RECORD OF PROCEEDINGS

IN THE MATTER OF:	DOCKET NUMBER: BC-2020-01953

XXXXXXXXXX	COUNSEL: XXXXXXXXXX
	
	HEARING REQUESTED: NO

APPLICANT’S REQUEST

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

APPLICANT’S CONTENTIONS

His physical and emotional abusive childhood and a history of mental health issues were a direct contributor to his misconduct that led to his discharge.  Since his discharge and completing his prison sentence, his history of good personal conduct warrants a discharge upgrade.

The applicant’s complete submission is at Exhibit A.

STATEMENT OF FACTS

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

According to General Court-Martial Order XXXXXXX, the applicant was sentenced to a dishonorable discharge, 16 months of confinement, forfeiture of all pay and allowances, reduction to E-1, and a Dishonorable Discharge.

According to the DD Form 214, Certificate of Release or Discharge from Active Duty, on 12 Aug 16, the applicant was dishonorably discharged with a narrative reason “Court Martial (OTHER)” with the corresponding separation code of GKL and reentry code 2M.  He was credited with 2 years, 3 months and 17 days of active service.  

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

POST-SERVICE INFORMATION

On 13 Jul 20, the Board sent the applicant a request for post-service information, including a standard criminal history report from the Federal Bureau of Investigation (FBI), which the applicant provided on 21 Jul 20 (Exhibit C).  According to the report, the applicant has had no arrests since discharge.

APPLICABLE AUTHORITY

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 trial 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

AFBCMR Psychological Advisor recommends denying the application and finds insufficient evidence to support the applicant’s request for the desired change to his records.  The applicant reported he was hospitalized at the age of 16 for anger issues and depression, which he neglected to report this significant history on his Military Entrance Processing Examination on 27 Dec 12. He did report this history to his military providers and they assessed his prior service conditions have been a pervasive problem for him that had carried over to his time in service.  These conditions are considered to be existed prior to service (EPTS).  The applicant had well-documented mental health issues and treatment during service, but there was no evidence his EPTS mental health conditions were aggravated by his military service.  In fact, his service treatment records reported the applicant’s mental health issues began and decompensated because of his OSI investigation deriving from his misconduct.  His reaction was not uncommon for individuals in similar situations.  Additionally, the significant situational stressors of his legal issues most likely caused his experienced psychosis leading to his second hospitalization as being under extreme stress may induce psychosis. The applicant reported he coped with his mental health issues with gambling and pornography, but there were no records he had any addiction issues that may cause or explain his behaviors leading to his court marital conviction and discharge from service.  An Enlisted Performance Report for the rating period XXXXXXX states the “Member plead guilty and was convicted under the UCMJ; Article 134 possession of child pornography.”  The applicant submitted a character reference letter by one of his military providers from service attesting the applicant was remorseful over his actions and is not an individual that would be classified as a criminal or pedophilic.  The provider stated his behaviors and errors were due to a lapse in good judgment, which was liken to many other young Americans.  This psychological advisor acknowledges the positive reference letter but opines the illicit and serious nature of his offense and behaviors could not be overlooked.  Although he lacked good judgment, there was no evidence he had any intellectual or cognitive deficiencies in service impairing his judgment, indicating he had the capacity to know the difference between right and wrong and to adhere to the right and refrain from the wrong.  Liberal consideration should not be applied to the applicant’s petition as his mental health conditions were found to be EPTS and not aggravated by military service and notwithstanding, is exempt from the policy.  The Board may however, elect to apply liberal consideration to the applicant’s petition should they find his reasoning compelling for an upgrade consideration.  The applicant has not met the burden of proof to support his request.

The complete advisory opinion is at Exhibit D.

ADDITIONAL AIR FORCE EVALUATION

AF/JA recommends denying the application and finds the record contains insufficient evidence or allegation of error or injustice tending to undermine the sentence from the applicant’s general court-martial.  A brief overview of the applicable rule is that in accordance with 10 U.S.C. 1552(f), the BCMR has no authority to overturn the court-martial conviction, but may adjust the sentence on the basis of clemency.  In the present case, the approved sentence was within the permissible range for the offenses of which the applicant was convicted.  Furthermore, the applicant has not submitted any new evidence or information that casts doubt on the outcome of his trial.  Therefore, we find no basis to set aside the dishonorable discharge that was adjudged at the applicant’s court-martial.  As this is a legal advisory, we offer no analysis on the severity of the stated mental health conditions or their connection to the discharge.  However, we do advise the Board to consider the following guidance from the memorandum: “15. Liberal consideration is not required for cases involving pre-existing conditions which are determined not to have been aggravated by military service,” and “19. Premeditated misconduct is not generally excused by mental health conditions…Review Boards will exercise caution in assessing the causal relationship between asserted conditions or experiences and premeditated misconduct.”

The complete advisory opinion is at Exhibit E.

APPLICANT’S REVIEW OF AIR FORCE EVALUATION

The Board sent a copy of the advisory opinions to the applicant on 4 Feb 21 and 3 Mar 21 for comment (Exhibit F).  The applicant advised the Board, via e-mail on 9 Mar 21, that he would not be responding to the advisories (Exhibit G).

FINDINGS AND CONCLUSION

1.  The application is timely.  Given the requirement for passage of time, all clemency requests are technically untimely.  However, it would be illogical to deny a clemency application as untimely, since the Board typically looks for over 15 years of good conduct post-service.  Therefore, the Board declines to assert the three-year limitations 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 not the victim of an error or injustice.  It appears the discharge was consistent with the substantive requirements of the discharge regulation and was within the commander’s discretion.  Nor was the discharge unduly harsh or disproportionate to the offenses committed.  In the interest of justice, the Board considered upgrading the discharge based on clemency; however, given the evidence presented, the Board finds no basis to do so.  The Board recognizes the letter of recommendations and post-service record of the applicant, however, the seriousness of the charges cannot be overlooked.  Lastly, the Board did not consider liberal consideration in their decision as the applicant’s condition is considered pre-existing and is exempt under the policy.  Therefore, the Board recommends against correcting the applicant’s record at this time.

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-2020-01953 in Executive Session on 17 Mar 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 16 Mar 20.
Exhibit B:	Documentary evidence, including relevant excerpts from official records.
Exhibit C: Applicant FBI Report, dated 17 Jul 20.
Exhibit D:	Advisory opinion, AFBCMR Psychological Advisor, dated 13 Jan 21.
Exhibit E:	Advisory opinion, AF/JA, dated 3 Feb 21. 
Exhibit F:  Notification of advisories, SAF/MRBC to applicant, dated 4 Feb 21 and 
                  9 Mar 21.
Exhibit G:	Applicant’s e-mail response, dated 9 Mar 21.

Taken together with all Exhibits, this document constitutes the true and complete Record of Proceedings pertaining to Docket Number BC-2020-01953, as required by AFI 36-2603, paragraph 4.11.9.