RECORD OF PROCEEDINGS

IN THE MATTER OF:	DOCKET NUMBER: BC-2017-02778

XXXXXXXXXXXXXXXXXX	COUNSEL: NONE

	HEARING REQUESTED: NO

APPLICANT’S REQUEST

His general (under honorable conditions) discharge be upgraded to honorable.

APPLICANT’S CONTENTIONS

He deserved what he got when he was discharged.  He was young and made some poor decisions during his service in the Air Force.  Since his discharge, he has been gainfully employed and other than a few speeding tickets, has not been in trouble with the law.  He is currently employed by his local school district, where he has been a mathematics teacher since 1997.  He is planning to retire in the near future and would like to buy back his time in the military.  However, his state requires an honorable discharge in order to buy back military time towards retirement from public service.

The applicant’s complete submission is at Exhibit A.

STATEMENT OF FACTS

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

On 13 Dec 85, the applicant’s commander recommended he be discharged from the Air Force, under the provisions of AFR 39-10, Administrative Separation of Airmen, for misconduct.  The specific reasons for the action were as follows:

a.	On 14 Oct 84, the applicant wrongfully appropriated a vehicle, wrongfully damaged private property and operated a vehicle while intoxicated.

b.	On 23 Nov 85, the applicant unlawfully entered the room of a female airman’s barracks.

For these offenses, he received non-judicial punishment.

On 24 Dec 85, the discharge action was found legally sufficient, and the discharge authority approved the recommendation.

On 24 Dec 85, the applicant was discharged with a general (under honorable conditions) character of service.  His narrative reason for separation is Misconduct-Pattern Conduct Prejudicial to Good Order and Discipline.  He was credited with 3 years and 24 days of active service.

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

POST-SERVICE INFORMATION

On 25 Aug 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 Apr 18 (Exhibit D).  According to the report, the applicant has had no arrests since discharge.

APPLICABLE AUTHORITY

According to AFI 36-3208, Administrative Separation of Airmen, incorporating changes through 8 June 2017, paragraph 1.18, the types of service characterization are as follows: 

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.

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 Post Traumatic Stress Disorder (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 E.

AIR FORCE EVALUATION

The AFBCMR Psychological Advisor finds insufficient evidence to support the applicant’s request to upgrade his discharge to honorable.  However, the Board may consider applying clemency to the applicant’s case since he was discharged from service almost 35 years ago.  The applicant was given a diagnosis of Alcohol Abuse, Episodic specifier.  He was recommended to be discharged from the Air Force and referred to the VA hospital for alcohol rehabilitation.  A review of the available records found no objective evidence that a nexus exists between his mental health condition and misconduct leading to his discharge from service.  When he was evaluated by Social Actions following his driving under the influence (DUI) in Oct 84, there was no report of any emotional distress or mental health conditions such as depression, anxiety, sleep problems, etc. experienced that may cause his misconduct.  When he was evaluated at the mental health clinic following the second alcohol related incident in Dec 85, his mental status exam was annotated as “WNL” or within normal limits indicating, again, no signs of emotional distress or mental health issues.  He did report having sleep problems and depression or excessive worrying during his separation physical but these issues were attributed to his discharge from service, which are not uncommon reactions or responses considering his circumstances.  Despite the lack of evidence, the Board may consider applying liberal consideration to the applicant’s request.

The complete advisory opinion is at Exhibit F.

APPLICANT’S REVIEW OF AIR FORCE EVALUATION

The Board sent a copy of the advisory opinion to the applicant on 21 Oct 20 for comment (Exhibit G), but has received no response.

FINDINGS AND CONCLUSION

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 the victim of an injustice.  While the Board finds no error in the original discharge process, the Board recommends relief based on clemency.  Through the lens of clemency, the Board notes the applicant’s post-service accomplishments.  Therefore, the Board recommends the applicant’s records be corrected as indicated below.

RECOMMENDATION

The pertinent military records of the Department of the Air Force relating to the APPLICANT be corrected to show that on 24 December 1985, he was honorably discharged with a narrative reason for separation of “Secretarial Authority,” a separation code of “JFF,” and was furnished an honorable discharge certificate.

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-2017-02778 in Executive Session on 4 Nov 20:

, Panel Chair
, Panel Member
, Panel Member

All members voted to correct the record.  The panel considered the following:

Exhibit A:	Application, DD Form 149, dated 7 Jun 17.
Exhibit B:	Documentary evidence, including relevant excerpts from official records.
Exhibit C:	Post Service Clemency Letter, dated 25 Aug 17.
Exhibit D:	Applicant’s response, with FBI Investigative Report, dated 7 Apr 18.
Exhibit E:	Consolidated clarifying guidance, various dates.
Exhibit F:	Advisory opinion, AFBCMR Psychological Advisor, dated 26 Aug 20.
Exhibit G:	Notification of advisory, SAF/MRBC to applicant, dated 21 Oct 20.

Taken together with all Exhibits, this document constitutes the true and complete Record of Proceedings pertaining to Docket Number BC-2017-02778, as required by AFI 36-2603, paragraph 4.11.9.