RECORD OF PROCEEDINGS

IN THE MATTER OF:	DOCKET NUMBER: BC-2020-00218

XXXXXXXXXX	COUNSEL: NONE

	HEARING REQUESTED: NO

APPLICANT’S REQUEST

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

2.  His rank be reinstated.

3.  Monetary compensation for pain and suffering and full benefits.

APPLICANT’S CONTENTIONS

He was discharged due to apathy and a defective attitude that was caused by an injury sustained while he was on active duty.  He received a concussion that was never treated.  One of the side effects of a concussion is apathy, which is the reason for his discharge.  Further, in 2018, the Department of Veterans Affairs (DVA) tested and diagnosed him with Traumatic Brain Injury (TBI).   

The applicant’s complete submission is at Exhibit A.

STATEMENT OF FACTS

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

The applicant entered active duty on 4 June 1980 as an airman basic.  

The applicant was promoted to airman effective 18 July 1980, and then to airman first class effective 18 January 1981. The applicant was demoted to airman basic effective 21 December 1981.  

On 11 January 1982, the applicant’s commander recommended the applicant be discharged from the Air Force, under the provisions of AFM 39-12, Chapter 2, Section A, Paragraph 2-4c, due to apathy and his defective attitude.  The specific reasons for the action were as follows:

	a.  On 8 July 1981, the applicant received a Letter of Reprimand for failed dormitory standards.

	b.  On 30 November 1981, the applicant received an Article 15 for derelict in the performance of duty.

	c.  On 17 December 1981, the applicant received an Article 15 for failure to obey a lawful order.

On 25 January 1982, the discharge action was found legally sufficient, and the discharge authority approved the recommendation.

On 26 January 1982, the applicant received a general (under honorable conditions) discharge. 
	
On 13 June 1988, 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 advisories at Exhibits C and D.

POST-SERVICE INFORMATION

On 24 April 2020, 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 (Exhibit F).

APPLICABLE AUTHORITY

On 3 Sep 14, 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

AFPC/DP2SPP recommend the applicant’s request to reinstate his rank be time barred.  Should the Board choose to decide the case, recommend it be denied based on lack of official documentation or evidence of an error or injustice.  The application has not been filed within the three-year time limitation imposed by AFI 36-2603, Air Force Board for Correction of Military Records, paragraph 3.5, 1 March 1996.  In addition to being untimely under the statute of limitations, the applicant’s request may also be dismissed under the equitable doctrine of laches, which denies relief to one who has unreasonably and inexcusably delayed asserting a claim.  Laches consists of two elements:  Inexcusable delay and prejudice to the Air Force resulting there from.  In the applicant’s case, he waited more than 60 [sic] years after discharge before he petitioned the AFBCMR.

The complete advisory opinion is at Exhibit C.

The AFBCMR Psychiatric Advisor recommends approval of the applicant’s request.  The Psychiatric Advisor finds sufficient evidence for the Board to consider the desired change of the record based on Liberal Considerations policy.  

The record shows the applicant sustained head trauma on 24 November 1981.  The injury was a result of the applicant’s failure to bring a vehicle to a complete stop prior to departure of the driver’s seat.  For this incident applicant received an Article 15 and 30 days of Correctional Custody.  Since the applicant’s head injury was a result of the negligent incident and not the other way around, this Article 15 would not be mitigated by the applicant’s TBI.  The applicant’s second Article 15 was a result of failure to obey an order to wax the floors while in the Correctional Custody.  This psychiatric advisor recognizes that the second offense took place three weeks post-concussion; however, it is still not fully clear how the two events are connected.  Interestingly, even though DVA has acknowledged applicant’s history of TBI, he was assigned zero percent rating, signifying minimal if any functional impairment. 

This psychiatric advisor recognizes the sacrifices the applicant has made for this country and appreciates his service.  Evidence was found that the motor vehicle accident and consequent mild TBI could potentially partially mitigate the applicant’s misconduct.  

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 24 April 2020 for comment (Exhibit E), but has received no response.

FINDINGS AND CONCLUSION

1.  The application was not 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 rationale and recommendation of the AFBCMR Psychiatric Advisor regarding upgrading the applicant’s character of service to honorable based on liberal consideration and finds a preponderance of the evidence substantiates the applicant’s contentions in part.  The Board notes the Psychiatric Advisor found evidence that the applicant’s second Article 15 that took place post the motor vehicle accident and consequent mild TBI could have partially mitigated the applicant’s misconduct.  The Board also notes the AFPC/DP2SPP Advisory indicates the applicant waited more than 60 years after his discharge to petition the AFBCMR, this is incorrect.  It has been 38 years since the applicant’s discharge.  Nevertheless, the Board believes that the applicant’s general (under honorable conditions) discharge should be upgraded to honorable and his rank be reinstated.  However, for the remainder of the applicant’s request, the evidence presented did not demonstrate an error or injustice, and the Board therefore finds no basis to recommend granting that portion of the applicant’s request.  Therefore, the Board recommends correcting the applicant’s records as indicated below.

RECOMMENDATION

The pertinent military records of the Department of the Air Force relating to the APPLICANT be corrected to show that:

	a.  On 21 December 1981, he was not demoted to the grade of airman basic.

	b.  On 26 January 1982, he was honorably discharged and issued an Honorable Discharge Certificate.

However, regarding the remainder of the applicant’s request, the Board recommends informing the applicant the evidence did not demonstrate material error or injustice, and the application will only be reconsidered upon receipt of relevant evidence not already considered by the Board.

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-2020-00218 in Executive Session on 19 August 2020:

, Panel Chair
, Panel Members
, Panel Member

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

Exhibit A:	Application, DD Form 149, w/atchs, dated 20 May 2019.
Exhibit B:	Documentary evidence, including relevant excerpts from official records.
Exhibit C:	Advisory opinion, AFPC/DP2SPP, dated 3 April 2020.
Exhibit D: Advisory opinion, AFBCMR Psychiatric Advisor, dated 17 April 2020.
Exhibit E:  Notification of Clemency Guidance, SAF/MRBC to applicant, dated 
	      24 April 2020. 
Exhibit F:	Notification of advisory, SAF/MRBC to applicant, dated 24 April 2020.

Taken together with all Exhibits, this document constitutes the true and complete Record of Proceedings pertaining to Docket Number BC-2020-00218, as required by AFI 36-2603, paragraph 4.11.9.