RECORD OF PROCEEDINGS

IN THE MATTER OF:	DOCKET NUMBER: BC-2019-03944

XXXXXXXXXXXXXXXXXXX	COUNSEL: NONE

	HEARING REQUESTED: YES

APPLICANT’S REQUEST

1.  His general (under honorable conditions) discharge be upgraded to honorable.

2.  His DD Form 214, Certificate of Release or Discharge from Active Duty, Item 28, Narrative Reason for Separation be corrected to remove “Misconduct.”

3.  In the applicant’s rebuttal dated 7 Jul 20, he requested his record be corrected to allow use of the GI Bill benefits he paid for or receive a refund for the money he invested in the program.

APPLICANT’S CONTENTIONS

He began experiencing mental health issues prior to his discharge from the service in 2003.  He was discharged for “misconduct,” due to minor disciplinary infractions, some of which were the result of his undiagnosed disability.  While on active duty, he experienced episodes of fear and sleepless nights due to bomb threats post 9/11.  In 2008, after struggling with years of crippling panic attacks, the Department of Veterans Affairs (DVA) determined that his condition was service-connected.

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

STATEMENT OF FACTS

On 16 May 01, the applicant enlisted in the Air Force.  He was progressively promoted to the grade of airman first class (E-3).

On 19 Dec 03 [sic], the applicant’s commander recommended he be discharged from the Air Force, under the provisions of AFPD 36-32, Military Retirements and Separations and AFI 36-3208, Administrative Separation of Airmen for misconduct, specifically minor disciplinary infractions.  The specific reasons for the action were as follows:

a.	On or about 9 Jun 02, the applicant received a Letter of Counseling (LOC) for violating the base traffic code, which included failing to come to a complete stop.

b.	On or about 1 Sep 02, the applicant received a Letter of Reprimand (LOR) for violating the base traffic code, which included failing to come to a complete stop, driving without proof of insurance and using a radar detector on base.

c.	On or about 8 Sep 02, the applicant received a LOR and an Unfavorable Information File (UIF) was established, for disconnecting the smoke detector in his dormitory room and unlawfully burning incense in his room.

d.	On or about 24 Dec 02, the applicant received a Letter of Admonishment (LOA) for driving too fast for road conditions and causing a one-vehicle accident with a government vehicle.

e.	On or about 29 Apr 03, the applicant received a LOR for driving a vehicle with an invalid/expired registration.

f.	On or about 2 Jun 03 and on or about 4 Jun 03, the applicant received a LOR for failing to report to duty at the appointed time.

g.	On or about 29 Oct 03, the applicant received a LOC for dropping his cell phone from the eighth floor of the Air Traffic Control Tower which almost struck three individuals.

h.	On or about 8 Dec 03, the applicant received a LOR for making a false official statement to a non-commissioned officer and failing to obey a direct order from a non-commissioned officer.

On 23 Dec 03 [sic], the discharge action was found legally sufficient, and the discharge authority approved the recommendation on 24 Dec 03.

On 24 Dec 03, the applicant received a general (under honorable conditions) discharge.  His narrative reason for separation is Misconduct.

On 11 Nov 07, the applicant appealed to the Air Force Discharge Review Board (AFDRB) to upgrade his discharge to honorable.  On 16 Jul 09, 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 that the applicant was provided full administrative due process.  The board further concluded that there exists no legal or equitable basis for upgrade of discharge.

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

POST-SERVICE INFORMATION

On 21 Aug 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, 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 G.

Per AFI 36-3208, Administrative Separation of Airmen, the Montgomery GI Bill (MGIB) requires personnel entering active duty after 30 Jun 85 to receive an honorable discharge in order to qualify for educational benefits.

In accordance with DoD Instruction 1341.13, Enclosure 3 and AFI 36-2649, Voluntary Education Program, Attachment 13, A13.18.1.1., members are eligible to transfer benefits if service to the Armed Forces was on or after 1 Aug 09.  Additionally, 38 United States Code, Section 3319 (f)(1) states: “an individual approved to transfer entitlement to educational assistance under this section may transfer such entitlement only while serving as a member of the armed forces when the transfer is executed.”

AIR FORCE EVALUATION

The AFBCMR Psychiatric Advisor finds insufficient evidence to warrant the desired change to the record.  The Psychiatric Advisor would like to note that this is the applicant’s second appeal, as he had previously applied to the AFDRB and his request was denied.  At the time, the applicant claimed that his misconduct was a result of immaturity.  In his current petition, the applicant’s argument has changed and he asserts that he had suffered from undiagnosed depression and anxiety while in service.  Furthermore, he implies that his misconduct was a result of his mental health condition.  Upon detailed review of the applicant’s history of misconduct, it appears that four out of seven disciplinary infractions involved traffic violations.  The Psychiatric Advisor has struggled to establish the nexus between poor habits on the road and anxiety/depression symptoms.  The same applies towards burning incense and being untruthful about the boots.  The Psychiatric Advisor acknowledges that at the time of the applicant’s enlistment, the United States was in a peaceful state.  However, all of this had suddenly changed after the tragedy of 9/11.  Therefore, it is very possible that such a dramatic change could have resulted in a significant anxiety about his future service and most likely deployments to the combat zone.  Nevertheless, this psychological turmoil cannot explain the nature of his misconduct; and as stated previously by the applicant, his disciplinary infractions were most likely due to immaturity.

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 25 Jun 20 for comment (Exhibit E), and the applicant replied on 7 Jul 20.  In his response, the applicant contends that he is currently a 70 percent service-connected veteran.  He is requesting to have his discharge upgraded due to his service-connected mental health related challenges.  In addition, he invested in the GI Bill, but never received it.  He would like to receive his GI Bill or a refund of the money that he invested into the program.  

The applicant’s complete response is at Exhibit F.

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 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 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.  Finally, the Board is satisfied that the application of liberal consideration does not warrant any relief.  Therefore, 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-2019-03944 in Executive Session on 14 Oct 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 31 Jul 19.
Exhibit B:	Documentary evidence, including relevant excerpts from official records.
Exhibit C:	Post Service Clemency Letter, dated 21 Aug 19.
Exhibit D:	Advisory opinion, AFBCMR Psychiatric Advisor, dated 27 Mar 20.
Exhibit E:	Notification of advisory, SAF/MRBC to applicant, dated 3 Apr 20.
Exhibit F:	Applicant’s response, dated 7 Jul 20.
Exhibit G:	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.