RECORD OF PROCEEDINGS

IN THE MATTER OF:	DOCKET NUMBER: BC-2020-03544

xxxxxxxxxxxxx	COUNSEL: NONE

	HEARING REQUESTED: NO

APPLICANT’S REQUEST

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

APPLICANT’S CONTENTIONS

The Department of Veterans Affairs (DVA) granted him mental health disabilities, anxiety and depression, on 8 Jun 20 and was informed due to a law, his discharge could be reconsidered for an upgrade based on whether a mental health condition existed while on active duty that may have led to poor behaviors and a general discharge.  He strongly believes that if he had no mental health condition on active duty, he would have been a better airman and would still be serving.

In support of his request for clemency, the applicant provides a personal statement and numerous character reference letters. 

The applicant’s complete submission is at Exhibit A.

STATEMENT OF FACTS

The applicant is a former Air Force airman (E-2).

On 25 Apr 03, the applicant’s commander recommended the applicant be discharged from the Air Force, under the provisions of AFI 36-3208, Administrative Separation of Airmen, paragraph 5.54 for drug abuse.  The specific reasons for the action were:

a.	On 17 Apr 03, AF Form 3070, Record of Nonjudicial Punishment Proceedings, indicates applicant received nonjudicial punishment, Article 15 for wrongful use of marijuana.  He received a reduction in grade to airman (E-2) and 7 days of extra duty.
 
On 5 May 03, the Acting Staff Judge Advocate found the discharge action legally sufficient.

On 8 May 03, the discharge authority directed the applicant be discharged for drug abuse, with a general service characterization.  Probation and rehabilitation was not offered.

On 14 May 03, the applicant received a general (under honorable conditions) discharge.  His narrative reason for separation is “Misconduct” and he was credited with 2 years, 1 month, and 12 days of total active service.

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

POST-SERVICE INFORMATION

On 10 Feb 21, the Board sent the applicant a standard request for post-service information. This letter informed the applicant that a Federal Bureau of Investigation (FBI) background check would assist the Board in evaluating his case.  Although the applicant did provide post-service information with his original application, he did not include an FBI background check or other criminal history data.

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

AFI 36-3208, Administrative Separation of Airmen, describes the types of service characterization: 

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.  

AIR FORCE EVALUATION

The AFBCMR Psychological Advisor completed a review of all available records and finds sufficient evidence to support the applicant’s request for the desired changed to his records.  The applicant did not specifically discuss how his mental health condition affected his behaviors and discharge in this petition.  Nevertheless, he had explained the reasons in his response to his discharge action at the snapshot in time of service.  He reported he used marijuana one time to cope with his depression as it was a cry for help and related to the stressors of adapting to living in the mainland as he grew up in Hawaii.  His available medical records reported he was diagnosed with Adjustment Disorder with Depressed Mood and was prescribed antidepressant medication to treat his depression.  His medical records supported the accounts discussed in his personal statement.  This psychological advisor finds his explanation of his difficulties as compelling.  He admitted to having poor coping skills and used marijuana to find relief from depression.  Depression may cause an individual to have impaired judgment and exercise poor decision making skills, and it appeared the applicant was experiencing the same issues at the time of his marijuana use and coupled with his feelings of helplessness.  It is also noted, the severity of his depression may be considered moderate to severe since his mental health evaluation reported he also endorsed having passive suicidal ideation, indicating he had negative distorted thoughts, another common symptom of depression.  It is not known why the applicant did not seek medical assistance for his stressors prior to his drug use, but once he was able to receive the appropriate mental health treatment for his depression, his depression was reported to have improved.  His service treatment records substantiates the notion that he had a genuine mental health condition of depression during service and the residual effects and symptoms of this condition caused his behaviors/misconduct leading to his discharge from service.  The board may elect to apply liberal consideration to the applicant’s request due to his contention of a mental health condition.   There is evidence the applicant used marijuana to cope with his depression.  Because of this, his mental health condition and experience may have caused, excused, and mitigated his discharge, therefore, may have also outweighed his discharge.  

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 his mental health condition may have led to his poor behaviors and general discharge.

2.  Did the condition exist or experience occur during military service?
There is evidence the applicant reported he used marijuana to cope with his depression in his response to his discharge.  He was diagnosed with Adjustment Disorder with Depressed Mood and was prescribed an anti-depressant medication to treat his depression during service.

3.  Does the condition or experience excuse or mitigate the discharge?
There is evidence the applicant used marijuana to cope with his depression and therefore, his mental health condition and experience may explain, excuse or mitigate his discharge.

4.  Does the condition or experience outweigh the discharge?
Since his mental health condition and experience were found to have caused, excused, and mitigated his discharge, they also outweigh his 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 7 Dec 21 for comment (Exhibit E), but has received no response.

FINDINGS AND CONCLUSION

1.  The Board declines to assert the three-year limitation 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 the victim of an injustice.  While the Board finds no error in the original discharge process, the Board recommends relief based on liberal consideration.   The Board concurs with the rationale and recommendation of the AFBCMR Psychological Advisor and finds a preponderance of the evidence does substantiate the applicant’s contentions.  In particular, there is evidence the applicant used marijuana to cope with his depression.  Because of this, his mental health condition and experience were found to have caused, excused, and mitigated his discharge, therefore, may have also outweighed his discharge.   

RECOMMENDATION

The pertinent military records of the Department of the Air Force relating to APPLICANT be corrected to show on 14 May 2003, he was discharged with service characterized as “honorable,” separation code of “JFF” and corresponding narrative reason for separation of “Secretarial Authority.”

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-2021-00887 in Executive Session on 26 Jan 22:

, Panel Chair
, Panel Member
, Panel Member

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

Exhibit A:	Application, DD Form 149, w/atchs, dated 21 Oct 20.
Exhibit B:	Documentary Evidence, including relevant excerpts from official records.
Exhibit C:	Letter, SAF/MRBC, w/atchs (Post-Service Request and Liberal Consideration  
                  Guidance), dated 10 Feb 21.
Exhibit D:	Advisory Opinion, AFBCMR Psychological Advisor, dated 17 Jun 21.
Exhibit E:	Notification of Advisory, SAF/MRBC to Applicant, dated 7 Dec 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.