ADDENDUM TO RECORD OF PROCEEDINGS

IN THE MATTER OF:	DOCKET NUMBER: BC-2015-02225-2

xxxxxxxxxxxx	COUNSEL: XXXXXXXXXXX

	HEARING REQUESTED: YES

APPLICANT’S REQUEST

The Board reconsider his request for the following:

1.	His Officer Grade Determination (OGD) which concluded his highest grade held of lieutenant colonel (O-5) be removed from his records.

2.	He be retired in the grade of colonel (O-6) and he receive associated back pay and benefits.

RESUME OF THE CASE

The applicant is a retired Air Force lieutenant colonel (O-5).  

On 10 Mar 16, the Board considered and denied his request to remove the OGD from his record and retire him in the grade of colonel; finding the applicant had provided insufficient evidence of an error or injustice to justify relief.  The Board was not persuaded that corrective action was warranted.   Counsel argued the applicant’s over eight years of service in the grade of colonel should outweigh his misconduct for which he received an Article 15 and the applicant’s circumstances were similar to a case in which retirement in the grade of colonel was permitted. However, the Board found no evidence presented to show that the statutorily required OGD action was inappropriate or that the determination was erroneous.  Furthermore, it was noted the Secretary of the Air Force has broad discretion when making findings of satisfactory or unsatisfactory service per 10 U.S.C. Section 1370.  Therefore, the Board agreed with the opinion and recommendation of SAF/MRBP and adopted the rationale expressed as the basis for its decision that the applicant failed to sustain his burden of proof of either an error or an injustice.

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 31 Mar 21, the applicant requested reconsideration of his request to remove the OGD from his record and retire him in the grade of colonel.  He now contends he suffered from Post-Traumatic Stress Disorder (PTSD) which affected his decision making process which was not known until after his retirement.  His career included several deployments in which he suffered head injuries in combat and witnessed atrocities and tragic events.  He was eligible to retire as a colonel in 2009 but decided to continue in his highly successful career.  In Feb 2017, the Department of Veterans Affairs (DVA) diagnosed him with PTSD noting he had a remarkable history of complex, repeat combat trauma.  Subsequent guidelines under Kurta and Hagel provide relief for members suffering from PTSD.  In his case, liberal consideration should be applied which will show the adverse actions against him were unjust due to his mental illness.

In support of his reconsideration request, the applicant submitted the following new evidence: (1) a Personal Statement; (2) DVA Medical Documents; and (3) Civilian Psychological Evaluation Report. 

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 for Personnel and Readiness (USD P&R) 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 26 Jan 22, the Board staff provided the applicant a copy of the liberal consideration guidance (Exhibit J).

AIR FORCE EVALUATION

The AFRBA Psychological Advisor completed a review of all available records and finds insufficient evidence to support the applicant’s request for the desired changes to his record.  The applicant did not submit any evidence or records that he had requested or received any mental health treatment in service for PTSD or any other mental health condition.  In the medical and mental health records available to the psychological advisor, there was no evidence the applicant had any mental health conditions in service.  The applicant submitted a psychological evaluation, arranged through counsel, with a civilian provider indicating the applicant meets Diagnostic and Statistical Manual of Mental Disorders (DSM-5) criteria for PTSD.  This psychological advisor took note that the diagnosis opined by the civilian psychologist was conducted and stated “in present time,” six years post-discharge, and not in reference to the applicant’s “snapshot in time” of military service, which is the matter in time of relevance to the applicant’s request.  The civilian psychologist is unable to render an opinion about the applicant during the “snapshot in time” of the applicant’s military service; there is no evidence of this doctor having been a treating provider of the applicant during his time in service.  There is no evidence, in the applicant’s Officer Performance Reports (OPR), statements by his leadership, or in any of the character references provided by the applicant that he was exhibiting symptoms of a mental health condition during his time in service.  The applicant noted he was a multiple award winner, highly stratified, top performer senior leader and submitted the evidence of the accolades he earned while in service.  The applicant did not submit evidence that his judgment or decision-making was impaired by a mental health condition.  In the applicant’s previous petition to the Board, neither the applicant nor his counsel made any claims of a mental health condition causing his misconduct.  Based on the available evidence, the psychological advisor opines the applicant’s symptoms of PTSD developed post-service (as stated in the applicant’s DVA records) at which time he appropriately sought treatment.  Having been a high-level leader, with the experience of command and Joint positions as the applicant detailed, and with a documented record of having received appropriate medical care for injuries and illnesses throughout his career in the Air Force, it is reasonable to expect that if the applicant had experienced a mental health condition in service, he would have exhibited symptoms that would have been noted in his medical or mental health records, he would have endorsed symptoms on preventive health screenings and sought further evaluation, and/or his performance would have been impacted.  The burden of proof is placed upon the applicant to substantiate claims and provide evidence.  Based on the available records and evidence submitted by the applicant, there is no evidence that a mental health condition caused or mitigated the applicant’s behavior, conduct or judgment in service.  There is no evidence that a mental health condition in service caused or mitigated the misconduct that lead to applicant’s OGD.  

Liberal consideration is applied to the applicant’s request due to the contention of a mental health condition. The following are responses to the four questions in the policy based on the available records for review:

1. Did the veteran have a condition or experience that may excuse or mitigate the discharge?
The applicant claims, through counsel, he suffered from PTSD which affected his decision-making and was not known until after his retirement.  There is no evidence or records to substantiate the applicant’s claim of a mental health condition in service.

2. Did the condition exist or experience occur during military service?
There is no evidence or records the applicant was diagnosed with or exhibited any symptoms of PTSD or any mental health conditions, at any time in service.

3. Does the condition or experience excuse or mitigate the discharge?
There is no evidence the applicant had any mental health conditions in service, therefore the discharge is not excused or mitigated.

4. Does the condition or experience outweigh the discharge?
Since there is no evidence the applicant had any mental health conditions in service, his condition does not outweigh his discharge.

The complete advisory opinion is at Exhibit H.

APPLICANT’S REVIEW OF AIR FORCE EVALUATION

The Board sent a copy of the advisory opinion to the applicant on 26 Jan 22 for comment (Exhibit I), and the applicant replied on 17 Feb 22.  In his response, counsel disagrees with the opinion from the psychological advisor stating the applicant’s case is supported by multiple psychological evaluations performed by both the DVA and civilian providers.  The advisory opinion does not adequately assess the applicant’s condition; instead it breathlessly relies on the lack of contemporaneous evidence contained in his record at the time of his service.  Furthermore, the opinion fails to consider that his service-connected PTSD was not diagnosed until after his retirement, a common occurrence.  The applicant concedes that he did not claim PTSD while in the service because neither he, nor his Air Force doctors, recognized the symptoms despite the fact they existed and affected his judgment and decision-making.  The opinion seemingly concedes that he does in fact suffer from PTSD but then refuses to acknowledge that it occurred during his service. This is a strange and a wrong-headed conclusion that fails to acknowledge all of the verified traumatic events that the applicant endured during his service.  If his PTSD did not originate from his service, where did it come from?  The psychological evaluation, arranged through counsel, with a civilian provider opined his PTSD was, as least as likely as not, a contributing factor to his poor decision making which led to his grade determination.  It is impossible to go back in time and assess the applicant six years ago, but it is medically acceptable to render an opinion as to the likely origin of a member’s PTSD and the likelihood of PTSD affecting a member’s decision-making.  As the Kurta guidance specifically notes, “Evidence [of PTSD] may also include changes in behavior…or inability to conform their behavior to the expectations of a military environment…unexplained social behavior changes; [or] relationship issues.  He experienced all of these during his service and they are well documented.

The applicant’s complete response is at Exhibit K.

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 remains unconvinced the evidence presented demonstrates an error or injustice.  The Board concurs with the rationale of the AFBCMR Psychological Advisor and finds a preponderance of the evidence does not substantiate the applicant’s contentions; specifically finding no evidence the applicant had any mental health conditions in service to excuse or mitigate his misconduct rendering his OGD invalid.  Furthermore, the Board applied liberal consideration to the new evidence submitted by the applicant; however the Board noted the psychological evaluation submitted by the applicant, was unable to render an opinion about the applicant during his military service and there is no evidence of this doctor having been a treating provider of the applicant during his time in service.  Therefore, it is not sufficient to overturn the previous Board’s decision.  Accordingly, the Board recommends against correcting the applicant’s records.

4.  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-2015-02225-2 in Executive Session on 23 Feb 22 and 20 Sep 22:

, Panel Chair
, Panel Member
, Panel Member

All members voted against correcting the record.  The panel considered the following:
Exhibit F:	Record of Proceedings, w/ Exhibits A-E, dated 10 Mar 16.
Exhibit G:	Application, DD Form 149, w/atchs, dated 31 Mar 21.
Exhibit H:	Advisory Opinion, AFRBA Psychological Advisor, dated 30 Jul 21. 
Exhibit I:	Notification of Advisory, SAF/MRBC to Applicant, dated 26 Jan 22.
Exhibit J:  Letter, SAF/MRBC, w/atchs (Post-Service Request and Liberal Consideration  
                  Guidance), dated 26 Jan 22.
Exhibit K: Applicant’s Response, dated 17 Feb 22.

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.