RECORD OF PROCEEDINGS

IN THE MATTER OF:	DOCKET NUMBER: BC-2020-00655

XXXXXXXXXXXXXXXXX	COUNSEL: XXXXXXXXXXXXXXXX

	HEARING REQUESTED: YES

APPLICANT’S REQUEST

1.  His records be corrected to reflect that he was not discharged on 1 May 14, but continued to serve until the end of his six year enlistment contract, 6 May 19, and awarded the associated back pay and allowances.

2.  All records inconsistent with the requested relief be destroyed.

3.  In the applicant’s rebuttal dated 5 Oct 20, he also requested that his Reenlistment Eligibility (RE) code of “2C,” which denotes “Involuntarily separated with an honorable discharge; or entry level separation without characterization of service,” be changed.

APPLICANT’S CONTENTIONS

He was wrongfully discharged from the Air Force.  He was misdiagnosed with a personality disorder by an Air Force psychiatrist and was administratively discharged due to this misdiagnosis.  He never had a personality disorder and all of his medical records and evaluations support this.  The evidence shows that the Air Force did not follow its own instructions during the administrative separation process.  He had an on-going dental issue but was discharged before he could resolve.  The Air Force Discharge Review Board (AFDRB) partially corrected his records in 2016 (changed his narrative reason for separation from Personality Disorder to Secretarial Authority) after determining he was not provided full administrative due process.  However, the AFDRB did not address his wrongful discharge and did not offer full and complete relief.  He request the Board grant any other appropriate and just relief to make him completely whole.

The applicant’s complete submission, with attachments, is at Exhibit A.

STATEMENT OF FACTS

On 7 May 13, the applicant enlisted in the Air Force for a term of six years.

On 8 Apr 14, 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 for Conditions that Interfere with Military  Service-Personality Disorder not otherwise specified (NOS).  The specific reason for the action was as follows: 

	On 26, 27 and 31 Mar 14, a Board Certified Clinical Psychologist evaluated the applicant and determined he exhibited symptoms that were consistent with a diagnosis of Personality Disorder NOS, with Cluster A features.  Specifically, he had difficulty interacting with others, and preferred to avoid contact with others out of concern that they would negatively evaluate him.  The Psychologist further determined the applicant’s diagnosis of Personality Disorder NOS, with Cluster A features was so severe that his ability to function effectively in the military environment was significantly impaired and he was considered unsuited for continued service in the Air Force.  This diagnosis was evident by his Commander-Directed Mental Health Evaluation dated 31 Mar 14.

	Although not pertinent to the basis for discharge, the following additional information was relevant to this action to determine whether the applicant should be discharged or retained in the Air Force:

a.	On or about 28 Oct 13, the applicant received a letter of counseling (LOC) for failing to report to his appointed place of duty.

b.	On or about 17 Nov 13, the applicant received a letter of reprimand (LOR) for failing to obey a lawful order given to him by two non-commissioned officers.

c.	Between on or about 10 Mar 14 and 14 Mar 14, the applicant received verbal counseling and a memorandum for record (MFR) for his behavior while attending the First Term Airmen Center (FTAC) course.  He failed to follow the instructions given, failed to complete written exercises, showed lack of interest with the FTAC leaders and attendees, refused to integrate with other attendees, and had a verbal confrontation with another FTAC attendee.

On 17 Apr 14, the discharge action was found legally sufficient, and the discharge authority approved the recommendation on 18 Apr 14.

On 1 May 14, the applicant was honorably discharged in the grade of airman first class (E-3).  His narrative reason for separation was Personality Disorder and his reentry code is “2C.”  He was credited with 11 months and 25 days of active service.

On 14 Mar 16, the applicant appealed to the Air Force Discharge Review Board (AFDRB) to change his narrative reason for separation and to correct his RE code.  On 27 Sep 16, the AFDRB concluded the discharge was inconsistent with the procedural and substantive requirements of the discharge regulation and found the applicant was not provided full administrative due process.  After a thorough review of the record and advice from the mental health specialist, the Board found sufficient evidence that the applicant did not have a personality disorder or any other mental health issues.  Additionally, the Board found evidence to justify a change of reason and authority for the discharge; however, a change to the reenlistment code was not warranted.  The Board further concluded that the reason for the discharge was more accurately described as Secretarial Authority under the provisions of Title 10, United States Code 1553.  The applicant’s DD Form 214, Certificate of Release or Discharge from Active Duty, was corrected to change his narrative reason for separation to “Secretarial Authority.”

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

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 Post Traumatic Stress Disorder (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.

Currently, service members diagnosed with mental health conditions receive heightened screening to ensure the causal relationship of possible symptoms and discharge basis is fully considered, and characterization of service is appropriate.  Veterans discharged under prior procedures, or before verifiable diagnosis, may not have suffered an error because the separation authority was unaware of their condition or experience at the time of discharge.  However, when compared to similarly situated individuals under current standards, they may be the victim of injustice because commanders fully informed of such conditions and causal relationships today may opt for a less prejudicial discharge to ensure the veteran retains certain benefits, such as medical care.

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.

On 25 Jul 18, the USD P&R issued further guidance with the intent to set clear standards.

Copies of the Board guidance memoranda are at Exhibit G.

AIR FORCE EVALUATION

The AFBCMR Psychological Advisor recommends denying the application.  The Psychological Advisor finds insufficient evidence to support the applicant’s requests for changes to his records and compensation for the alleged error in his discharge.  There was no error identified with his discharge processing that would warrant the desired changes to his records.  A review of the records found he had pre-existing mental health conditions of Anxiety Disorder and Pervasive Development Disorder in which the applicant did in fact receive a waiver in order to be retained in the service.  His pre-existing mental health condition was later corroborated through his consistent self-reports to his military providers and to the Department of Veterans Affairs (VA) evaluator post service.  Although the Air Force did eventually accept these conditions as they were denied initially, the applicant continued to display symptoms of these conditions such as anxiety, social isolation, poor social interactions, and academic difficulties that interfered with his ability to function appropriately in the service.  The reason for his command directed evaluation (CDE) was not clearly stated in his medical records, but it is still an indication that his commander was concerned of his display of maladaptive behavioral patterns that a referral for an evaluation was necessary, especially since he was only at the squadron for a short period of time.  The applicant’s mental health treatment history in service also sheds light on his behavioral pattern – he would have exacerbation of symptoms prompting him to seek treatment and then terminate quickly thereafter once his symptoms dissipated or improved.  He received a total of four iterations of mental health encounters/treatments to include, an emergency room (ER) visit for anxiety and paranoia during his 11 months of service, signifying his difficulties of coping and adapting to the military environment.  His difficulties were clearly documented to have existed prior to service (EPTS) that continued to manifest itself while in service constituting them to become disqualifying conditions for continued military service.  When the applicant was evaluated for the command directed evaluation, the provider made no mention of any EPTS conditions but this could be due to the lack of access of records.  Nevertheless, the Cluster A personality traits that were identified by the military psychologist and the VA evaluator could also share traits and symptoms found in Anxiety and Pervasive Development Disorders.  There could be many factors for the reasons the applicant’s conditions/symptoms were not clearly identified when he was evaluated, such as age (it may take time for symptoms to fully appear), lack of insight into his symptoms, self-reporting, etc.  Regardless of the reasons, the applicant had demonstrated he had difficulties due to his pre-existing mental health conditions that made him unsuiting for continued service leading to his administrative separation.  Hence, there was no error identified in his discharge processing.  Finally, the applicant had no unfitting mental health condition that would meet criteria for a medical separation from service because his condition was EPTS without permanent aggravation by military service.

The complete advisory opinion is at Exhibit C.

SAF/MRBP recommends denying the applicant’s request to change his RE code.  Based on the documentation provided by the applicant and analysis of the facts, there is no further evidence of an error or injustice regarding the applicant’s discharge.  His record has already been corrected per the Department of Defense’s (DoD) direction and no further inequity or impropriety can be found in his record.  Also, the mental health advisor conducted another review of the applicant’s medical records and found that there is sufficient evidence that the applicant had mental health conditions prior to service and were not aggravated by his time in service.  SAF/MRBP found that the relief provided by the AFDRB for the narrative reasoning was sufficient and just.  Per guidance from the DoD, when an applicant requests to change the narrative reason, the board should approve the request, specifically when the original narrative reason was Adjustment/Personality Disorder and there were no aggravating factors in the record, such as misconduct.  While the applicant had misconduct, this was the reasoning that led to a command directed evaluation, which determined his condition unfitting for service.  The board determined the facts in this case met the criteria and, therefore approved the applicant’s request to change the narrative reason.  The applicant’s request to have his RE code changed from “2C” to allow for re-enlistment could not be supported due to current policies.  Under DoDI 6130.03, Medical Standards for Appointment, Enlistment, or Induction in the Military Services, under Learning, Psychiatric, and Behavioral Condition, the applicant’s reported history of mental health conditions or disorders prior to and during service are considered disqualifying conditions for induction into military service.

The complete advisory opinion is at Exhibit D.

APPLICANT’S REVIEW OF AIR FORCE EVALUATION

The Board sent copies of the advisory opinions to the applicant on 9 Sep 20 for comment (Exhibit E), and the applicant replied on 5 Oct 20.  In his response, the applicant contends the SAF/MRBP advisory opinion incorrectly states he was not granted a waiver for his mental condition.  His records clearly indicate that a waiver was granted for his pre-service mental health treatment.  This analysis is also corroborated by the AFBCMR mental health advisory opinion which references the same portion of the applicant’s medical records and it appeared he successfully appealed the decision and was returned to duty.  His records indicate the AF granted him a waiver, but instead of allowing him to continue to serve, the unit separated him for a personality disorder under the pretext that if he was not separated for it, he would be separated for misconduct.  Based on the waiver and the misdiagnosis, the AF had no medical reasons to separate him.  This was recognized in the AFDRB’s decision to change the narrative reason for separation.  Since he had no mental health issues at the time he was separated, he should not have been discharged and therefore, his RE code should not be “2C.”  Because his narrative reason for separation is “Secretarial Authority,” his RE code should match his narrative reason for separation.  His pre-existing condition was aggravated by his military service as documented in his records by the level of harassment and bullying he received from other airmen.  He had minor disciplinary issues but served honorably while in the AF.  The records also indicate that he was never medically examined by the AF to determine whether he should be entitled to compensation for any medical conditions or disabilities that were aggravated by his military service.  After separation, the VA provider ruled out that the applicant had a personality disorder, explaining that this was conservative, but it also could not be accurately established based on a brief meeting.  The overwhelming evidence strongly suggests that he was wrongfully discharged under the pretext of having a personality disorder.

The applicant’s complete response is at Exhibit F.

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 not the victim of an error or injustice.  The Board concurs with the rationale and recommendation of the AFBCMR Psychological Advisor and SAF/MRBP and finds a preponderance of the evidence does not substantiate the applicant’s contentions.  The Board also notes the applicant did not file the application within three years of discovering the alleged error or injustice, as required by Section 1552 of Title 10, United States Code, and Air Force Instruction 36-2603, Air Force Board for Correction of Military Records (AFBCMR).  The Board does not find it in the interest of justice to waive the three-year filing requirement.  Finally, the Board is satisfied that the application of liberal consideration does not warrant any relief.  Therefore, the Board finds the application untimely and recommends against correcting the applicant’s records.

4.  The applicant has not shown a personal appearance, with or without counsel, would materially add to the Board’s understanding of the issues involved.

RECOMMENDATION

The Board recommends informing the applicant the application was not timely filed; it would not be in the interest of justice to excuse the delay; 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-2020-00655 in Executive Session on 4 Nov 20:

, 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 21 Nov 19.
Exhibit B:	Documentary evidence, including relevant excerpts from official records.
Exhibit C:	Advisory opinion, AFBCMR Psychological Advisor, dated 31 Jul 20.
Exhibit D:	Advisory opinion, SAF/MRBP, dated 31 Jul 20.
Exhibit E:	Notification of advisory, SAF/MRBC to applicant, dated 9 Sep 20.
Exhibit F:	Applicant’s response, dated 5 Oct 20.
Exhibit G:	Consolidated clarifying guidance, various dates.

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.