RECORD OF PROCEEDINGS

IN THE MATTER OF:	DOCKET NUMBER: BC-2015-04613

	COUNSEL: YES

	HEARING: NO

APPLICANT REQUESTS THAT:

Through counsel, his Under Honorable Conditions (General) discharge be upgraded to Honorable.

APPLICANT CONTENDS THAT:

His administrative separation for minor disciplinary infractions was unjust because he was suffering from medically documented mental health concerns, to include Post-Traumatic Stress Disorder (PTSD) and Traumatic Brain Injury (TBI), which led to his misconduct.  His conditions caused hospitalization on several occasions for suicide attempts.  His command denied his requests for additional time to confer with counsel.  The side effects from his medications directly impacted his negative behavior (sleeping at work, missing appointments) and hampered his ability to comprehend his options available during his discharge.  His command was the root cause of his issues.  The applicant’s complete submission is at Exhibit A.

STATEMENT OF FACTS:

On 6 Dec 05, the applicant entered the regular Air Force.

On 7 Mar 06, the applicant received an Article 15, non-judicial punishment (NJP), for failure to go (Article 86) and failure to obey an order (Article 92).

Between 5 May 08 – 10 Apr 12, the applicant received the following: two records of individual counseling, two letters of counseling, one letter of admonition, and seven letters of reprimand. 

During the reporting period from 7 Aug 08 through 6 Aug 09, the applicant deployed to Iraq.  

On 14 Feb 12, the applicant’s squadron commander referred the applicant under an emergency commander directed mental health evaluation following hospitalization for a suicide attempt on 6 Feb 12.  The base clinical psychologist’s evaluation revealed the applicant was not an imminent risk and responsible for his behavior.  

On 5 Apr 12, the applicant received an Article 15 for two violations of failure to go (Article 86).  

On 12 Apr 12, the applicant’s Area Defense Counsel (ADC) requested a delay to make his appeal until after his release from Spring Mountain Treatment Center and subsequently, his commander denied his appeal.  

On 20 Apr 12, the applicant was notified by his commander he was being recommended for an Under Other Than Honorable Conditions discharge.  

On 1 May 12, the applicant provided a response requesting a General discharge.  

On 2 May 12, the applicant’s squadron commander recommended to the wing commander he be discharged for minor disciplinary actions and on 4 May 12, the discharge was found to be legally sufficient but with an Under Honorable Conditions (General) discharge.  

On 7 May 12, the wing commander approved the discharge.  

On 11 May 12, the applicant was discharged as an Airman First Class with a Under Honorable Conditions (General) character of service and a narrative reason for separation of Misconduct (Minor Infractions).  

On 13 May 15, the Air Force Discharge Review Board denied the applicant’s request for a discharge upgrade concluding the discharge was consistent with the procedural and substantive requirements of the discharge regulation, was within the discretion of the discharge authority, and that the applicant was provided full administrative due process.  

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 memoranda are at Exhibit H. 

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

AIR FORCE EVALUATION:

SAF/MRBP recommends the AFBCMR mental health specialist review the new documentation for any indication the applicant’s mental health issues contributed to his misconduct.  The DRB considered a request for a discharge upgrade on 13 May 15.  Although the applicant’s service treatment record (STR) was not available, the DRB considered the medical records provided by the applicant to include his PTSD diagnosis. A physician with specialized training on mental health disorders reviewed the case file and was a DRB member.  Based on the advice of that physician, as well as the review of the applicant’s records, the DRB determined that there was no documented evidence of TBI or other mental health issues that contributed to the applicant’s misconduct and there was no evidence of inequity or impropriety that warranted an upgrade to the applicant’s discharge.  While the DRB gave due consideration to the applicant’s mental health issues and the documentation presented at the time, the applicant has presented new information in support of his application.  The complete advisory is at Exhibit C. 

AFLOA/JAJM recommends a medical review of the new evidence provided to demonstrate causation for the applicant’s misconduct and/or proof of incapacity to appreciate adverse actions taken against him.  To the extent that these conditions are ruled out, nothing about the applicant’s 2012 NJP is in error or legally deficient.  The record reflects that the applicant was afforded all procedural due process rights and that two independent legal reviews confirmed that the evidence supported the alleged misconduct and the punishment imposed was within the statutory authority of the imposing commander.  The applicant had adequate time to consult with legal counsel, particularly in light of the fact that he was served with NJP for the same offense twice, over the course of two weeks, during which time he had an opportunity to consult with counsel on both actions.  The complete advisory is at Exhibit D.

The AFBCMR Psychiatric Advisor finds sufficient evidence to warrant strong consideration for relief.  After reviewing the applicant’s responses to disciplinary action, it is evident that he experienced recurring trauma due to his perceived abuse at the hands of his peers and his command.  His response was to develop an extremely high level of anxiety that he expressed through physiological complaints.  First, he had the sleep disorder and then he started with the pain complaints.  At times, these complaints would have some basis in reality and he would be placed on limited duty while he was recovering from whatever treatment and then there were times where they appeared to be ignored.  This led to further distortion of his sleep wake cycle, which only increased his anxiety.  

He did not want his command to know about his anxiety because he would have lost self-esteem, but he really wanted to be injured just enough to be medically discharged.  The focal point of his anxiety was facing a deployment and being in a combat setting leading to a diagnosis of generalized anxiety disorder.  The anxiety, worry, or physical symptoms caused clinically significant distress or impairment in social, occupational, or other important areas of functioning.  

An individual suffering from generalized anxiety, the pain experience is very real to them this applicant went to his providers and reported his experiences of being in physical pain and emotional pain from being traumatized at the hand of his command, but he was ignored because for the most part the focus was on his physical ailments.  As time went on and his condition deteriorated to the point where he was getting depressed as well, he started drinking and using more pain medications and became further enraged by the lack of response to his needs.  This behavior further alienated him from his peers and his command.  He also began acting out by neglecting things (appointments, tools or being delinquent in paying his Star card account).  The applicant also learned, that the only way to get the response he wanted, was to become more and more enraged and act out by threatening suicide or taking an overdose.  The only treatment he had to deal with this anxiety was when he was in Iraq where his doctor diagnosed him with an adjustment disorder with anxiety and put him into a program to deal with the stress of being in a combat environment.  By 2011, his complaints were so many that he was limited to light duty and should have been eligible for a Medical Board but because of the attitude that he conveyed there was resistance to considering him for a Medical Board.  He then was self-medicating with the various medications from his various providers.  His combinations of medications resulted in his inability to get up in the morning.

There is also clear evidence that there is at the very least traits of a personality disorder.  Although it is hard to determine whether he had these traits prior to his entrance into the military or he developed these traits while in the military, there is evidence that some of actions are the result of his personality disorder and not just his anxiety.  There is also the drama that he presents with including that he had to be discharged from the psychiatric hospital, because of inappropriate behavior such as threatening to harm his supervisor.  Another example is his taking an overdose of medication at the hospital in front of the guard.  He was finally discharged because of some of this behavior.  His testing, while in the hospital, also indicated some attributes of antisocial personality disorder. 

This psychiatric consultant does recognize that this applicant is rated with PTSD at 100% in an evaluation done at least two years post discharge, but at the time of discharge he was not presenting with PTSD.  PTSD was not the cause of his discharge.  He was repeatedly evaluated for that condition and the symptomatology was not present.  Accordingly, this advisor opines that there were mental health-related mitigating factors in a preponderance of the applicant’s disciplinary infractions.

APPLICANT’S REVIEW OF AIR FORCE EVALUATION:

The Board sent a copy of the Air Force evaluation to the applicant on 6 Mar 17 and on 14 Sep 17 for comment (Exhibits F and G), but has received no response.

THE BOARD CONCLUDES THAT:

1.  The application was timely filed.

2.  The applicant exhausted all available avenues of non-judicial relief before applying to the Board.

3.  After reviewing all Exhibits, the Board concludes the applicant has presented evidence sufficient to demonstrate an error or injustice regarding part, but not all, of his request.  In particular, the applicant has provided significant evidence to substantiate the applicant’s contention that his mental health conditions and the side effects from his medications were contributing factors to some, but not all of his negative conduct.  While the Board notes the AFBCMR Psychiatric Advisory found sufficient evidence to warrant strong consideration for full relief, the Board could not dismiss some of the applicant’s misconduct for which the evidence failed to establish a connection to his mental health conditions.  However, the Board did find sufficient evidence to justify appropriate and fitting relief by changing the applicant’s narrative reason for separation, separation code, and reentry code.  Therefore, the Board recommends correcting the applicant’s records as indicated below.

THE BOARD RECOMMENDS THAT:

The pertinent military records of the Department of the Air Force relating to APPLICANT be corrected to show that the DD Form 214, Certificate of Release or Discharge from Active Duty, issued in conjunction with his May 11, 2012 discharge, be amended to read “JFF” in Block 26, Separation Code, “3K” in Block 27, Reentry Code, and “Secretarial Authority” in Block 28, Narrative Reason for Separation.

However, regarding the remainder of the applicant’s request, the Board recommends the applicant be informed the evidence did not demonstrate material error or injustice and the application could 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-2015-04613 in Executive Session on 1 Nov 18:

Panel Chair
Panel Member
Panel Member

All members voted to correct the record in part, as indicated.  The panel considered the following:

Exhibit A:	Application, DD Form 149, w/atchs, dated 27 Oct 15.
Exhibit B:	Documentary evidence, including relevant excerpts from official records.
Exhibit C:	Advisory opinion, SAF/MRBP, received 13 May 16.
Exhibit D:	Advisory opinion, AFLOA/JAJM, dated 3 Jun 16.
Exhibit E:	Advisory opinion, AFBCMR Psychiatric Advisor, dated 3 Apr 17.
Exhibit F:	Notification of Advisories, SAF/MRBC to applicant, dated 6 Mar 17.
Exhibit G:	Notification of Advisories, SAF/MRBC to applicant, dated 14 Sep 17.
Exhibit H:	Clarifying Guidance, various dates. 

Taken together with all Exhibits, this document constitutes the true and complete Record of Proceedings of Docket Number BC-2015-04613 required by AFI 36-2603, paragraph 4.11.9.