RECORD OF PROCEEDINGS

IN THE MATTER OF:	DOCKET NUMBER: BC-2019-03141

XXXXXXXXXXXXXXXXXX	COUNSEL: NONE

	HEARING REQUESTED: YES

APPLICANT’S REQUEST

His discharge under other than honorable conditions be upgraded to an honorable discharge.

APPLICANT’S CONTENTIONS

He was falsely accused and charged with committing arson subsequent to a 26 Sep 79 fire in his dormitory.  On 5 Oct 79, all of the charges were dismissed, as the investigation concluded that another individual was responsible for the fire.  His roommate at the time of the fire, who he had found unconscious and pulled to safety, was found guilty of aggravated arson and homicide at his follow-on station of assignment.  Due to the event and the legal case which followed, he was treated with suspicion and harassed.  His mental health began to falter and his ability to make sound decisions was hindered.  Lastly, he was discharged due to a false accusation of larceny.  The victim of the theft admitted that he most likely had no ill intent; however, security police continued to charge him.  The Department of Veterans Affairs has characterized his service as under honorable conditions [sic].

The applicant’s complete submission, with attachments, is at Exhibit A.

STATEMENT OF FACTS

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

On 29 Jan 80, after consulting with counsel, the applicant submitted a letter to his commander requesting to be discharged under AFM 39-12, Separation for Unsuitability, Misconduct, Resignation, or Request for Discharge for the Good of the Service and Procedures for the Rehabilitation Program, for the Good of the Service.  The applicant acknowledged that the request, if approved, may result in him receiving an under other than honorable conditions discharge (regardless of the recommendation of his commander).

On 29 Jan 80, the applicant’s area defense counsel recommended to the commander that the request for discharge be approved and that it would be in the best interest of both the Air Force and the applicant.  The applicant was currently facing court-martial charges for larceny and submitted the request for discharge in lieu of court-martial in accordance with AFM 39-12.

On 30 Jan 80, the commander recommended that the applicant’s request for discharge in lieu of court-martial be accepted and he be separated with an under honorable conditions (general) discharge. 

On 14 Feb 80, the Staff Judge Advocate found the request for discharge legally sufficient, recommended that the request be approved, and that the applicant be separated with an under other than honorable conditions discharge.  However, since the applicant was currently being held as a witness for an upcoming court-martial, the execution of the approved discharge was suspended pending coordination with OSI.  The discharge authority approved the recommendation on  20 Feb 80.

On 26 Mar 80, the applicant was discharged with an under other than honorable conditions character of service.  His narrative reason for separation is Request for Discharge for the Good of the Service.  He was credited with 1 year, 1 month, and 26 days of active service.

On 17 Dec 85, the applicant appealed to the Air Force Discharge Review Board (AFDRB) to upgrade his discharge to honorable.  On 10 Mar 87, the AFDRB concluded the discharge was consistent with the procedural and substantive requirements of the discharge regulation and was within the discretion of the discharge authority and the applicant was provided full administrative due process.  The board further concluded that no legal or equitable basis for upgrade of the discharge existed and determined the discharge should not be changed.

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 Jul 19, the Board sent the applicant a request for post-service information (Exhibit C), including a standard criminal history report from the Federal Bureau of Investigation (FBI); however, he has not replied.

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.

Copies of the Board guidance memoranda are at Exhibit F.

AIR FORCE EVALUATION

The AFBCMR Psychological Advisor finds some evidence that the applicant’s mental health condition mitigated some, but not all, of his misconduct.  There was no intellectual impairment identified when the applicant was evaluated by a mental health professional in service and so although his mental health condition could mitigate some of his behaviors and misconduct, it does not mitigate all, including the larceny incident.  The Board may consider upgrading the applicant’s character of service to a general (under honorable conditions) based on liberal consideration.  The Board may also decide whether the applicant’s patterns of misconduct would raise to the level of an under other than honorable conditions discharge based on present time’s standard procedures.  There is no evidence that an honorable discharge would be warranted since some of his behaviors were deliberate/premeditated.

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 8 May 20 for comment (Exhibit E), but has received no response.

FINDINGS AND CONCLUSION

1.  The application is timely.  Given the requirement for passage of time, all clemency requests are technically untimely.  However, it would be illogical to deny a clemency application as untimely, since the Board typically looks for over 15 years of good conduct post-service.  Therefore, the Board declines to assert the three-year limitations period established by 10 U.S.C. § 1552(b).

2.  The applicant exhausted all available non-judicial relief before applying to the Board.

3.  After reviewing all Exhibits, the Board majority concludes the applicant is not the victim of an error or injustice.  It appears the discharge was consistent with the substantive requirements of the discharge regulation and was within the commander’s discretion.  Nor was the discharge unduly harsh or disproportionate to the offenses committed.  In the interest of justice, the Board majority considered upgrading the discharge based on clemency; however, given the evidence presented, and in the absence of post-service information, the Board finds no basis to do so.  Therefore, the majority of the Board recommends against correcting the applicant’s record.

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-2019-03141 in Executive Session on 30 Jun 20:

, Panel Chair
, Panel Member
	, Panel Member

A majority of the panel voted not to correct the record.  XXXXXXX voted to upgrade the applicant’s discharge to general, however, he did not provide a minority opinion.  The panel considered the following:

Exhibit A:	Application, DD Form 149, w/atchs, dated 13 Jun 19.
Exhibit B:	Documentary evidence, including relevant excerpts from official records.
Exhibit C:  Post Service Clemency Letter, dated 22 Jul 19.
Exhibit D:	Advisory opinion, AFBCMR Psychological Advisor, dated 23 Jan 20.
Exhibit E:	Notification of advisory, SAF/MRBC to applicant, dated 8 May 20.
Exhibit F:	Consolidated clarifying guidance, 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.