RECORD OF PROCEEDINGS

IN THE MATTER OF:	DOCKET NUMBER: BC-2020-02286

	COUNSEL: NONE
	
	HEARING REQUESTED: NO

APPLICANT’S REQUEST

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

APPLICANT’S CONTENTIONS

His undiagnosed traumatic brain injury (TBI), suffered while conducting airborne operations in the Army Reserve and prior to serving on active duty in the Air Force, mitigated his behavior that led to his general discharge.  He volunteered for the most difficult training in the Air Force and believes his undiagnosed TBI may have had an effect on his behavior.  After his discharge, he went on to serve honorably for 9 years in the Air National Guard and for more than 17 years in sensitive positions with the U.S. Government, and completed his bachelor’s degree.  Medical research indicates that TBI causes behavior that is inconsistent with a persons’ normal behavior and believes these factors contributed to the events that led to his General discharge.

The applicant’s complete submission is at Exhibit A.

STATEMENT OF FACTS

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

On 3 Aug 90, the applicant’s commander recommended the applicant be discharged from the Air Force, under the provisions of AFR 39-10, paragraph 5-46 for misconduct.  The specific reasons for the action were as follows:

a. On 11 Jun 90, he was derelict in the performance of his duties in that he willfully failed to return to the dormitory in time for curfew.  For this offense, he was issued a record of individual counseling (RIC) and an Article 15.

	b. On 2 Mar 90, he was derelict in the performance of his duties in that he exhibited a negative attitude and lack of motivation in training.  For this offense, he was issued a RIC.

c. From 10 Feb 90 to 8 Mar 90, he was derelict in the performance of his duties in that he failed to do his assigned details and exhibited a bad attitude and poor motivation in training.  For these offenses, he was issued a RIC.

On 9 Aug 90, the discharge action was found legally sufficient, and the discharge authority approved the recommendation on 14 Aug 90.

On 15 Aug 90, the applicant received an Under Honorable Conditions (General) discharge for Misconduct—Pattern Minor Disciplinary Infractions and credited with 11 months and 5 days of active service.

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

POST-SERVICE INFORMATION

On 10 Sep 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); however, he has not replied.

APPLICABLE AUTHORITIES/GUIDANCE

1. 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.

2. The Department of Defense (DoD) and the Department of Veterans Affairs (DVA) disability evaluation systems operate under two separate laws.  Under Title 10, United States Code, Physical Evaluation Boards must determine if a member's condition renders them unfit for continued military service relating to their office, grade, rank or rating.  The fact that a person may have a medical condition does not mean the condition is unfitting for continued military service.  To be unfitting, the condition must be such that it alone precludes the member from fulfilling their military duties.  If the board renders a finding of unfit, the law provides appropriate compensation due to the premature termination of their career.  Further, it must be noted the AF disability boards must rate disabilities based on the member's condition at the time of evaluation; in essence a snapshot of their condition at that time.  It is the charge of the DVA to pick up where the AF must, by law, leave off.  Under Title 38, the DVA may rate any service-connected condition based upon future employability or reevaluate based on changes in the severity of a condition.  This often results in different ratings by the two agencies.

3. On 3 Sep 14, the Secretary of Defense issued a memorandum providing guidance to military correction boards regarding liberal consideration for Vietnam veterans claiming Post Traumatic Stress Disorder 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, 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 liberal consideration guidance memoranda can be found at Exhibit C.

AIR FORCE EVALUATIONS

The BCMR Medical Advisor opines there is sufficient evidence for the Board to liberally consider granting the applicant’s petition; based in large measure upon his post-service conduct, behavior, and accomplishments.  

The applicant has not supplied medical documentation to depict any objective evidence supportive of his contention.  However, the memo and email from former members familiar with the applicant’s duties and the alleged incident should be taken into consideration as valid.  A more detailed description of the event from the applicant or bystander, e.g., whether there was loss of consciousness, and a discussion of any symptoms experienced thereafter, other than misconduct, would be more supportive.  The fact that the applicant was “returned to duty the next day,” presumably with the ability to function, and without dates of any infractions or medical follow-up, makes it nearly impossible, without speculation or conjecture, to validate an association [or temporal cause and effect] between an un-diagnosed TBI and any subsequent “pattern of minor misconduct.”  Nevertheless, the articles supplied by the applicant support such a possibility.

The complete advisory opinion is at Exhibit C.

The BCMR Psychological Advisor regrettably finds insufficient evidence to support the applicant’s request for upgrade to an Honorable discharge.  The Board may consider applying clemency to the applicant’s request due to his post Air Force achievements and dedicated service as an Army service member and civil servant.

The psychological advisor acknowledges the research article the applicant submitted as evidence of his personality and behavioral changes subsequent to a TBI and is very familiar with the article and study.  However, the article also cited the DSM-5 diagnosis criteria of Personality Change Due to a General Medical Condition that included diagnostic features of affective instability, poor impulse control, outbursts or rage that are disproportional to the stressor, suspiciousness or paranoia, and apathy.  The applicant’s records showed he displayed one of these features of apathy but there was no evidence in his records he experienced or displayed the other pertinent features, which are more classic features and symptoms commonly seen in individuals with TBIs.  Displaying or experiencing one feature/symptom is not sufficient enough to determine his behaviors in service were attributed to his prior service injury or undiagnosed TBI. The applicant speculated his behaviors were caused by his undiagnosed TBI, but there was no objective evidence to support this assertion.  The applicant did not provide any medical records showing he was diagnosed with a TBI by a medical provider, any cognitive difficulties he may have had associated with the TBI, and no treatment for a TBI.

The complete advisory opinion is at Exhibit D.

APPLICANT’S REVIEW OF AIR FORCE EVALUATION

The Board sent copies of the Air Force evaluations to the applicant on 24 May 21 for comment (Exhibit F), and the applicant replied on 25 May 21.  In his response, the applicant again contended his TBI injury temporarily affected some of his decision-making.  He takes responsibility for his actions, but he believes the psychological and physical stress of the Air Force Combat Control/Pararescue training was one of the toughest in the military, and almost overwhelming.  He does not recall if psychological support was available but showing weakness mentally or physically was something you could not do if you wanted to become special operations.  The Department of Veterans Affairs (DVA) understands that many in the military ignored their mental and physical injuries and has service-connected him with 80 percent disability, primarily due to his status as a paratrooper.

The applicant’s complete response is at Exhibit E

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 the victim of an injustice.  While the Board finds no error in the original discharge process, the Board recommends relief based on clemency.  The Board notes both the Medical and Psychological Advisors find no evidence the applicant’s TBI mitigated his misconduct that led to his general discharge but notes the Board may consider clemency, and we agree.  The Board notes his post-service accomplishments, in particular his honorable service with the ANG, US Government positions and completion of his bachelor’s degree.  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 on 15 Aug 90, he was honorably discharged with a narrative reason for separation of “Secretarial Authority,” a separation program designator code of “JFF,” and a reentry code of “1J.”

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-2020-02286 in Executive Session on 14 Jul 21:

Panel Chair
Panel Member
Panel Member

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

Exhibit A:	Application, DD Form 149, w/atchs, dated 26 Feb 20.
Exhibit B:	Documentary evidence, including relevant excerpts from official records.
Exhibit C: Notification of Guidance, Liberal Consideration and Clemency, 10 Sep 20.
Exhibit D:	Advisory opinion, BCMR Medical Advisor, dated 3 Dec 20.
Exhibit E:	Advisory opinion, BCMR Psychological Advisor, dated 4 May 21.
Exhibit F:	Notification of advisory, SAF/MRBC to applicant, dated 24 May 21.
Exhibit G:	Applicant’s response, dated 25 May 21.

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.