RECORD OF PROCEEDINGS

IN THE MATTER OF:	DOCKET NUMBER: BC-2015-04924

	COUNSEL: 
	
			HEARING: NO

APPLICANT REQUESTS THAT:

His General (under honorable conditions) discharge be upgraded to Honorable with a narrative reason for separation of “Secretarial Authority,” and Separation Program Designator (SPD) code of “JFF.”

APPLICANT CONTENDS THAT:

He was discharged for misconduct without an opportunity for treatment of a newly diagnosed Intermittent Explosive Disorder (IED).  “These actions constitute a primafacie case of material error of discretion because the applicant’s chain of command ignored essential information regarding his possibility for rehabilitation.”  The applicant’s complete submission is at Exhibit A.

STATEMENT OF FACTS:

On 18 Nov 10, the applicant received a General (under honorable conditions) discharge.  For more information, see the excerpt of the applicant’s record at Exhibit B and the advisories at Exhibits C, D, E, F, and I.

On 18 May 12, the Air Force Discharge Review Board (AFDRB) voted unanimously to deny the applicant’s request to upgrade his discharge to Honorable, and to not change his reenlistment code either.  

AIR FORCE EVALUATION:

AFPC/DP2STM-SEP recommends denying the application.  The application was not filed within three years of the discovery of the alleged error or injustice, or with due diligence, should have been discovered.  Based on their review of the master of personnel records, the discharge was consistent with the procedural and substantive requirements of the discharge instruction and was within the discretion of the discharge authority. They found no evidence of an error or injustice in the discharge processing.  The complete advisory is at Exhibit C.

AFBCMR Psychiatric Consultant recommends granting the application.  If processed through the Disability Evaluation System (DES), the applicant’s case would then have received dual action consideration: a determination by Personnel Board of the Secretary of the Air Force Personnel Council (SAFPC) as to which basis for discharge was most appropriate, medical or administrative.  This psychiatric advisor opines that a medical discharge would be most appropriate, given the severity of the applicant’s mental health condition and its connection to his misconduct.  She recommends the Board obtain an advisory from the AFPC/DP2NP to gain their opinion on the DES entrance eligibility.  In the event AFPC/DP2NP does not concur with the opinion of this advisor on the subject of DES eligibility, the Board can upgrade the applicant’s discharge characterization to Honorable and reason for discharge to a Secretarial Authority.  The complete advisory is at Exhibit D.

SAF/MRBP (Discharge Review Board) recommends denying the application.  The applicant sought remedy through the Discharge Review Board (DRB) in the form of a records only review on 18 May 12.  He requested his discharge characterization be upgraded to Honorable and that his narrative reason be changed.  The DRB voted unanimously to deny his request and to not change his reenlistment eligibility code either.  The DRB case number was FD-2011-00261.  SAF/MRBP concurs with AFPC/DP2STM-SEP’s assessment and recommendation on this case.  The complete advisory is at Exhibit E.  

AFLOA/JAJM recommends denying the application.  Only so much of applicant’s requested relief which calls into question the legal sufficiency of his Non-Judicial Punishment (NJP) and court-martial is within the purview of this office.  The applicant’s commander, at the time of the NJP, had the best opportunity to evaluate the evidence in the case and to determine what action would best maintain good order and discipline.  The punishment decisions here were well within the limits of his commander’s authority and discretion.  Additionally, they found no evidence to suggest his court-martial was unsupported in law or fact.  They recommend that the Board deny the applicant’s requested relief on the basis of any legal error in his NJP actions.  The complete advisory is at Exhibit F.  

APPLICANT’S REVIEW OF AIR FORCE EVALUATION:

The Board copies of the Air Force evaluations to the applicant on 24 Oct 17 for comment (Exhibit G), and the applicant replied on 22 Nov 17.  Via counsel, the applicant refuted AFPC/DP2STM-SEP’s advisory contending it ignored counsel’s argument that essential mitigating evidence (applicant’s IED diagnosis) was ignored during the separation proceedings.  Counsel agreed with AFBCMR Psychiatric Consultant’s advisory opinion.  The applicant’s complete response is at Exhibit H.

ADDITIONAL AIR FORCE EVALUATION:

AFPC/DP2NP recommends denying the application.  Their advisory responds to the AFBCMR Psychiatric Consultant’s 25 May 17 advisory requesting that office’s opinion on the applicant’s DES entrance eligibility prior to his discharge.  In 2010 when the applicant was separated from the military DoDI 1332.38, Physical Disability Evaluation, E5.1.3.9.5, would have prohibited the applicant’s referral in the MEB as IED is an impulse control disorder and does not constitute a physical disability.  The applicant had a condition that was not eligible for MEB processing and was subject to administrative separation.  The complete advisory is at Exhibit I.  

APPLICANT’S REVIEW OF AIR FORCE EVALUATION:

The Board sent a copy of the Additional Air Force evaluation to the applicant on 30 Apr 18 for comment (Exhibit J), but has received no response.

THE BOARD CONCLUDES THAT:

1.  The application was not timely filed.

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 and injustice.  The Board concurs with the rationale and recommendation of AFPC/DP2STM-SEP, SAF/MRBP, AFLOA/JAJM, AFPC/DP2NP, and finds that a preponderance of the evidence does not substantiate the applicant’s contentions.  We note the AFBCMR Psychiatric Consultant’s recommendation to grant, however, we agree and concur with AFPC/DP2NP that in 2010 when the applicant was separated from the military, he had a condition that was not eligible for MEB processing and was subject to administrative separation.  The Board also notes the applicant did not file the application within three years after the alleged error or injustice was discovered, or should have been discovered, as required by Title 10, United States Code, Section 1552, and Air Force Instruction 36-2603, Air Force Board for Correction of Military Records (AFBCMR).  Moreover, the applicant has offered no plausible reason for the delay in filing the application.  The Board finds the application untimely and concludes it would not be in the interest of justice to excuse the delay.  Therefore, the Board recommends against correcting the applicant’s records.

THE BOARD RECOMMENDS THAT:

The applicant be informed the application was not timely filed; it would not be in the interest of justice to excuse the delay; 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-2015-04924 in Executive Session on 7 Aug 18:

, Panel Chair 
, Panel Member
, Panel Member

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

Exhibit A:	Application, DD Form 149, w/atchs, dated 5 Nov 15.
Exhibit B:	Documentary evidence, including relevant excerpts from official records.
Exhibit C:	Advisory opinion, AFPC/DP2STM, dated 15 Apr 16.
Exhibit D:	Advisory opinion, AFBMCR Psychiatric Consultant, dated 25 May 17.
Exhibit E:	Advisory opinion, SAF/MRBP, w/atch, dated 29 Aug 17.
Exhibit F:	Advisory opinion, AFLOA/JAJM, dated 17 Oct 17.
Exhibit G:	Notification of Advisories, SAF/MRBC to applicant, dated 24 Oct 17.
Exhibit H:	Applicant’s response, dated 22 Nov 17.
Exhibit I:	Advisory opinion, AFPC/DP2NP, dated 24 Apr 18.
Exhibit J:	Notification of Advisory, SAF/MRBC to applicant, dated 30 Apr 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.