ADDENDUM TO RECORD OF PROCEEDINGS

IN THE MATTER OF:	DOCKET NUMBER: BC-2013-01949-3

XXXXXXXXX	COUNSEL: XXXXX
	
	HEARING REQUESTED: NO

APPLICANT’S REQUEST

1.  Reconsider his request to upgrade his under honorable conditions (general) discharge to honorable.

2.  His narrative reason for separation be changed to “Secretarial Authority” with the correlating separation (SPD) code.

RESUME OF THE CASE

The applicant is a former Regular Air Force airman (E-2).

On 9 November 2012, the applicant was discharged with a service characterized as under honorable conditions (general) with a narrative reason for separation of Misconduct (Other) and “JKM” (Misconduct Other) SPD code.  He served 2 years, 2 months, and 3 days of active service.

On 11 February 2014, the Board considered and denied the applicant’s request to upgrade his discharge and narrative reason for separation noting that he did not provide evidence to refute the assessment by the Air Force Office of Primary Responsibility and the BCMR Medical Consultant.  For an accounting of the applicant’s original request and the rationale of the earlier decision, see the Record of Proceedings at Exhibit G. 

On 29 August 2014, the Board staff notified the applicant that his request for reconsideration of his application did not meet the criteria for reconsideration by the Board.  Specifically, he did not provide any new and relevant evidence to support his appeal, see Exhibit H.

On 15 July 19, through counsel, the applicant requested reconsideration of his request for a discharge upgrade due to this service connection for Depression Disorder with Substance Use.  In a 10-page brief, he reiterates his original contentions and provides the following key comments:

His medical and service records support that his misconduct should be mitigated due to his depression diagnosis while serving on active duty.  Liberal consideration should be applied and his discharge for minor misconduct should be upgraded to honorable; under current policy, he would have met a Medical Evaluation Board (MEB) to determine if he had a mental illness.  

In 2011, during physical training, he began drinking alcohol after re-injuring his shoulder.  As Security Forces personnel, he was required to maintain worldwide assignability (WWA) and worldwide-qualified (WWQ), to be mentally stable, and to be able to participate in nuclear weapon Personnel Reliability Program (PRP).  If a member cannot maintain PRP standards, they become decertified from their job and are no longer WWA.  

In May 2012, he had surgery on his shoulder and was placed on 30-days of limited duty.  In September 2012, he was in a car accident and re-injured his shoulder, which required another surgery; however, he opted not to have the surgery because it was highly invasive requiring a bone graph from his hip.  After declining the surgery, he was unjustly processed for an administrative discharge.  

On 28 October 2012, according to AF Form 286A, Personnel Reliability Program (PRP) Permanent Disqualification or Decertification Action, provided by the applicant, he was decertified from PRP due to his shoulder pain, mental health issues, and his misconduct.  

Nearly all psychologists have acknowledged a connection between his depressive disorder with substance abuse and his time in the service, which is evidenced by his Department of Veterans Affairs (DVA) rating.  Post-service, the applicant-received treatment at the DVA for his shoulder and mental health.  On 16 October 2015, after many dislocations of the shoulder, he had another surgery.  

His qualifying medical condition [depression disorder] mitigates his discharge and the Kurta memorandum applies because his depression began while he was serving on active duty.  However, he was not afforded the opportunity to have his mental health comprehensively evaluated prior to being separated.

In support of the applicant’s current requests, he provides a copy of his DVA Rating Decision, additional medical documentation, his Permanent Decertification from PRP, his college transcript, and excerpts from his military records.  

The applicant’s complete submission is at Exhibit I.

APPLICABLE AUTHORITY

On 25 August 2017, 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.

On 25 July 2018, the USD P&R issued further guidance with the intent to set clear standards.  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.  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.  

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.

The entire guidance can be found at Exhibit J.

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.

POST-SERVICE INFORMATION

On 8 August 2019, the Board sent the applicant a request for post-service information, including a standard criminal history report from the Federal Bureau of Investigation (FBI); however, he has not replied.

AIR FORCE EVALUATION

The BCMR Psychological Advisor finds insufficient evidence to support the applicant’s requests.  The applicant’s mental health conditions, to include depression, do not fully mitigate his misconduct leading to his discharge.  In this regard, the applicant received mental health services for feeling depressed due to a break up of a relationship and being homesick.  However, his treatment notes dated 16 June 2011, reflects he reported he no longer felt depressed.  The termination of his therapy treatment was due to noticeable and reported mood improvements and appropriate coping skills usage.  It appeared his mental health continued to be stable as he consented for the Family Advocacy Program (FAP) to perform a records review of his mental health history in order to be Personnel Reliability Program (PRP) qualified to work with children and youth.  He received a recommendation to continue with full PRP status and deemed qualified for PRP duties. 

On 27 September 2012, the applicant completed a command evaluation referral with the Alcohol and Drug Abuse Prevention Treatment (ADAPT) program for driving while under the influence of alcohol.  He complied with the recommendation to attend five Alcohol Brief Counseling sessions and completed the recommended treatment, contrary to his legal counsel’s assertion that he was unable to complete ADAPT treatment prior to his discharge.  It appeared he drank to cope with his pain, which may have a psychological distress component, but there was no reported depression.  His pain may have mitigated his drinking and alcohol related issues, but they do not mitigate his other misconduct such as not reporting to his exam, driving without a license, making a false statement to his commander, and getting into a physical altercation with another airman.    

The applicant denied suicidal and homicidal ideation, intent, plans, or means.  There were attempts to address and discuss his problems; however, he was resistant due to poor insight.  His last encounter with ADAPT was on 29 October 2012 and he separated on 9 November 2012, less than 2 weeks apart.  Thus, his contention that he did not receive a mental health evaluation at the time of discharge is uncorroborated.  Moreover, his post-service mental health records does not support that his depression mitigated his misconduct. 

On 15 February 2013, the applicant began receiving services through his local VA clinic for shoulder pain and other physical issues.  However, it was not until 2 December 2015, three years post-service, that he began receiving mental health services.  His presenting problems were primarily post-service stressors such as not feeling safe in his home, stressors of law school, and physical/medical problems.  There were brief referrals of depression from his time in service, but it did not state how they affected his misconduct and discharge.  Further, his depression does not appear to have significantly impaired his ability to function in present time as evidenced by him graduating from law school with plans to take the bar exam. 

The VA granted the applicant a 70% disability rating for Major Depressive Disorder with Substance Use, effective 16 December 2015.  There is a difference between the Department of Defense’s (DoD) and the VA’s disability ratings/service connection.  The military’s Disability Evaluation System (DES), established to maintain a fit and vital fighting force, can by law, under Title 10, United States Code (U.S.C.), only offer compensation for those service incurred diseases or injuries which specifically rendered a member unfit for continued active service and were the cause for career termination; and then only for the degree of impairment present at the “snapshot”  time of separation and not based on post-service progression of disease or injury.  To the contrary, the VA operating under a different set of law, Title 38, U.S.C., is empowered to offer compensation for any medical condition with an established nexus with military service, without regard to its impact upon a member’s fitness to serve, the narrative reason for release from service, or the length time transpired since the date of discharge. The VA may also conduct periodic reevaluations for the purpose of adjusting the disability rating awards as the level of impairment from a given medical condition may vary [improve or worsen] over the lifetime of the veteran.

The complete advisory opinion is at Exhibit K.

APPLICANT’S REVIEW OF AIR FORCE EVALUATION

The Board sent a copy of the advisory opinion to the applicant on 4 September 2019 for comment (Exhibit L), and the applicant replied on 24 September 2019.  In his response, counsel disagrees with the BCMR Psychiatric Advisor’s advisory opinion and makes the following key comments:

The Psychiatric Advisor’s advisory opinion implies the applicant was returned to duty nine months after his treatment concluded; however, this is not accurate.  He was ordered to return to full WWQ/PRP status only 12 days after being diagnosed with depression and adjustment disorder.  The medical notes states, “Pass depression/sleep as PDI.  Member has been seen in mental health twice on an emergent basis regarding issues with a depressive disorder surrounding some life and relational changes.  His adjustment condition is also affecting his sleep.  Member is starting on an anti-depressive medication that will make him NOT WWQ for at least 90 days.  He continues to follow with mental health for cognitive therapy.  Member should not be performing PRP duties.”  Despite medical documentation mandating at least 90 days of suspended duty, he was ordered to continue working.

He continued to abuse alcohol while serving in the military and was never counseled to stop drinking.  His mental health issues caused his alcohol abuse; the totality of the circumstances caused and/or mitigate his alleged misconduct.

Finally, his post-service accomplishments appear to be a strike against him as the Psychiatric Advisor implies that he could not graduate law school and take the bar exam if he were suffering from a mental health injury.  However, this assertion is not accurate and omits vital facts.  Specifically, he was able to achieve these goals because he was diagnosed and received proper treatment for depression, including medication and therapy, post-service, which had this been accomplished while in the service, he would have enjoyed the same outcome.

The applicant’s complete response is at Exhibit M.

FINDINGS AND CONCLUSION

After reviewing all Exhibits, the Board remains unconvinced the evidence presented demonstrates an error or injustice.  The Board concurs with the rationale and recommendation of the BCMR Psychological Advisor and finds a preponderance of the evidence does not substantiate the applicant’s contentions.  The Board notes the termination of the applicant’s mental health therapy treatment on 28 June 2011, after he reported no longer feeling depressed.  Approximately nine months later, on 14 March 2012, a records review evaluated the applicant’s mental health history, which considered his prior mental health, substance abuse, and family violence history.  The results found no mental health condition, to include depression or substance use issues.  The Board considered the application according to Department of Defense guidance on discharge upgrade requests from veterans claiming mental health issues; however, the Board is satisfied that the application of liberal consideration does not warrant any relief.  Specifically, the Board particularly notes the Psychological Advisor’s opinion cited above that the applicant’s post-service mental health records does not support his depression mitigating his misconduct.  The Board further considered the applicant’s overall quality of service, the seriousness of the offenses, and all available post-service information.  However, the Board finds no basis for clemency in his case.  Therefore, the Board recommends against correcting the applicant’s records.  

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-2013-01949-3 in Executive Session on 29 May 20:

, Panel Chair 
, Panel Member
, Panel Member

All members voted against correcting the record.  The panel considered the following documentary evidence pertaining to AFBCMR Docket Number BC-2013-01949-3:

Exhibit G:	Record of Proceedings, w/ Exhibits A-F, dated 24 February 2014.
Exhibit H:	Deny Reconsideration Letter, dated 29 August 2014.
Exhibit I:   Application, DD Form 149, w/atchs, dated 15 July 2019.
Exhibit J:	Consolidated Mental Health Liberal Consideration Guidance, SAF/MRBC, 
		dated 8 August 2019.
Exhibit K:	Advisory opinion, BCMR Mental Health Advisor, dated 15 August 2019. 
Exhibit L:	Notification of advisory, SAF/MRBC to applicant, dated 4 September 2019.
Exhibit M:	Counsel’s response, w/atchs, dated 24 September 2019.

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.