RECORD OF PROCEEDINGS

IN THE MATTER OF:	DOCKET NUMBER: BC-2020-01297

XXXXXXXX (MEMBER)	COUNSEL: XXXXXXX
	
	HEARING REQUESTED: NO

APPLICANT’S REQUEST

His Under Honorable Conditions (General) discharge be changed to reflect an Honorable discharge.

His narrative reason for separation of “Unsuitability-Apathy, Defective Attitude” be changed to reflect “Secretarial Authority”.

APPLICANT’S CONTENTIONS

By and through counsel, in the interest of equity this request warrants liberal consideration.  Specifically, the applicant received the diagnosis of post-traumatic stress disorder (PTSD) due to military sexual trauma (MST), which occurred during his service.  The MST that the applicant endured and resulted in PTSD actually excuses, mitigates, and outweigh the conduct that led to his discharge.  The applicant was visiting a video entertainment room on base; he began drinking and fell asleep.  He was awaken to a senior ranking airman sexually assaulting him.  Immediately, he got up, left the video room, and did not report the incident due to embarrassment.  Subsequently, he received two separate notifications of intent to impose non-judicial punishment (NJP) for being drunk and disorderly.  However, there is no indication of final adjudication of either record of NJP action.  Nevertheless, he was consequently discharge for “Unsuitability - Apathy, and Defective Attitude,” despite his records lacking any substantiating evidence of such behavior.  Routinely, victims of MST receive undesirable discharges, including “personality disorder” discharges, in retaliation for their reporting or for the protection of higher-ranking perpetrators.  During the applicant’s enlistment physical there was no annotation made in regards to any history of mental health conditions or sexually transmitted disease.  However, in his separation physical, there was affirmation of both.  On 28 June 2019, he initially acknowledged his MST to a Veteran Affairs (VA) Psychologist.  He was gave a provisional diagnosis of PTSD and later given an official diagnosis of depression and PTSD/MST by multiple licensed psychologists.  He suffers from disturbing memories, nightmares, negative thoughts, self-blame, anger, shame, depression, difficulty concentrating, difficulty sleeping, and thoughts of suicide.  

It is unreasonable to expect the same level of proof for MST, which occurred many years ago and the expectation of today, given that the military lacked the current restricted reporting, heightened protection for victims, and extensive training that is now widely available.  The evidence of sexual trauma can include changes in behavior, deterioration in work performance, inability to conform behavior to the expectations of a military environment, and substance abuse.  The applicant’s misconduct that led to his discharge may be evidence of the in-service occurrence of MST, as well as, the tests for sexually transmitted diseases and his testimony.   

The applicant’s complete submission is at Exhibit A.

STATEMENT OF FACTS

The applicant is a discharged Air Force airman first class (E-3).   

On 4 April 1982, the applicant’s commander notified him of a temporary decertification from the Personnel Reliability Program (PPR), pending the final determination of his qualifications for PRP in regards to his history of alcohol use and related incidents.  

On 2 May 1982, the applicant’s commander restricted him to the confines of the base.  Specifically, the applicant’s behavior over the last month was such that his commander judged it to be in his best interest to remain on base.  

On 25 May 1982, the Chief of Mental Health Services recommended the applicant’s entry into local alcohol rehabilitation with education and counseling due to his significant problem with alcohol.  

On 18 June 1982, the applicant’s commander recommended that he be discharge from the Air Force and furnished a General Discharge Certificate.  The initiation of this action was under the provisions of Air Force Manual (AFM) 39-12, Separation for Unsuitability, Misconduct, Resignation, or Request for Discharge for the Good of the Service and Procedures for the Rehabilitation Program, for apathy, defective attitude or inability to expend efforts constructively.  

The specific reasons for the proposed action were as follows:  

	a.  On 12 February 1982, the applicant received a Letter of Reprimand (LOR) for his failure to return on time from a permissive temporary duty assignment. 

	b.  On 22 February 1982, the applicant received a Letter of Counseling for switching shift work with another individual in his section without permission.

	c.  On 4 April 1982, according to a DD Form 1569, Incident/Complaint Report, the applicant assaulted an airman while on base and on a shuttle bus.  

	d.  On 6 April 1982, the applicant received an LOR, placement on the control roster for a period of 120 days, and the establishment of an unfavorable information file (UIF) due to his failure to maintain proper respect towards non-commissioned officers. 

e.  On 14 April 1982, the applicant received non-judicial punishment (NJP) under Article 15 of the Uniform Code of Military Justice (UCMJ) for being drunk and disorderly, in violation of Article 134, of the UCMJ and he received forfeitures of $200.00 per month for one month.     
	f.  On 6 May 1982, the applicant received an LOR for his involvement in an altercation with a non-commissioned officer over a card game, being disrespectful to a senior non-commissioned officer, and failure to report to his appointed place of duty.  

	g.  On 19 May 1982, the applicant received NJP action under Article 15 of the UCMJ for being drunk and disorderly, in violation of Article 134, of the UCMJ and he received a reduction to the grade of airman first class (E-3).       

On 18 June 1982, the applicant acknowledged receipt of the action and that legal counsel was available to assist him.  

On 30 June 1982, the applicant’s commander requested the appointment of an Evaluations Officer (EO) to review the applicant’s discharge under the provisions of AFM 39-12, effective 1 July 1982.  

On 8 July 1982, the applicant certified acknowledgement of his personal interview with the EO, advisement of the action taken against him, and elected to submit a rebuttal or statement concerning the action or the charges.    

On 9 July 1982, the EO found the applicant to be unsuitable for further military service and not a suitable candidate for rehabilitation.  He recommended the applicant receive a general discharge since his engagements for the last five months were not indicative of an individual that took his responsibility and his oath of office seriously.  

On 22 July 1982, the action was found to be legally sufficient and the discharge authority approved the applicant’s issuance of a general discharge, without probation and rehabilitation.  

On 2 August 1982, the applicant was issued an under honorable conditions (general) discharge, with a narrative reason for separation of “Unsuitability-Apathy, Defective Attitude,” along with a separation code of “JMJ” (motivational problems), and reenlistment (RE) code of “2B” (discharged under general or other-than-honorable conditions). He was credited with 2 years, 8 months, and 24 days of active service.  

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

AIR FORCE EVALUATION

AFBCMR Psychological Advisor recommends denying the application.  There is no substantiating evidence of the applicant’s alleged MST occurring in the service and no indication of any trauma, anxiety, depression, or any other mental health condition resulting from MST during his service.  There is no evidence that there is a nexus between his mental health condition and the alleged MST.  Moreover, there were no mental health issues such as depression, anxiety, or other stressors identified or reported during his time in service.  As such, there is insufficient evidence that his mental health mitigated his misconduct leading to his discharge from service. Acknowledgment for the reasoning of his non-disclosure during his time in the service is very understandable, as it is for individuals in similar circumstances.  While the applicant’s counsel has alluded to him reporting in his separation physical to having a sexually transmitted disease and nervous trouble referred to as his personal problems to be evidence of his MST in service, the evidence is not definitive but is accepted.  In addition, if the applicant is gave the benefit of the doubt based on his testimony alone, it is possible that he coped with his MST with the use of alcohol, which would mitigate his misconduct that led to his discharge from the service. 

The applicant reported his alleged MST occurred sometime in 1982. There is no clarification of the timeframe of the alleged incident, so it is difficult to determine when his difficulties began and/or if they would mitigate some, all, or none of his misconduct.  Secondly, the evaluation report for his discharge stated the applicant had pre-existing deterioration of performance that was identified prior to 1982 as evidenced by his decreased in performance ratings on his airman performance report and his removal from 5-level training for failure to progress in May 1981.  This standalone latter issue in fact, resulted in consideration for separation based on poor performance. At this point in his military career, there was already ample evidence that he could have been separated from service for unsuitability without his subsequent misconduct issues and alleged MST.  His leadership did not pursue this option at the time and therefore, could be an indication his leadership gave him a chance to improve his performance.  He also displayed poor insight and nonchalant attitudes about his behaviors when interviewed by the evaluation officer and the mental health care provider even though he had requested to remain in the service. Contrary to his report to his leadership that alcohol rehabilitation was not offered to him, his mental health evaluation actually recommended that he “entered into local alcohol rehabilitation with education and counseling offered by Det 37 Mental Health Services”. There was no indication in his records that he actually accepted and followed through with the recommendation to address his alcohol issues. His post service records indicated he first received mental health treatment for his substance abuse problems and depression in the 1990s, at least a decade post service. It is more likely than not that his post service stressors may have exacerbated his condition necessitating his treatment.  He had a gradual decline in performance and behaviors that had increased in severity and frequency during his last six months of service. This may explain his alleged MST, but this is purely speculative because no evidence corroborated this notion. 

The applicant had significant misconduct issues that actually met criteria for an administrative discharge; however, it was never pursued prior to the period of his alleged MST. He had opportunities to correct his behaviors and offered alcohol rehabilitation services to assist him, but it appeared the applicant was not receptive to these efforts for unknown reasons. His alleged MST may affected his behaviors in service, but the objective evidence from the snapshot in time of service overwhelms the lack of substantiating evidence to support the applicant’s claims. 

It appears from the applicant’s record that his problem with drinking continued and was exacerbated post service.  This led to multiple forms of mental health treatments for his alcohol and mental health issues starting in the 1990s.  He began receiving mental health treatment through Veterans Affairs (VA) 31 years post discharge, for endorsing depression, suicidal ideation, and polysubstance dependency issues with cocaine and alcohol. He currently receive services for unemployment, homelessness, school stress, and relationship problems.  His first report of his MST experience to his VA provider was on 28 June 2019, 36 years post discharge, and he provided details on 1 August 2019 that the incident occurred in 1982.  

In respect to the implementation of liberal consideration, while there was no substantiated evidence that the applicant’s alleged MST or PTSD condition existed, was experienced, or occurred during military service, his post service VA records revealed he received the diagnosis of PTSD caused by MST, which he alleges, happened during his military service.  Since there is nothing in his record to substantiate or support his experience/condition of MST existing, there is nothing to outweigh, excuse or mitigate his discharge.  However, considering the applicant’s testimony and giving him the benefit of the doubt that his report was factual, his mental health condition caused by his MST would then mitigate at least some but not all of his misconduct due to the vague period of the incident leading to his discharge from service.  

The complete advisory opinion is at Exhibit C.

APPLICABLE AUTHORITY

On 3 September 2014, the Secretary of Defense issued a memorandum providing guidance to military correction boards regarding liberal consideration for Vietnam veterans claiming PTSD (Hagel Memo).  In addition, time limits to reconsider decisions would be liberally waived for applications covered by this guidance. 

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 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.

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?

Copies of all guidance memoranda can be found at Exhibit D.

APPLICANT’S REVIEW OF AIR FORCE EVALUATION

The Board sent a copy of the advisory opinion, consent form, and consolidated clarifying guidance to the applicant’s counsel on 10 December 2020 for comment (Exhibit E).  In response, by and through counsel, she contended the recommendation fundamentally misapplies or ignores the dictates of the Kurta Memorandum as applied to considering and weighing evidence in cases of MST.  The applicant’s evidence of record clearly supports the granting of liberal consideration and the upgrade of his discharge.  While the applicant requested his entire service personnel record and the National Personnel Records Center attested to providing a complete file, the Board appears to have the benefit of a more detailed version of the applicant’s military personnel file.  The applicant does in fact have an experience and a resultant condition that may mitigate his discharge.  As directed by the Kurta Memorandum and noted in the applicant’s original application, evidence that sexual trauma took place during military service can include:  (1) changes in behavior, deterioration in work performance, inability to conform behavior to the expectations of a military environment, and substance abuse; (2) evidence of misconduct, including the misconduct which led to the veteran’s discharge; (3) tests for sexually transmitted diseases; and (4) the veterans testimony alone.  As such, it is clearly erroneous to conclude there was no substantiate evidence submitted by the applicant.  It is a common occurrence in cases of MST that the survivor may have the inability to give the precise date of the sexual assault.  In this case, it is difficult to ascertain what specific behaviors and instances of misconduct took place prior to or occurred after the applicant’s sexual assault.  Moreover, to exclude evidence based on the applicant’s inability to give a precise date of his sexual assault thirty-eight years later would not be consistent with the Board’s duty to apply liberal consideration.  The fact is the applicant suffered a sexual assault at the hands of a senior airman, causing him to incur PTSD, which led him to cope with his MST through alcohol.  Regardless of whether some portion of the applicant’s substandard performance could possibly have predated his MST, an Honorable discharge characterization does not require flawless military service.  The Board may not exclude evidence as unsubstantiated when it falls explicitly within the categories that the Kurta Memorandum demands to be considered as establishing in-service occurrences of a mitigating condition.  Lastly, the applicant gave permission for posting a redacted version of the Record of Proceedings to the public electronic reading room.  

The applicant’s counsel complete submission is at Exhibit F.

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 not the victim of an error or injustice.  The Board concurs with the rationale and recommendation of the Psychological Advisor and finds a preponderance of the evidence does not substantiate any of the cited contentions.  We note in one instance that counsel contends the Board appears to have the benefit of a more detailed version of the applicant’s military personnel file; however, the applicant acknowledged receipt of the cited actions depicted in the statement of facts.  We further note the applicant has provided no evidence that would lead us to believe the characterization of his service or narrative reason for separation were improper.  Specifically, the applicant’s military record notes pre-existing deterioration in his duty performance and behavior, as it relates to the date of his reported MST.  The Board reviewed the applicant’s record in its entirety and found no evidence to support that his PTSD due to MST was a mitigating factor to his behavior or misconduct, leading to his discharge.  As such, there is no established foundation to recommend granting the relief sought based on liberal consideration.  Therefore, the Board recommends against correcting the applicant’s records.

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-2020-01297 in Executive Session on 11 February 2021:

, 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 3 April 2020. 
Exhibit B:	Documentary evidence, including relevant excerpts from official records.
Exhibit C:	Advisory opinion, AFBCMR Psychological Advisor, dated 27 July 2020.
Exhibit D: Notification of Consolidated Clarifying Guidance and Consent Form, dated 
                 10 December 2020.  
Exhibit E:	Notification of advisory, SAF/MRBC to applicant, dated 10 December 2020.
Exhibit F:	Applicant counsel’s response, w/atchs, dated 29 December 2020.

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., for Docket Number BC-2020-01297.