RECORD OF PROCEEDINGS

IN THE MATTER OF:	DOCKET NUMBER: BC-2019-01314

XXXXXXXXXXXXXX	COUNSEL: NONE	 

  	HEARING REQUESTED: NO

APPLICANT’S REQUEST

His entry level separation (ELS) with uncharacterized character of service be changed to an honorable discharge.

His narrative reason for separation reflect for “Convenience of the government,” instead of “Entry level performance.”

His Reentry (RE) code be changed to “1,” instead of “2C.”

APPLICANT’S CONTENTIONS

The “2C” RE code denotes “Involuntary separation with honorable discharge.”  He was suffering from multiple mental health conditions while in service and is still receiving treatment.  The applicant’s complete submission is at Exhibit A.

STATEMENT OF FACTS

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

AF Form 3070, Record of Nonjudicial Punishment Proceedings, dated 14 May 92 shows he received an Article 15 for failure to go to his appointed place of duty at the prescribed time and for violation of a lawful general regulation by not remaining in proper military uniform while outside of his quarters.  Punishment included 30 days correctional custody and forfeiture of $100 pay, suspended until 25 Nov 92.  

On 8 Jun 92, the applicant’s commander notified him he was recommending he be discharged for failure to make satisfactory progress in a required training program.  Specifically, he failed three progress checks.  He was recycled and continued to have multiple progress check failures.  

On 10 Jun 92, the applicant acknowledged the discharge recommendation, consulted counsel and waived his right to submit statements in his own behalf.   

On 16 Jun 92, the discharge authority approved the recommendation for discharge.  

On 18 Jun 92, he was discharged with an ELS, uncharacterized character of service, RE code “2C” and narrative reason for separation of “Entry level performance.”  He served 5 months and 16 days of active duty service.  For more information, see the excerpt of the applicant’s record at Exhibit B and the advisory opinions at Exhibits D thru F.

APPLICABLE DIRECTIVE

On 25 July 2018, the Under Secretary of Defense issued supplemental guidance (Wilke Memo) to military corrections boards in determining whether relief is warranted based on equity, injustice, or clemency.  These standards authorized the Board to grant relief in order to ensure fundamental fairness.  Clemency refers to relief specifically granted from a criminal sentence and is 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.  In determining whether to grant relief on the basis of equity, an injustice or clemency grounds, the Board should refer to the supplemental guidance.  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 (Exhibit C).  

AIR FORCE EVALUATION

The BCMR Psychological Advisor finds insufficient evidence to support his requests.  The applicant did not complete the entry level status of 180 days of service and there were no errors identified in the discharge processing, which is consistent with an ELS.  Further, liberal consideration is not applied due to his mental health condition existed prior to service (EPTS).

In terms of his mental health during service, there are no records he received any mental health treatment services.  However, he was referred for a mental health evaluation by his leadership that was performed on 16 Jun 92.  He reported he had problems sleeping at night and that he had nightmares after falling asleep.  He had dreams of his family being murdered and chased by the killer.  He was given a diagnosis of insomnia with nightmares and no recommended follow-up treatment was annotated.  While in the process of being discharged from service, he completed a separation physical evaluation on 10 Jun 92 and endorsed having “nervous trouble of any sort” on the Report of Medical History.  

It appeared through his records he received mental health treatment from a private mental health facility in 2010, 18 years post discharge.  He began receiving treatment with the Veterans Affairs (VA) starting on 6 May 19, 27 years post discharge, with complaints of mood instability, depressed mood with hypomanic or manic episodes and had suicidal ideations in the past.  He reported he had mental health issues starting from the age of 11 years old and had tried to jump off a bridge twice.  He also reported he experienced auditory and visual hallucinations that would last 5 to 6 minutes.  He was given a diagnosis of Bipolar I Disorder and is receiving 100 percent disability rating from the VA.  He did not report any of these conditions or symptoms during his enlistment process.  

The Psychological Advisor finds that although he received a mental health evaluation in service, there was no clear etiology of his reported insomnia and possible anxiety.  The applicant contends he had mental health issues during service but he failed to report them during his enlistment process.  This is considered EPTS.  There is no evidence his military service aggravated his mental health condition to include insomnia and anxiety beyond the natural progress of the disease.  It appears he simply had difficulties adjusting and adhering to military rules and standards.  The complete advisory is at Exhibit D.

AFPC/DP2SSR recommends denial for change of his ELS discharge.  Airmen are in entry level status during the first 180 days of active service.  The Department of Defense (DOD) determined if a member serves less than 180 days, it would be unfair to the member and the service to characterize their limited service.  The complete advisory is at Exhibit E.

AFPC/DP2SSM recommends denial for change of his RE code.  His RE code is “2C” (Involuntarily separated with an honorable discharge; or entry level separation without characterization of service).  Airmen selected under the Selective Reenlistment Program (SRP) but elect separation are given RE code “1J.”  The RE code “1J’ would not be appropriate as he was not selected or qualified for reenlistment but was involuntarily discharged.  The complete advisory is at Exhibit F.  

APPLICANT’S REVIEW OF AIR FORCE EVALUATION

The Board sent a copy of the advisory opinion to the applicant on 13 Apr 20 for comment (Exhibit G), but has received no response.

FINDINGS AND CONCLUSION

1.  The application was not timely filed.

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.  The Board concurs with the rationale and recommendations of the BCMR Psychological Advisor, AFPC/DP2SSR and AFPC/DP2SSM and finds a preponderance of the evidence does not substantiate the applicant’s contentions.  The applicant did not complete the entry level status of 180 days of service and it appears his mental health issues were EPTS.  Accordingly, the Board finds no evidence of an error or injustice in his discharge processing.  The Board also notes the applicant did not file the application within three years of discovering the alleged error or injustice, as required by Section 1552 of Title 10, United States Code, and Air Force Instruction 36-2603, Air Force Board for Correction of Military Records (AFBCMR).  While the applicant asserts a date of discovery within the three-year limit, the Board does not find the assertion supported by a preponderance of the evidence.  The Board does not find it in the interest of justice to waive the three-year filing requirement.  Therefore, the Board finds the application untimely and recommends against correcting the applicant’s records.

RECOMMENDATION

The Board recommends informing the applicant the application was not timely filed; it would not be in the interest of justice to excuse the delay; 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-2019-01314 in Executive Session on 20 May 20:

 , 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 9 Nov 18.
Exhibit B:	Documentary evidence, including relevant excerpts from official records.
Exhibit C:  Letter, SAF/MRBC, w/atchs, dated 2 May 19.
Exhibit D:	Advisory opinion, BCMR Psychological Advisor, dated 19 Mar 20.
Exhibit E:  Advisory opinion, AFPC/DP2SSR, dated 1 Apr 20. 
Exhibit F:  Advisory opinion, AFPC/DP2SSM, dated 9 Apr 20.
Exhibit G:	Notification of advisory, SAF/MRBC to applicant, dated 13 Apr 20.

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.