RECORD OF PROCEEDINGS

IN THE MATTER OF:	DOCKET NUMBER: BC-2020-03010

XXXXXXXXXX	COUNSEL: NONE
	
	HEARING REQUESTED: NO

APPLICANT’S REQUEST

Her DD Form 214, Certificate of Release or Discharge from Active Duty, Block 28, Narrative Reason for Separation of “Misconduct (Drug Abuse)” be changed.  

APPLICANT’S CONTENTIONS

After returning from a deployment to XXXXXXX, she was severely depressed and did not know how to handle her emotions so she consumed “Spice (K2).”  She has since been diagnosed with post-traumatic stress disorder (PTSD) and has used the situation to grow into a better, rehabilitated person.  She apologizes for her past behavior. 

The applicant’s complete submission is at Exhibit A.

STATEMENT OF FACTS

The applicant is a discharged Air Force staff sergeant (E-5).   

On 13 Jun 12, the applicant’s commander recommended the applicant be discharged from the Air Force, under the provisions of AFI 36-3208,  Administrative Separation of Airmen, for Misconduct (Drug Abuse). 

On 21 Jun 12, the applicant waived her right to a hearing before an administrative discharge board, waived her right to military counsel and indicated she would not be submitting statements on her behalf.

On 29 Jun 12, the discharge authority approved the recommendation.

On 10 Jul 12, according to the applicant’s DD Form 214, she was discharged from the Air Force under authority of AFI 36-3208, with an Under Honorable Conditions (General) character of service and narrative reason for separation of Misconduct (Drug Abuse) with the corresponding separation code of HKK and reentry code of 2B.
On 23 Aug 13, the Air Force Discharge Review Board denied the applicant’s request for upgrade of discharge to honorable.

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

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.

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 (Wilkie Memo) 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 2 Mar 21, the Board staff provided the applicant a copy of the liberal consideration guidance (Exhibit C).

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 trial 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

AFPC/DP2SSR recommends denying the application.  Based on review of the master personnel records and the applicant’s request, there is no error or injustice with the discharge processing.  The commander provided ample information to the base discharge authority to support separation and the character of service. The base discharge authority determined that the significant negative aspects of the applicant’s misconduct outweighed the positive aspects of the applicant’s military career.  
The complete advisory opinion is at Exhibit C.

ADDITIONAL AIR FORCE EVALUATION

The AFRBA Psychological Advisor completed a review of all available records and finds sufficient evidence to support the applicant’s request for the desired changes to her records and opines liberal consideration should be applied to the applicant’s request due to the contention of a mental health condition.  The applicant contends she consumed spice, K2, upon her return from XXXXXXX and was severely depressed and did not know how to handle her emotions. She reported being diagnosed with PTSD and apologized for her behaviors. The applicant’s records reveal she returned from serving a one year deployment in XXXXXX (Mar 12), used synthetic cannabinoid two months after her return from deployment (May 12) and subsequently tested positive in Jun 12.  While the applicant denied experiencing any depression and anxiety during her Deployment Resiliency Assessment (also known as Post Deployment Health Assessment), in Jun 12; however, her evaluator reported the applicant was having difficulties reintegrating after returning from deployment. Her denial of her mental health symptoms was most likely influenced by advice from her defense counsel to not discuss the circumstances of her misconduct as she explained in her response to the LOR. Her discharge process was expeditious as she was notified for discharge in Jun 12 and was discharged the following month in Jul 12, and so it appeared there was no opportunities for her to receive treatment for her adjustment issues. It is reminded the applicant was discharged from service only four months after returning from deployment.  Her last treatment mental health note reported she was going to receive services from an off-base provider post discharge but no records were submitted by the applicant for review.  Despite the absence of any these potential records, the applicant completed a Compensation & Pension (C&P) exam by the Department of Veterans Affairs (DVA) in Apr 13 that was performed within one year of discharge.  Although she not given any diagnosis for PTSD at the time, she was given a diagnosis of Depressive Disorder NOS caused by her deployment, divorce, and discharge. The applicant informed the DVA evaluator of the difficulties she had experienced post deployment stating she had loss weight and was angry, frustrated and irritable.  Her depression continued to recur for years post discharge and in Dec 20, it was reported she continued to have difficulties with adjusting after returning from deployment causing her to feel depressed.  The applicant stated she used spice to cope with her depression caused by her deployment, which is a very plausible explanation due to the timeline of events and information reported during and post service to corroborate her reports.  Spice is a synthetic version of marijuana and is not an uncommon occurrence for individuals to use substances especially marijuana to cope with depression or other mental health issues.  This appears to be the case for the applicant. 

Liberal consideration is applied to the applicant’s request due to the contention of a mental health condition. The following are answers to the four questions from 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 contends she used spice because she was severely depressed after she returned from Afghanistan, had no one to talk to, and had no support. 
2.  Did the condition exist or experience occur during military service?
There is evidence in her service treatment records reporting she had difficulties reintegrating after she returned from Afghanistan in her Deployment Resiliency Assessment in June 2012.  Her C&P exam performed nine months post discharge in April 2013, reported she experienced depressive symptoms after she returned from deployment. 
3. Does the condition or experience excuse or mitigate the discharge?
The applicant returned from deployment in March 2012 and used spice two months later in May 2012. There is evidence she was depressed during this time frame that may lead or cause her to use spice to cope with her depression as she contended and would excuse and mitigate her discharge. 
4. Does the condition or experience outweighs the discharge?
Since there is evidence her mental health condition excuses or mitigates her discharge, her mental health condition and experience would outweigh her discharge.

The complete advisory opinion is at Exhibit D.

APPLICANT’S REVIEW OF AIR FORCE EVALUATIONS

The Board sent a copy of the advisory opinions to the applicant on 10 Mar 21 for comment (Exhibit E), but has received no response.

FINDINGS AND CONCLUSION

1.  The application was timely filed.

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.  The Board concurs with the review and rationale of the AFRBA Psychological Advisor and finds a preponderance of the evidence substantiates the applicant’s contentions.  While the Board finds no error in the original discharge process, the Board recommends relief based on liberal consideration due to the contention of a mental health condition.  Specifically, there is evidence in her service treatment records reporting she had difficulties reintegrating after she returned from Afghanistan in her Deployment Resiliency Assessment in June 2012.  Also, her compensation and pension (C&P) exam performed nine months post discharge in April 2013, reported she experienced depressive symptoms after she returned from deployment that more likely than not, mitigated her misconduct.  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 on 10 Jul 12, she received an honorable discharge with a narrative reason for separation of “Secretarial Authority,” and a separation code of “JFF.”

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-2020-03010 in Executive Session on 19 May 21:

	, Panel Chair
	, Panel Member
	, Panel Member

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

Exhibit A:	Application, DD Form 149, dated 28 Jul 20.
Exhibit B:	Documentary evidence, including relevant excerpts from official records.
Exhibit C:	Applicant Notification of Clarifying Guidance, dated 2 Mar 21
Exhibit D: Advisory opinion, AFPC/DP2SSR, dated 2 Mar 21.
Exhibit E: Advisory opinion, AFBCMR Psychological Advisor, dated 8 Mar 21.
Exhibit F:	Notification of advisories, SAF/MRBC to applicant, dated 10 Mar 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.