern of behavior exhibited by the applicant.  Furthermore, the mental health assessments done in 1967 and 1973 would not have included an assessment or rudimentary understanding of PTSD – a complicated disorder that continues to be updated with every new edition of the Diagnostic and Statistical Manual.  The applicant’s complete response is at Exhibit M.

THE BOARD CONCLUDES THAT:

After reviewing all Exhibits, the Board remains unconvinced the evidence presented demonstrates an error or injustice and therefore finds no basis to recommend granting the requested relief.    The Board concurs with the rationale and recommendation of AFBCMR Psychiatric Advisor and again finds that a preponderance of the evidence does not substantiate the applicant’s contentions.  The Board notes the evidence provided clearly shows the applicant is suffering from PTSD today.  However, the Board agrees with the Psychiatric Advisor and the supplemental guidance to the Board that even if the applicant’s PTSD went undiagnosed during military service, his premeditated misconduct in this case is not generally excused by mental health conditions.  The Board has been instructed to exercise caution in assessing the causal relationship between asserted mental health conditions and premeditated conduct, and in the applicant’s case, we agree with the findings of the previous board that the applicant failed to provide sufficient evidence to conclude there was a causal nexus between his PTSD and his criminal behavior.  Therefore, the Board recommends against correcting the applicant’s records.

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-2015-00055-2 in Executive Session on 1 Nov 18.

Panel Chair
Panel Member
Panel Member

All members voted not to correct the record.  The panel considered the following:

Exhibit F:	Record of Proceedings, w/ Exhibits A-E, signed 5 May 16.
Exhibit G:	Application, DD Form 149, w/atchs, dated 15 Jun 16.
Exhibit H:	Consolidated Clarifying Guidance, various dates.
Exhibit I:	Advisory opinion, AFBCMR Psychiatric Advisor, dated 13 Apr 18. 
Exhibit J:	Notification of Advisory, SAF/MRBC to applicant, dated 30 Apr 18.
Exhibit K:	Email, Counsel, dated 18 May 18.
Exhibit L:	Letter, AFBCMR, dated 30 May 18.
Exhibit M:	Email, Counsel, w/atchs, dated 18 Jun 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.