RECORD OF PROCEEDINGS

IN THE MATTER OF:	DOCKET NUMBER: BC-2019-00996

XXXXXXXX (APPLICANT)	COUNSEL: NONE
	AKA:  XXXXXXX
	HEARING REQUESTED: YES

APPLICANT’S REQUEST

Her Under Honorable Conditions (General) discharge be upgraded to an Honorable discharge.

APPLICANT’S CONTENTIONS

She reported to her first sergeant that her immediate supervisor was sexually harassing her.  Her given advice was to ignore her supervisor and focus on her promotion.  She received further advice that she did not want the identification of being a whiner or a troublemaker.  This caused her enormous stress and anxiety at the time of her discharge.  She was unaware that her issued discharge would tarnish her military reputation and make her become ineligible for certain benefits.  She believed she had an honorable discharge since the under honorable conditions was emphasized when she was advised of her discharge.  She was embarrassed to speak on the matter after her first sergeant shut her down.  However, she has recently received counseling and the submission of her application is a step in her healing process.  

The applicant’s complete submission is at Exhibit A.

STATEMENT OF FACTS

The applicant is a former Air Force airman first class (E-3).    

On 14 June 1996, the applicant’s commander recommended that she be discharged from the Air Force, under the provisions of Air Force Policy Directive (AFPD) 36-32, Military Retirements and Separations, and Air Force Instruction (AFI) 36-3208, Administrative Separation of Airmen,  for minor disciplinary infractions and unsatisfactory performance-failure to progress in on-the-job-training.  The specific reasons for the action were as follows:

a.	Record of Individual Counseling (RIC) for her failure of participation in a change of command ceremony.  

b.	 Two Letters of Reprimand for her failure to attend two separate scheduled appointments.

c.	Two RICs for her failure to attend two separate scheduled appointments.

d.	Memorandum for Record (MFR) due to her failure to respond for a mandatory recall.   
e.	MFR for her failure to attend a scheduled appointment.

f.	MFR for twice failing her Career Development Course (CDC) end of course test. 

The discharge action was found legally sufficient, and the discharge authority approved the recommendation for discharge.  

On 1 July 1996, the applicant was issued an Under Honorable Conditions (General) discharge, with a narrative reason for separation of “Misconduct,” along with a separation code of “JKN” (Misconduct –Minor Infractions), and reentry (RE) code of “2B” (Discharged under General or other-than-honorable conditions).  She was credited with 1 year, 11 months, and 26 days of active service.  

For more information, see the excerpt of the applicant’s record at Exhibit B, applicable authority, and advisory opinion at Exhibit E.   

APPLICABLE AUTHORITY

According to AFI 36-3208, if an airman’s service has been honest and faithful, a general (under honorable conditions) discharge is warranted when significant negative aspects of the airman's conduct or performance of duty outweigh positive aspects of the airman's military record.

On 3 September 2014, the Secretary of Defense issued a memorandum providing guidance to military correction boards regarding liberal consideration for Vietnam veterans claiming post-traumatic stress disorder (PTSD) (Hagel Memo).  In addition, time limits to reconsider decisions would be liberally waived for applications covered by this guidance. 

Subsequent guidance expanded liberal consideration protections to include all veterans who requested a modification of their discharge, to include character of service, narrative reason for discharge and reenlistment code, due in whole or in part to any mental health condition rather than just PTSD or Traumatic Brain Injury (TBI), and included those veterans who were victims of sexual assault or sexual harassment.  Liberal consideration would 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?
Copies of all guidance memoranda can be found at Exhibit C.

APPLICANT’S REVIEW OF APPLICABLE AUTHORITY

The Board sent a copy of the Consolidated Clarifying Guidance and Consent Form to the applicant on 28 May 2020 (Exhibit C).  She replied and gave permission to post a redacted version of her Record of Proceedings (ROP) to the public electronic reading room (Exhibit D).  

AIR FORCE EVALUATION 

The AFBCMR Psychological Advisor conducted a review of the applicant’s records to apply liberal consideration to her request due to the contentions of sexual harassment.  The advisor found there to be insufficient evidence to support her request for a change to her record.   The applicant did not provide enough clarifying information about her experience. Specifically, she did not provide the timeframe or how it affected her misconduct and behavior while in the service and how it ultimately led to her discharge.  There was no evidence or witness statements submitted to corroborate her contentions.  Moreover, there is no substantiated or objective evidence that her experience of sexual harassment and resulting mental health condition existed or occurred during her military service.  There are no mental health records or service treatment records available for review from her time in the service or post service review to substantiate her report of having anxiety and stress due to being sexually harassed.  It is possible that her stress and anxiety may have caused some misconduct but not enough information was available to support this hypothetical situation and is purely speculative.  Therefore, since there is no substantiated evidence that the applicant’s sexual harassment experience and mental health condition existed or occurred in service, her condition or experience does not excuse, mitigate, or outweigh her discharge.  

The complete advisory opinion is at Exhibit E. 

APPLICANT’S REVIEW OF AIR FORCE EVALUATION

The Board sent a copy of the advisory opinion to the applicant on 3 December 2020 for comment (Exhibit F), but has received no response.  

FINDINGS AND CONCLUSION

1.  The application is not timely, but it is in the interest of justice to excuse the delay.  

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 error or injustice.  While the applicant’s contentions are noted, we find no evidence or documentation in the record that would lead us to believe the implementation of her discharge was not in accordance with the prescribed directive and/or instruction.  In the interest of justice, the Board considered upgrading the applicant’s discharge based on clemency; however, given the evidence presented, and in the absence of post-service information / criminal history, the Board finds no basis to do so.  In addition, the Board concurs with the rationale and recommendation of the Psychological Advisor and is satisfied that the applicant’s request does not warrant liberal consideration relief.  In this respect, the Board note that the applicant contends that she was sexually harassed; however, the Board found that she did not provide any substantial evidence showing the nexus of the harassment and her administrative separation.  Moreover, a thorough review of her records did not disclose any objective evidence to establish a cause and effect relationship between the harassment and the termination of her military service.  Therefore, the Board recommends against correcting the applicant’s records.  

4.  The applicant has not shown 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-2019-00996 in Executive Session on 24 June 2020 and 11 February 2021:

, Panel Chair
, Panel Member
, Panel Member
, Panel Member

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

Exhibit A:	Application, DD Form 149, w/atchs, ineligible date.
Exhibit B:	Documentary evidence, including relevant excerpts from official records.
Exhibit C:	Notification of Consolidated Clarifying Guidance (various dates) and 
                  AFBCMR Consent Form, dated 28 May 2020.  
Exhibit D: Applicant’s response, undated.
Exhibit E:	Advisory opinion, AFBCMR Psychological Advisor, dated 7 October 2020. 
Exhibit F:	Notification of advisory, SAF/MRBC to applicant, dated 3 December 2020.

Taken together with all Exhibits, this document constitutes the true and complete Record of Proceedings related to Docket Number BC-2019-00996, as required by AFI 36-2603, paragraph 4.11.9.