RECORD OF PROCEEDINGS

IN THE MATTER OF:	DOCKET NUMBER: BC-2020-01425

XXXXXXXXXXXXXX	COUNSEL: XXXXXXXXXXX

                                                                                                                XXXXXXXXXXX

	HEARING REQUESTED: NO

APPLICANT’S REQUEST

Upgrade his Bad Conduct Discharge (BCD) to Honorable.  In the alternative, upgrade his BCD to an Under Honorable Conditions (General), or a Medical discharge.  

APPLICANT’S CONTENTIONS

In an 11-page legal brief, the applicant, through counsel, contends the following:

His court martial hearing and subsequent BCD was an error due to ineffective assistance of counsel during the special court martial hearing.  His counsel failed to raise the defenses of insanity, self-defense, and voluntary intoxication to mitigate his offense.  Additionally, his BCD is an injustice, pursuant to the guidelines articulated in the Kurta and Wilkie memorandums.  Finally, he has turned his life around, achieving many post-service accomplishments that warrants consideration upgrading his BCD based on clemency.     

The applicant’s complete submission is at Exhibit A.

STATEMENT OF FACTS

According to documents submitted by the applicant: 

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

On 18 Jul 1985, he initially entered the Regular Air Force. 

On 27 Nov 1985, the applicant received Nonjudicial Punishment (NJP) in violation of Article 92, Uniformed Code of Military Justice (UCMJ), for wrongfully violating curfew, which consisted of a forfeiture of $100.00 pay, and ordered to undergo correctional custody for 7 consecutive days.  

On 4 Nov 1986, the applicant received NJP in violation of Article 134, UCMJ, for being drunk and disorderly, which consisted of reduction in grade to airman (E-2), a forfeiture of $100.00 pay per month for 2 months, and ordered to undergo 30 days correctional custody.  The reduction to airman being suspended until 16 May 1987, at which time unless the suspension is sooner vacated will be remitted without further action.  

On 24 Dec 1987, the applicant received NJP in violation of Article 134, UCMJ, for disorderly conduct, which consisted of reduction to the grade of E-2, restricted to the limits of the Air Base for 14 days.  His new date of rank (DOR) as E-1 being 31 Dec 1987.   

On 25 Jan 1988, the applicant received NJP in violation of Article 134, UCMJ, for disorderly under circumstances as to bring discredit upon the armed forces, which consisted of reduction to the grade of E-1, restricted to the Air Base for 60 days.  The reduction to E-1 being suspended until 16 Aug 1988, at which time unless the suspension is sooner vacated will be remitted without further action.

On 7 Jun 1988, a court-martial convened and adjudged the applicant, finding him guilty of unlawfully biting a staff sergeant on the back, sentencing him to a Bad Conduct Discharge, reduction in grade to E-1, and 3 months confinement.  The sentence was approved, and except for the part of the sentence extending to Bad Conduct Discharge, will be executed.  

Subsequently, Special Court-Martial Order No. 5 (date illegible), finally affirmed the 7 Jun 1988 sentencing, stating the Bad Conduct Discharge will be executed.  

On 31 Mar 1989, the applicant was rendered a Bad Conduct Discharge, having served three years, eight months, and fourteen days of active service.

For more information, see the excerpts of the Applicable Authority at Exhibit B, the advisories at Exhibits D and E.

POST-SERVICE INFORMATION

On 29 Oct 20, the Board sent the applicant a request for post-service information and advised the applicant he was required to provide a Federal Bureau of Investigation (FBI) Identity History Summary Check, which would indicate whether or not he had an arrest record.  In the alternative, the applicant could provide proof of employment in which background checks are part of the hiring process (Exhibit C).  Through counsel, the applicant replied on 26 Jan 21 and provided an FBI report.  According to the report, the applicant had over 20 arrests since discharge between 1989 and 2016.  Charges were predominantly associated with possession of cocaine, dangerous drugs, as well as distribution/delivery of narcotics.  Convictions over that time varied from several months of probation, months and years of confinement.  Counsel also provided a copy of a Bachelor of Social Work presented to the applicant 9 May 20, by Southern University at New Orleans.

The applicant’s complete response is at Exhibit G.

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 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. 

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.

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

SAF/AFRBA Psychological Advisor recommends partially granting the application.  The applicant contends he had adjustment issues in the military, struggled with depression and used alcohol to cope with his symptoms of depression.  He believes his misconduct and alcohol abuse were the result of undiagnosed and untreated bipolar disorder.  In addition, he contends he had ineffective counsel at his court-martial hearing and did not raise the defense of insanity or self-defense as he was intoxicated at the time of the misconduct.  The Psychological Advisor cannot render an opinion on the last contention, recommending obtaining a legal advisory to address that contention.  She will address the contended mental health condition.  

Although there is no objective evidence to support the applicant’s claim that his mental health condition caused his misconduct, liberal consideration guidance (Kurta Memo) allows for personal testimonies to be considered as evidence.  The applicant contends he coped with his depression caused by being in a new country for the first time, being away from family, missing his daughter’s birth, and being denied occupational advancement opportunities, etc. with alcohol.  His explanation and coping mechanism are very possible as it is not uncommon for people to cope with depression with alcohol.  Giving the applicant the benefit of the doubt despite the lack of objective evidence, the Psychological Advisor opines that the applicant’s personal statement was sufficient enough to provide a compelling narrative that it is possible his mental health condition mitigated his misconduct leading to his discharge from service.  Therefore, she finds sufficient evidence to support upgrading the applicant’s discharge to at least an Under Honorable Conditions (General), and change the narrative reason for discharge to “Secretarial Authority,” based on liberal consideration.   

The complete advisory opinion is at Exhibit D.

AF/JAJI recommends denying the application in regards to upgrading the applicant’s discharge due to ineffective assistance of counsel during the applicant’s special court-martial hearing.  The contention the applicant’s defense counsel failed to raise the defenses of insanity, self-defense, and voluntary intoxication in the course of the military judge’s questioning during his court-martial hearing is a misunderstanding of the purpose of the military judge’s providence inquiry.  During a guilty plea inquiry, the military judge is charged with determining whether there is adequate basis in law and fact to support the plea before accepting it.  The military judge’s questions were intended to prevent the present situation in which an accused member pleads guilty, then later claims otherwise.  The facts appear to be what was proffered by the applicant during his guilty plea – that he was drunk and unruly in the back of the police vehicle, and when the officer attempted to restrain him, he bit the officer in the back.  During the matter in question, the defense counsel and the applicant were aware of all relevant facts, and as a matter of legal strategy chose to not pursue the now-claimed defenses.  

Since case law considers it to be “a military judge’s decision to accept a guilty plea”, an appellate court would have reviewed whether the military judge “abused discretion” and whether the record as a whole shows “a substantial basis in law and fact for questioning the guilty plea,” citing United States v. Griggs, 61 N,H, 460, 462 (C.A.A.F. 2007).  No such argument was raised during the appellate process of the applicant’s case.  The applicant received the due process to which he was entitled, including assistance by counsel, the choice to plead guilty or not guilty, and appellate review.      

The complete advisory opinion is at Exhibit E.

APPLICANT’S REVIEW OF AIR FORCE EVALUATION

The Board sent a copy of the advisory opinion to the applicant on 3 Dec 2020 for comment (Exhibit F), but has received no response.

FINDINGS AND CONCLUSION

1.  The application was not timely filed, but it is in the interest of justice to excuse the delay.

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.  While the Board notes the comments of SAF/AFRBA Psychological Advisor in favor of partially granting relief, the Board believes a preponderance of the evidence fails to substantiate the applicant’s contentions.  Counsel argues the applicant’s BCD is an injustice, pursuant the guidelines articulated in the Kurta Memo and Wilkie Memo, citing he was suffering from significant untreated mental health and substance abuse issue.  The Board, after giving careful liberal consideration to the available evidence; determined the alleged untreated mental health and substance abuse issues, do not excuse or mitigate the applicant’s BCD.  Specifically, the Board notes there was no evidence the applicant had any unfitting mental health conditions (alleged depression), and his alcohol issues he blamed for three out of his four Article 15s, was a condition by itself, considered unsuiting for military service.  Regarding the argument, the applicant received ineffective assistance of counsel during the special court martial hearing for failure to raise defenses of self-defense, insanity, and voluntary intoxication; the Board agrees with AF/JAJI’s analysis that the facts of the case, nor should the military judge’s questions during the providence inquiry reasonably have triggered defenses of insanity, self-defense, or voluntary intoxication.  The applicant received the due process to which he was entitled, including effective assistance by counsel. 

In the interest of justice, the Board considered upgrading the discharge based on clemency; however, given the evidence presented and the abundant arrest record with the last arrest being in 2015, the Board finds no basis to do so.  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-2020-01425 in Executive Session on 12 Oct 21:

, 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 31 Jan 2020.
Exhibit B:	Documentary evidence, excerpts from applicable authority.
Exhibit C:	Clemency letter w/atchs, SAF/MRBC to applicant, dated 29 Oct 2020.
Exhibit D:	Advisory opinion, SAF/AFRBA Psychological Advisor, dated 2 Nov 2020.
Exhibit E:	Advisory opinion, AF/JAJI, dated 24 Nov 2020.
Exhibit F:	Letter, SAF/MRBC to applicant, dated 3 Dec 2020.
Exhibit G:	Post-Service Information/FBI Report, dated 21 Dec 20.

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.