RECORD OF PROCEEDINGS

IN THE MATTER OF:	DOCKET NUMBER: BC-2019-04686

XXXXXXXXXX	COUNSEL: NONE

	HEARING REQUESTED: NO

APPLICANT’S REQUEST

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

APPLICANT’S CONTENTIONS

He is receiving a 70 percent disability rating for having Major Depressive Disorder rated as Social Anxiety Disorder resulting from his negative experiences and racial discrimination that occurred while he was in the service.

The applicant’s complete submission is at Exhibit A.

STATEMENT OF FACTS

The applicant is a former airman first class (E-3).

On 14 December 2001, 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, chapter 5, paragraph 5.49, due to misconduct.  The specific reasons for the action were as follows:

	a.  Between on or about 20 February 2001 and on or about 20 May 2001, the applicant negligently failed to refrain from using his government credit card for personal use.  For this misconduct, he received an Article 15 nonjudicial punishment action.  The punishment consisted of a suspended reduction to the grade of airman, 14 days of extra duty and a reprimand.

	b.  On or about 5 July 2001 and again on or about 22 October 2001, the applicant failed to go to his appointed place of duty at the prescribed time.  For this misconduct, he received two Letters of Counseling (LOC).

	c.  On or about 24 August 2000 and again on or about 31 October 2001, the applicant failed to follow technical data during a maintenance operation on munitions support equipment.  For this misconduct, he received a Letter of Reprimand (LOR) and a LOC.

On 20 December 2001, the discharge action was found legally sufficient, and the discharge authority approved the recommendation.

On 9 January 2002, the applicant was discharged with a general discharge.  He served 2 years, 7 months and 17 days of active duty service.

On 6 June 2013, the Air Force Discharge Review Board (AFDRB) considered and denied the applicant’s request to upgrade his discharge to honorable.  The board concluded that the discharge was consistent with the procedural and substantive requirements of the discharge regulation and was within the discretion of the discharge authority and he was provided full administrative due process.

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

POST-SERVICE INFORMATION

On 19 November 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.

APPLICABLE AUTHORITY

On 3 September 2014, the Secretary of Defense issued supplemental guidance to the military corrections boards regarding liberal consideration for veterans claiming PTSD.  In addition, time limits to reconsider decisions would be liberally waived for applications covered by this guidance. 

Under Consideration of Mitigating Factors, it is noted that PTSD is not a likely cause of premeditated misconduct. Correction Boards will exercise caution in weighing evidence of mitigation in all cases of misconduct by carefully considering the likely causal relationship of symptoms to the misconduct. 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.

Subsequent guidance expanded liberal consideration protections to include all veterans who requested a modification of their discharge, to include character of service, narrative reason for discharge and reenlistment code, due in whole or in part to any mental health condition rather than
just PTSD or Traumatic Brain Injury (TBI) and also included those veterans who were victims of
sexual assault or sexual harassment. Liberal consideration would be given to veterans petitioning
for discharge relief when the application for relief is based in whole or in part on the aforementioned conditions.

Boards are directed to consider the following main questions when assessing requests due to mental health conditions including PTSD, TBI, sexual assault or sexual harassment:

a. Did the veteran have a condition or experience that may excuse or mitigate the discharge?
b. Did that condition exist/experience occur during military service?
c. Does that condition or experience actually excuse or mitigate the discharge?
d. Does that condition or experience outweigh the discharge?

Copies of all guidance memoranda can be found at Exhibit E.

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.

Under Other than Honorable Conditions.  When basing the reason for separation on a pattern of behavior or one or more acts or omissions that constitute a significant departure from the conduct expected of airmen. The member must have an opportunity for a hearing by an administrative discharge board or request discharge in lieu of trail by court-martial. Examples of such behavior, acts, or omissions include, but are not limited to:

•	The use of force or violence to produce serious bodily injury or death.

•	Abuse of a special position of trust.

•	Disregard by a superior of customary superior - subordinate relationships.

•	Acts or omissions that endanger the security of the United States.

•	Acts or omissions that endanger the health and welfare of other members of the Air Force.

•	Deliberate acts or omissions that seriously endanger the health and safety of other persons.

•	Rape, sexual assault, aggravated sexual contact, abusive sexual contact, rape of a child, sexual assault of a child, sexual abuse of a child, forcible sodomy and attempts to commit these offenses.

AIR FORCE EVALUATION

The AFBCMR Psychological Advisor recommends granting the application.  Although it is a possibility that the applicant experienced racial discrimination while in the service causing him to develop depression and social anxiety, there was no evidence in his military records of racial discrimination.  There is however, evidence that he had a mental health condition and other stressors necessitating mental health treatment and services that coincided with his misconduct while he was in the service.  He received two diagnoses while in the service, initially of Adjustment Disorder with Mixed Anxiety and Depressed Mood and then later to Adjustment Disorder with Mixed Disturbance of Emotions and Conduct.  This latter diagnosis provides a very significant clue into the clinical presentation of the applicant’s functioning at the snapshot in time.  When an individual receives this diagnosis with the subtype of “Mixed Disturbance of Emotions and Conduct”, it is indicating that his adjustment issues are manifested by depressed mood, tearfulness, or feelings of hopelessness but also in conjunction with the manifestation of conduct issues that are considered violations of rights of others or age-appropriate societal norms such as truancy, fighting, defaulting on responsibilities, etc.  In the applicant’s case, his societal norms would be military standards norm in which he demonstrated that he was unable to adhere and had received reprimands and UCMJ actions for his misconduct.  Thus, the Board may consider applying liberal consideration to the applicant’s case as his medical records indicated his mental health condition mitigated his misconduct leading to his discharge from service.

The complete advisory opinion is at Exhibit D.

APPLICANT’S REVIEW OF AIR FORCE EVALUATION

The Board sent a copy of the Air Force evaluation to the applicant on 7 May 2020 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 concludes the applicant is the victim of an error or injustice and recommends relief.  The Board notes the AFBCMR Psychological Advisor found no evidence in the applicant’s record of racial discrimination.  However, there is evidence that he had a mental health condition and other stressors necessitating mental health treatment and services that coincided with his misconduct while he was in the service.  The Board agrees with the Psychological Advisor’s recommendation and rationale that the liberal consideration policy be applied to the applicant’s request for relief.  Therefore, the Board 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 that on 9 January 2002, he was honorably discharged and issued an Honorable Discharge Certificate.

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-2019-04686 in Executive Session on 5 August 2020 and 23 September 2020:

Mr., Panel Chair 
Mr., Panel Member
Ms., Member

All members voted to correct the record.  The panel considered the following:

Exhibit A:	Application, DD Form 149, w/atchs, dated 7 September 2019.
Exhibit B:	Documentary evidence, including relevant excerpts from official records.
Exhibit C:  Notification of Clemency Guidance, SAF/MRBC to applicant, dated 
	      19 November 2019. 
Exhibit D:	Advisory opinion, AFBCMR Psychological Advisor, dated 4 February 2020.
Exhibit E:	Notification of advisory, SAF/MRBC to applicant, dated 7 May 2020.

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.