RECORD OF PROCEEDINGS

IN THE MATTER OF:	DOCKET NUMBER: BC-2020-02357

xxxxxxxxxxx	COUNSEL: NONE
	
	HEARING REQUESTED: NO	

APPLICANT’S REQUEST 

His “Uncharacterized” Entry Level Separation (ELS) be upgraded to an honorable discharge.

APPLICANT’S CONTENTIONS

He was informed that he could have his ELS upgraded to an honorable discharge.  He indicated on his application that Post-Traumatic Stress Disorder (PTSD) was an issue in regard to his discharge and stated he should be recognized for his service.

The applicant’s complete submission is at Exhibit A.

STATEMENT OF FACTS

The applicant is a former Air Force airman basic (E-1).  

On 23 Mar 88, the applicant’s commander recommended he be discharged from the Air Force, under the provisions of AFR 39-10, Administrative Separation of Airmen, paragraph 5-22b(2).  

The specific reasons for the action were as follows:

a. On or about 22 Jan 88, he expressed emotional distress and was upset at serving in the military and stated that he wished to be discharged.

b. On or about 25 Jan 88, he was diagnosed by a psychologist as having an adjustment disorder with mixed emotional features. 

c.  On or about 1 Mar 88, he failed his Block IV test with a score of 45 percent.

On 29 Mar 88, the discharge authority directed the applicant be discharged for unsatisfactory entry-level performance, with an “Uncharacterized” service characterization.  

On 29 Mar 88, the applicant received an uncharacterized, ELS with a narrative reason for separation of “Entry Level Performance.”  He served 5 months and 17 days of active duty.

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

POST-SERVICE INFORMATION

On 28 Apr 21, 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/GUIDANCE

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.

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.

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?

On 25 Jul 18, the Under Secretary of Defense for Personnel and Readiness (USD P&R) issued supplemental guidance to military corrections boards in determining whether relief is warranted based on equity, injustice, or clemency.  These standards authorize the board to grant relief in order to ensure fundamental fairness.  Clemency refers to relief specifically granted from a criminal sentence and is a part of the broad authority Boards have to ensure fundamental fairness.  This guidance applies to more than clemency from sentencing in a court-martial; it also applies to any other corrections, including changes in a discharge, which may be warranted on equity or relief from injustice grounds.  This guidance does not mandate relief, but rather provides standards and principles to guide Boards in application of their equitable relief authority.  Each case will be assessed on its own merits.  The relative weight of each principle and whether the principle supports relief in a particular case, are within the sound discretion of each Board.  In determining whether to grant relief on the basis of equity, an injustice, or clemency grounds, the Board should refer to the supplemental guidance, paragraphs 6 and 7. 

On 3 Feb 21, the Board staff provided the applicant a copy of the liberal consideration guidance (Exhibit C).

According to AFI 36-3208, incorporating changes through 8 Jun 17, 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 trial by court-martial.  

Entry Level Separation.  Airmen are in entry level status during the first 180 days of continuous active military service or the first 180 days of continuous active military service after a break of more than 92 days of active service.  Determine the member's status by the date of notification; thus, if the member is in entry level status when initiating the separation action, describe it as an entry level separation unless: 

•	A service characterization of under other than honorable conditions is authorized under the reason for discharge and is warranted by the circumstances of the case; or 

•	The Secretary of the Air Force determines, on a case-by-case basis, that characterization as honorable is clearly warranted by unusual circumstances of personal conduct and performance of military duty.

AIR FORCE EVALUATION

The AFRBA Psychological Advisor completed a review of all available records and finds insufficient evidence to support the applicant’s request for the desired changes to his record.  A review of the applicant’s records found multiple documents to include a counseling session with his leadership, a mental health evaluation, and academic performance records reporting his difficulties adjusting to the military due to his personal relationship problems – specifically being away from his expectant fiancé.  His emotional distress gradually began to affect his functioning and performance in the military causing him to lose motivation and confidence, which led to a failed block test.  He was discharged from service due to his poor performance and conduct and his character of service was classified as uncharacterized, ELS per AFR 39-10 that was in effect at the time of his discharge.  This policy is also consistent with the updated and current regulations of AFI 36-3208, Administrative Separation of Airmen. The airman is given an ELS with uncharacterized service characterization when separation is initiated in the first 180 days continuous active service.  The Department of Defense (DoD) determined if a member served less than 180 days of continuous active service, it would be unfair to the member and the service to characterize their limited service.  As a result, this psychological advisor finds no errors identified with his discharge processing from service and no error with his designated uncharacterized character of service discharge.  There is no error identified with the applicant’s ELS discharge and his uncharacterized, character of service discharge was consistent with regulations at the time of discharge. Therefore, his condition and experiences do not excuse, mitigate, or outweigh his original discharge.

Liberal consideration is applied to the applicant’s request due to the contention of a mental health condition.  The following are responses to the four questions in the policy based on the available records for review:

1.  Did the veteran have a condition or experience that may excuse or mitigate the discharge? 
The applicant made no mental health contentions, but he was discharged from service for poor performance and conduct related to his adjustment and personal issues. 

2.  Did the condition exist or experience occur during military service?
The applicant was given a diagnosis of Adjustment Disorder with Mixed Emotional Features during service as a result of his command referred mental health evaluation.

3.  Does the condition or experience excuse or mitigate the discharge?
The applicant’s performance issues, and conduct caused by and related to his Adjustment Disorder were the reasons for his discharge.  These conditions or experiences do not excuse or mitigate his discharge.

4.  Does the condition or experience outweighs the discharge?
There is no error identified with the applicant’s ELS discharge and his Uncharacterized character of service discharge was consistent to regulations at the time of discharge.  Therefore, his condition and experiences do not outweigh his original discharge.

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 20 Apr 21 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.  The Board concurs with the rationale of the AFRBA Psychological Advisor and finds a preponderance of the evidence does not substantiate the applicant’s contentions. 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.  The Board considered liberal consideration due to his contention of a mental health condition, however, the applicant’s performance issues, and conduct caused by and related to his Adjustment Disorder were the reasons for his discharge.  Therefore, his condition and experiences do not excuse, mitigate, or outweigh his original discharge.  In the interest of justice, the Board considered upgrading the discharge based on clemency; however, given the lack of evidence presented by the applicant, and in the absence of post-service information and criminal history, the Board finds no basis to do so.  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-2020-02357 in Executive Session on 18 Aug 21:

, 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 1 Jun 20.
Exhibit B:	Documentary evidence, including relevant excerpts from official records.
Exhibit C:  Notification of Clarifying Guidance, dated 3 Feb 21.
Exhibit C:	Advisory opinion, AFBCMR Psychological Advisor, dated 2 Apr 21.
Exhibit D:	Notification of advisory, SAF/MRBC to applicant, dated 20 Apr 21.
	Exhibit E:  Request for FBI background check, dated 28 Apr 21.

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.