ADDENDUM TO RECORD OF PROCEEDINGS

IN THE MATTER OF:	DOCKET NUMBER: BC-2018-01405

	COUNSEL:  

	HEARING REQUESTED:  YES

APPLICANT’S REQUEST

The Board reconsider his request to remove the nonjudicial punishment (NJP) under Article 15 dated 15 Dec 16, from his records.

RESUME OF THE CASE

The applicant is a retired Air Force colonel (O-6).

On 24 May 17, the Secretary of the Air Force (SECAF) determined the applicant served satisfactorily in the grade of colonel (O-6) and that he be retired in that grade.

On 31 Oct 18, the Board considered and denied his request to have the NJP dated 15 Dec 16 removed from his records, finding that the applicant had provided insufficient evidence of an error or injustice to justify relief.  For an accounting of the applicant’s original request and the rationale of the earlier decision, see the AFBCMR Letter and Record of Proceedings at Exhibit F with Exhibits A-E.

On 14 Jan 19, the applicant, through counsel requests reconsideration to remove the NJP dated 15 Dec 16.  As new evidence, counsel provides a copy of the Under Secretary of Defense for Personnel and Readiness, Robert Wilkie’s Guidance to Boards Regarding Equity, Injustice, or Clemency Determinations, dated 25 Jul 18, which was not available when the applicant’s original application was considered and contends the applicant’s request should be reconsidered based on this new guidance.  

Counsel notes the guidance states when determining whether to grant relief on the basis of equity, injustice or clemency the boards should consider whether the punishment, including any collateral consequences, was too harsh; the degree to which the requested relief is necessary for the applicant, and meritorious service in government or other endeavors.  

The applicant states the collateral consequences of the NJP are too harsh.  He travels frequently throughout the world discussing Space exploration, international cooperation, and National Aeronautics and Space Administration (NASA) human spaceflight policy.  His records at the National Crime Information Center (NCIC) indicate he received “Non-Judicial Disciplinary Action” for assault.  Because of this, he is subjected to searches and full body pat-downs on a routine basis.  His inability to obtain approval for a Transportation Security Administration (TSA) pre-check for Global Entry because he kissed a friend and colleague of over seven years on his last day at work at NASA is beyond absurd.  Further, the applicant states being singled out as a security risk is frustrating, humiliating and causes him to have to explain to colleagues why he has to undergo this extra screening.  He regrets the incidents that resulted in him receiving NJP, but believes as a retired officer with an honorable discharge he should not be deemed as a security threat.  

The applicant’s complete submission is at Exhibit G.

APPLICABLE AUTHORITY

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.  

The Under Secretary of Defense memoranda, Guidance to Military Discharge Review Boards and Boards for Correction Military/Naval Records Regarding Equity, Injustice, or Clemency Determinations, dated 25 Jul 18, provides standards for the Discharge Review Boards (DRBs) and Boards for Correction of Military/Naval Records (BCMNRs) in determining whether relief is warranted on the basis of equity, injustice, or clemency. 

The guidance states, in part, that in determining whether to grant relief on the basis of equity, an injustice, or clemency grounds the Boards can consider the applicant’s candor, whether the punishment, including any collateral consequences, was too harsh, severity of misconduct, acceptance of responsibility, remorse, or atonement for misconduct, the degree to which the requested relief is necessary for the applicants and meritorious service in government or other endeavors.

This guidance applies to more than clemency; it also applies to any other corrections, which may be warranted on equity or relief from injustice grounds. 

Copies of the Board guidance memoranda are at Exhibit H.

FINDINGS AND CONCLUSION

After reviewing all Exhibits, the Board remains unconvinced the evidence presented demonstrates an error or injustice and therefore finds no basis to recommend granting the requested relief.  The evidence was not sufficient to overcome the decision of the previous panel.  Therefore, the Board recommends against correcting the applicant’s records.

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-2018-01405-2 in Executive Session on 6 Jun 19:

, Vice Chair, AFBCMR
, 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 6 Nov 18.
Exhibit G:	Application, DD Form 149, w/atchs, dated 12 Jan 19.
Exhibit H:	Memorandum, OUSD, w/atchs, various dates.

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.