RECORD OF PROCEEDINGS

IN THE MATTER OF:	DOCKET NUMBER: BC-2017-00411

xxxxxxxxx	COUNSEL: XXXXXXXXXXX

(AKA) XXXXXXXX 	HEARING REQUESTED: YES

APPLICANT’S REQUEST

The Board grant relief from her court-martial sentence and grant her an honorable or general (under honorable conditions) discharge.

APPLICANT’S CONTENTIONS

She was a victim of Military Sexual Trauma (MST) almost immediately after her arrival at XXXXXX, Japan; the incident was reported to her superiors but nothing was done.  Despite this, she was able to move forward with her career for several years until she experienced an incident while she was stationed at XXXXX, Korea.  After shortly arriving in Korea, she went out with some new coworkers who had introduced her to Soju, a Korean alcoholic liquor, that she had never drank before and did not know its effect on her.  While walking back to base, a coworker pushed her and she fell into a ravine losing consciousness resulting in a head trauma necessitating evaluation and treatment from the emergency room.  This incident triggered her depression and anxiety related to her MST experience in Japan and her mental health deteriorated thereafter.  She believes the residual effects of her MST caused her to have impaired judgment resulting with her misconduct relating to her finances and court martial conviction and subsequent Bad Conduct Discharge (BCD).  She was convicted in 2003 for larceny of government funds obtained by submitting false documents; she made restitution prior to trial, accepted responsibility for her actions, and had a number of extenuating and mitigating circumstances that drove her to commit this crime.  While some of this evidence was presented at trial, much, to include a MST, a subsequent assault, and the associated mental health trauma, this evidence was overlooked by her defense counsel and was therefore not considered.  Due to an error in the processing of her appeal, or waiver thereof, she was not discharged, through no fault of her own, until 17 Jun 13.

In support of her request for clemency, the applicant provides a personal statement, numerous character reference letters, copies of military kudos, numerous post service certificates of achievement, college graduation certificate, and other documents related to her request for upgrade. 

The applicant’s complete submission is at Exhibits A and E.
STATEMENT OF FACTS

The applicant is a former Air Force airman basic (E-1). 

On 21 Nov 03, the convening authority published General Court-Martial Order No. 1.  The Order stated the applicant pled guilty to two charges of falsifying documents with the intent to deceive (Article 107), three charges of larceny (Article 121), and three charges of willfully and unlawfully alter public records (Article 134).  The applicant was sentenced to confinement for 11 months, forfeiture of all pay and allowances, reduction to the grade of airman basic, and discharge from the service with a BCD.

On 17 Jun 13, DD Form 214, Certificate of Release or Discharge from Active Duty, reflects the applicant was discharged in the grade of airman basic (E-1), credited with 16 years, 7 months and 17 days of active service and lost time from 9 Sep 03 to 8 Aug 04.  She was discharged with a “Bad Conduct” character of service and a narrative reason for separation of “Court-Martial - Other.”

On 12 Jan 17, the applicant submitted a DD Form 149, asking for a discharge upgrade to honorable contending her BCD was improper as compared to other military members who received less punishment for the same crime.

On 7 Sep 18, SAF/MRBC sent a letter to the applicant stating applicants should exhaust all other available avenues of relief prior to seeking relief through the AFBCMR, directing her to the Air Force Discharge Review Board (AFDRB) and closed her case.

On 10 Dec 20, the applicant retained counsel and sent in a new application requesting her discharge be upgraded to either honorable or in the alternative, to general.  She stated that she has exhausted all administrative remedies available to her and that the AFDRB does not possess the authority to adjudicate a request for a discharge upgrade when the service member was separated pursuant to a General Court-Martial.  The applicant’s counsel further contends a number of extenuating and mitigating circumstances that drove her to commit the crimes that resulted in her BCD was not presented at trial, which the evidence was overlooked by her defense counsel and was therefore not considered, to include MST.  Additionally, she contends that clemency is also a reasonable justification for the Board to upgrade her discharge based on the impressive body of evidence over the past 16 years.

For more information, see the excerpt of the applicant’s record at Exhibit B and the advisory at Exhibit H.

POST-SERVICE INFORMATION

On 17 Oct 17, the Board sent the applicant a request for post-service information, including a standard criminal history report from the Federal Bureau of Investigation (FBI), which the applicant provided on 7 Jul 21 (Exhibit F).  According to the report, the applicant has had no arrests since discharge, but she did have an arrest on 21 Mar 08 for intoxication and disruptive behavior, a misdemeanor, which was dismissed on 14 Jul 08, after her court-martial in 2003 and before her discharge in 2013.

APPLICABLE AUTHORITY

This Board is without authority to reverse, set aside, or otherwise expunge a court-martial conviction.  Rather, in accordance with Title 10, United States Code, Section 1552(f), actions by this Board are limited to corrections reflecting actions taken by the reviewing officials and action on the sentence of the court-martial for the purpose of clemency.

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 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 23 Jul 21, Board staff provided the applicant a copy of the liberal consideration guidance (Exhibit G).

AFI 36-3208, Administrative Separation of Airmen, describes the types of service characterization: 

Honorable.  The quality of the airman’s service generally has met Air Force standards of acceptable conduct and performance of duty or when a member's service is otherwise so meritorious that any other characterization would be inappropriate. 

Under Honorable Conditions (General).  If an airman’s service has been honest and faithful, this characterization is warranted when significant negative aspects of the airman's conduct or performance of duty outweigh positive aspects of the airman's military record.

Under Other than Honorable Conditions.  When basing the reason for separation on a pattern of behavior or one or more acts or omissions that constitute a significant departure from the conduct expected of airmen.  The member must have an opportunity for a hearing by an administrative discharge board or request discharge in lieu of trail by court-martial.  Examples of such behavior, acts, or omissions include, but are not limited to:

•	The use of force or violence to produce serious bodily injury or death.
•	Abuse of a special position of trust.
•	Disregard by a superior of customary superior - subordinate relationships.
•	Acts or omissions that endanger the security of the United States. 
•	Acts or omissions that endanger the health and welfare of other members of the Air Force.
•	Deliberate acts or omissions that seriously endanger the health and safety of other persons.
•	Rape, sexual assault, aggravated sexual contact, abusive sexual contact, rape of a child, sexual assault of a child, sexual abuse of a child, forcible sodomy and attempts to commit these offenses.

AIR FORCE EVALUATION

AFBCMR Psychological Advisor finds insufficient evidence to support the applicant’s request for an upgrade of her discharge. As requested, the Board may consider her petition under clemency.  There was some evidence that she may have experienced MST during service as there was an emergency room (ER) visit note dated 27 May 97 reporting possible sexual assault and she was interviewed by the Air Force Office of Special Investigations (OSI) at the ER.  However, the medical examination found no physical evidence of assault and she was unable to recall the incident.  There was no other documentation in her records of her MST experience anywhere else in her records to include at her court martial hearing.  There was evidence she suffered from head trauma while in Korea as she was seen at the ER on 16 Feb 02.  There was no serious complications from this incident reported in her medical records and no reports of any long-term or permanent memory and/or cognitive issues that are common following a traumatic brain injury (TBI).  The applicant did receive mental health treatment services during service; however, her records from the Life Skills Support Center were not available for review and so it could not be determined the reason or presenting problems for her treatment.  The notes that were available reported she had suicidal ideation as a result to her legal and personal stressors and having depression and sleep problems while incarcerated.  These emotional reactions are common among individuals who are incarcerated. Her mental health treatment note during confinement, dated on 29 Dec 03, actually reported her depression began two months prior and she denied having a previous history of depression.  There were no records reporting her MST or TBI experience had affected her functioning, judgment, and decision-making skills causing her misconduct at the snapshot in time of service.  

There was no known mental health issues she had at the time of her misconduct that could have explained her actions and behaviors.  The applicant’s court martial records had provided a detailed account of the timeline and description of her misconduct.  Her misconduct had occurred over at least a 6-month period or more, at two different locations at XXXX and XXXX, and appeared to be deliberate as stated by the prosecutor at court martial.  The prosecutor argued she received approximately $11,000 in housing allowance/BAH based on her altered marriage certificate.  She then filled out a second fraudulent document to receive family separation allowances and a third document in an attempt to receive COLA allowances from a highly expensive area in California.  The prosecutor asserted she could have stopped after receiving BAH but did not, and repeated her improper behaviors two more times.  The prosecutor argued she actually had some time in February to think before deciding to submit a second false document after returning to XXXXX (she had about a month in between her misconduct).  The psychological advisor concurs with the prosecutor’s opinion.  The steps that the applicant took involved planning and a considerable amount of time and effort on her part to achieve and does not appear to be an isolated or impulsive act.  The applicant was under significant stress due to her financial situation and she took steps, albeit not proper, as an attempt to ameliorate her situation and stressor.  Many people with financial problems make poor decisions to alleviate their situation and this appears to be the case for the applicant.  There was no objective evidence substantiating the effects of her MST experience and/or TBI may have caused any of her behaviors in which she was convicted at court martial.  Acknowledging the applicant’s personal testimony could be considered as evidence and there is a possibility of a nexus between her mental health condition and behaviors, this psychological advisor nevertheless, opines her contentions were not compelling enough considering the severity and frequency of her misconduct.  As aforementioned, the applicant wrongfully received more than $11,000 from the government and while it is commendable that she did pay back all of her debts to the military prior to her court martial, the applicant never came forward on her own to admit her mistake.  It was not until she was confronted by OSI, she actually initially denied it, of the discrepancy in her paperwork that she admitted to fabricating and omitting records with the intent of receiving money to pay her financial debts.  It is not known how long she would have continued to receive money that she was not entitled to from the military, if the discrepancy was not discovered.  Furthermore, the applicant worked in the finance office and had intimate knowledge of the inner workings of the office.  She abused her position of trust and authority for personal gain.  Her actions appeared to be premediated and the severity of her repeated misconduct could not be overlooked.  The psychological advisor opines liberal consideration is not required to be applied to her petition due to the element of premeditated behaviors that is exempt from the policy guidance.  The board may elect to apply liberal consideration to the applicant’s request due to her contention of a mental health condition, however, since her mental health condition, TBI, and/or MST experience do not excuse or mitigate her discharge, they also do not outweigh her original discharge.

The complete advisory opinion is at Exhibit H.

APPLICANT’S REVIEW OF EVALUATION

The Board sent a copy of the advisory opinion to the applicant on 4 Aug 21 for comment (Exhibit I), and the applicant replied on 2 Sep 21.  In her response, the applicant’s counsel contends her service treatment records from the Life Skills clinic show she experienced suicidal ideations and sought help at the ER.  During her confinement, she was on anti-depressants and since her discharge, continued to seek mental health treatment.  Her records corroborate her MST in Japan and her TBI in Korea even though the records are sparse.  As additional evidence, the applicant submitted transcripts of Psychiatric Exam (PE) sessions, VA records, and photographs before and after the incident.

The applicant’s complete response is at Exhibit J.

FINDINGS AND CONCLUSION

1.  The application was timely filed.

1.  The application is timely.  Given the requirement for passage of time, all clemency requests are technically untimely.  However, it would be illogical to deny a clemency application as untimely, since the Board typically looks for over 15 years of good conduct post-service.  Therefore, the Board declines to assert the three-year limitations period established by 10 U.S.C. § 1552(b).

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

3.  After reviewing all Exhibits, the Board concludes the applicant is not the victim of an injustice.  The Board finds no evidence that the sentence of the military court was improper or that it exceeded the limitations set forth in the Uniform Code of Military Justice.  The Board opined that liberal consideration was not warranted due to the element of premeditated behaviors that led to the applicant’s BCD.  The Board also considered the passage of time, the overall quality of the applicant’s service, the seriousness of the offense(s) committed, and the applicant’s post-service conduct.  However, the Board finds no basis for clemency in the case.  Therefore, the Board recommends against correcting the applicant’s records.

4.  The applicant has not shown that 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-2017-00411 in Executive Session on 14 Oct 21:

, Panel Chair
, Panel Member
, Panel Member

All members voted against correcting the record.  The panel considered the following:

Exhibit A:	Application, DD Form 149, w/atchs, dated 12 Jan 17.
Exhibit B:	Documentary evidence, including relevant excerpts from official records.
Exhibit C: Letter, SAF/MRBC, w/atchs (Post-Service Request), dated 17 Oct 17.
Exhibit D: Letter, SAF/MRBC, (Non Viable - Failure to Exhaust AFDRB), 7 Sep 18.
Exhibit E: New Application, DD Form 149, w/atchs, dated 10 Dec 20.
Exhibit F: Applicant’s response, FBI Report, dated, 7 Jul 21.
Exhibit G: Letter, SAF/MRBC, w/atchs (Clarifying Guidance), dated 23 Jul 21.
Exhibit H:	Advisory opinion, AFBCMR Psychological Advisor, dated 28 Jul 21.
Exhibit I:	Notification of advisory, SAF/MRBC to applicant, dated 4 Aug 21.
Exhibit J:	Applicant’s response, w/atchs, dated 2 Sep 21.

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.