RECORD OF PROCEEDINGS

IN THE MATTER OF:	DOCKET NUMBER: BC-2019-04169

XXXXXXXXXXXXXXXXXXXX	COUNSEL: NONE

	HEARING REQUESTED: NO

APPLICANT’S REQUEST

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

APPLICANT’S CONTENTIONS

Since his discharge, he has been diagnosed with bipolar affective disorder.  He believes the binary nature of his service record (long periods of exemplary service followed by periods of risky behavior) to be consistent with bipolar/manic behavior.

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 17 May 04, the applicant was notified of his commander’s intent to recommend that 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 drug abuse.  The specific reasons for the action were: on or about 25 Jul 03 until on or about 13 Feb 04, on diverse occasions, the applicant wrongfully used Percocet, a Schedule II controlled substance.  Additionally, on or about 15 Aug 03, the applicant unlawfully entered a dormitory room with intent to steal prescription medication.  For this misconduct, the applicant received an Article 15 and was punished with a reduction to the grade of airman, 45 days extra duty, and a reprimand.

On 26 May 04, the discharge authority approved the discharge of the applicant with a general (under honorable conditions) characterization of service, without probation or rehabilitation.

On 7 Jun 04, the applicant was discharged with a general (under honorable conditions) character of service.  He was credited with 3 years, 5 months and 10 days of active service.

On 19 Nov 07, the applicant appealed to the Air Force Discharge Review Board (AFDRB) to upgrade his discharge to honorable.  On 22 Jan 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 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 remain unchanged.

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

POST-SERVICE INFORMATION

On 9 Oct 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 F.

AIR FORCE EVALUATION

The AFBCMR Psychiatric Advisor recommends denying the application.  The Psychiatric Advisor finds insufficient evidence to warrant the desired change to the record.  The applicant claims that his newly diagnosed Bipolar Affective Disorder (BAD) is responsible for his “risky behavior.”  The applicant provides medical records from the civilian facility where he received his psychiatric treatment and the documentation supports his diagnoses of BAD.  Nevertheless, the records also indicate a longstanding history of substance abuse.  The applicant’s Department of Veterans Affairs (DVA) records reflect many years of struggle with polysubstance dependence, and some anxiety, but not BAD.  Of note, the applicant’s VA care is sporadic and when he mentioned his hospitalization to the VA provider, he greatly minimized the seriousness of his condition.  This psychiatric advisor confirms the applicant’s claim that during manic/hypomanic episode, the individual can engage in “risky behaviors” such as substance abuse.  Furthermore, 40%-50% of patients with BAD also suffer from comorbid substance use disorder.  In fact, the applicant greatly misrepresented his history of substance use when he enlisted.  He disclosed use of marijuana on three occasions; however, his history was significantly more extensive.  Per VA records, “Pt reported a history of alcohol use starting at age 12 and a history of drug use starting at age 13.  He noted that his drug of choice was ‘pain pills’.  He reported that he entered treatment for substance abuse at 14 yo (Bradford) and attended rehab 3-4x during his high school years.  He reported entering rehab 3-4x since high school.”  Had the Air Force known of the applicant’s struggles, he would not have been cleared for enlistment.  Therefore, the applicant’s non-disclosure resulted in fraudulent enlistment.

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 28 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 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.

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-2019-04169 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, postmarked 15 Aug 19.
Exhibit B:	Documentary evidence, including relevant excerpts from official records.
Exhibit C:	Post Service Clemency Letter, dated 9 Oct 19.
Exhibit D:	Advisory opinion, AFBCMR Psychiatric, dated 25 Feb 20.
Exhibit E:	Notification of advisory, SAF/MRBC to applicant, dated 28 May 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.