RECORD OF PROCEEDINGS

IN THE MATTER OF:	DOCKET NUMBER: BC-2019-01820

	COUNSEL: YES
	
	HEARING REQUESTED: NO

APPLICANT’S REQUEST

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

2.  She be issued a new DD Form 214, Certificate of Release or Discharge from Active Duty, to reflect the following:

a.	Current legal name (administratively corrected).

b.	Narrative reason for separation of Secretarial Authority.

c.	Reenlistment code (RE) change [2C].

APPLICANT’S CONTENTIONS

Through counsel, the applicant contends she was struggling living as a male and began to understand herself as female-identified while in service.  This condition was later known as Gender Dysphoria that did not exist at the time, leading the applicant to experience significant mental health issues such as depression and suicidal thoughts and a one-time positive drug test that led to her discharge from service.  She request her discharge be upgraded to Honorable based on the Kurta Memo, Clarifying Guidance to Military Discharge Review Boards and Boards for Correction of Military/Naval Records Considering Requests by Veterans for Modification of their Discharge Due to mental health conditions, Sexual Assault, or Sexual Harassment, dated 25 Aug 17.  Although she was discharged more than 30 years ago, it was on 7 Jul 17 that she was granted a court decree changing her name and gender.  Additionally, she is now in a place in her life where she is able to confront her issues, have honest regret for her actions at the time, and the ability to articulate her request to the Board.

The applicant’s complete submission is at Exhibit A.

STATEMENT OF FACTS

The applicant is a former Air Force staff sergeant (E-5).  

On 6 Sep 83, the applicant’s commander recommended the applicant be discharged from the Air Force, under the provisions of AFM 39-10, chapter 5, section H, paragraph 5-49c for frequent involvements of a discreditable nature with military or civilian authorities.  The specific reasons for the action were as follows:

a.	Substandard duty performance.

b.	Failure to accept noncommissioned officer responsibilities.

c.	Disorderly in station.

d.	Use of marijuana.

On 31 Oct 83, the applicant’s commander requested a psychiatric evaluation for the applicant and on 1 Nov 83, the psychologist determined there was no evidence of mental defects, emotional illness or mental health disorder.

On 30 Dec 83, the discharge action was found legally sufficient.

On 4 Jan 84, the applicant received an Under Honorable Conditions (General) discharge with Separation Code “GKK” (misconduct-drug abuse), Reenlistment Code, “2B” (separated with a general or under other than honorable conditions discharge) and Narrative Reason for Separation, “misconduct-drug abuse,” and credited with 5 years, 5 months and 23 days of active service. 

On 17 Jul 17, according to documentation provided by the applicant, a superior court judge ordered the applicant’s name be changed and her gender changed from male to female.

On 5 Aug 19, the applicant was issued a new DD Form 214 reflecting her current legal name.

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

POST-SERVICE INFORMATION

On 22 May 19, 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, she has not replied (Exhibit C).

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.

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.  Copies of the Board guidance memoranda are at Exhibit C.

AIR FORCE EVALUATION

BCMR Psychological advisor finds sufficient evidence to support the applicant’s to upgrade her discharge to Honorable and change the narrative reason to Secretarial Authority as afforded in the guidance for liberal consideration.  According to the current Diagnostic and Statistical Manual of Mental Disorder, Fifth Edition (DSM-5), Gender Dysphoria refers to the distress an individual experiences when one’s experienced gender is incongruent with one’s assigned gender.  This condition is somewhat of new condition as applicant’s legal counsel stated, as it became an official condition in the DSM-5 starting in 2013.  However, this condition was previously called or identified as Gender Identity Disorder that was first acknowledged and published in the DSM-III in 1980.  Hence, this condition was known during the time applicant was in the service albeit not as commonly diagnosed.  The name of the condition was changed to Gender Dysphoria in 2013 in an effort to reduce stigma and to focus on dysphoria and not identity as a clinical problem.  Regardless of the official nomenclature, Gender Dysphoria is a condition that may be lifelong causing significant distress to the individual causing the development of anxiety and depression and in younger individuals; they may display disruptive and impulse-control behaviors.  These are symptoms that applicant displayed noticeably in service.  It is plausible that applicant had an inclination or knew that she had identified with being a female but lived and functioned as a male at the time in service.  There was no evidence in her records that she had openly disclosed or accepted this aspect of herself to anyone as she may struggle with coming to terms, not ready, or willing to admit to adhering to this gender identity at the time.  It is not uncommon for individuals with gender dysphoria to take some time to be open and to come to this acceptance or realization about themselves.  However, we are also reminded that applicant was not living, working, or functioning in an environment that was supportive of her newly identified gender at the snapshot in time.  Therefore, her anger outbursts, low self-confidence and self-esteem, depression, anxiety, and difficulties asserting her leadership authority recorded in service were clues and expressions of applicant’s frustration, confusion, and distress.  Thus, the psychological advisor opines these stressors more likely than not led applicant to use marijuana to help her cope with the mental anguish that she struggled with conveying and identifying while in service.

The complete advisory opinion is at Exhibit D.

APPLICANT’S REVIEW OF AIR FORCE EVALUATION

The Board sent a copy of the advisory opinion to the applicant on 6 Sep 19 for comment (Exhibit E), but has received no response.

FINDINGS AND CONCLUSION

1.  The application was not timely filed, 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 majority concludes that the applicant is the victim of an injustice.  The Board majority concurs with the rationale of the BCMR Psychological Advisor and finds a preponderance of the evidence substantiates the applicant’s contentions.  While the Board majority finds no error in the original discharge process, the Board majority recommends relief based on liberal consideration due to the applicant’s history of mental health treatment.  Specifically, although there is no evidence the applicant was diagnosed with Gender Dysphoria while in service, there is evidence of psychological distress while in service that more likely than not, mitigated her misconduct.  Therefore, the Board majority 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 the APPLICANT’s DD Form 214, Certificate of Release or Discharge from Active Duty, issued in conjunction with the 11 Oct 83 discharge, be declared void; a new DD Form 214 be issued to reflect she received an honorable discharge with a narrative reason for separation of “Secretarial Authority,” a Reenlistment Code of “2C,” and a separation code of “JFF” and no entries be made on the reissued DD Form 214 indicating the changes or the DD Form 214 was administratively reissued.

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-2019-01820 in Executive Session on 20 May 20:

Panel Chair
Panel Member
Panel Member

A majority of the panel voted to correct the record.  Mr. Gregory E. Johnson voted not to correct the record and did not wish to provide a minority opinion.  The panel considered the following:

Exhibit A:	Application, DD Form 149, w/atchs, dated 30 Jan 19.
Exhibit B:	Documentary evidence, including relevant excerpts from official records.
Exhibit C:  Notification of Guidance, SAF/MRBC to applicant, dated 22 May 19.
Exhibit D:  Advisory, BCMR Psychological Advisor, dated 7 Aug 19.
	Exhibit E:  Notification of advisory, SAF/MRBC to applicant, dated 6 Sep 19.

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 for Docket Number BC-2019-01820.