RECORD OF PROCEEDINGS

IN THE MATTER OF:	DOCKET NUMBER: BC-2020-02380

	COUNSEL: YES

	HEARING REQUESTED: YES

APPLICANT’S REQUEST

1.  He be medically retired.

2.  In the alternative, upgrade his Under Honorable Conditions (General) discharge to Honorable and change his narrative reason for separation, separation code and reentry code to reflect medical or Secretarial Authority as the basis for separation.

3.  Any other relief that is equitable and just.

APPLICANT’S CONTENTIONS

He should have been processed for a Medical Evaluation Board (MEB) instead of separated for minor misconduct.  He was diagnosed with anxiety and depression while in service which prevented him from reasonably performing his duties.  He was referred to behavioral health and treated with medications but did not receive any other sort of therapy.  As a result of the lack of improvement in his condition, he became depressed and fell behind at work leading him to take medical records home with him and for that, and other minor misconduct, he was eventually separated from the Air Force.  Had he been referred to the MEB, he would have been permanently medically retired with at least a 30 percent disability rating under Veterans Affairs Schedule for Rating Disabilities (VASRD) code 9413 (anxiety disorder, to otherwise specified).

In the alternative, his discharge should be upgraded to Honorable and the narrative reason, separation code and reentry code be changed to reflect Secretarial Authority based on relief under the framework of the Hagel memorandum and Department of Defense’s guidance for behavioral health conditions.  Additionally, his overall service record post-discharge conduct are deserving of an honorable characterization of service. 

A letter from his doctor, dated 8 Apr 20, indicates treatment over the last year with current diagnosis of anxiety disorder, not otherwise specified.  Additionally, the doctor opined that the applicant developed panic disorder and major depression due to the stress of adjusting to his first duty station and that insufficient medical care (no psychotherapy) along with leadership’s punitive (rather than medical) response both aggravated and perpetuated his conditions to the present day.

The applicant’s complete submission is at Exhibit A.

STATEMENT OF FACTS

The applicant is a former Air Force airman (E-2).

On 26 May 09, the applicant entered the Regular Air Force.

On 27 Oct 10, the applicant’s commander recommended the applicant 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, chapter 5, paragraph 5.49 for minor disciplinary infractions. The specific reasons for the action were as follows:

a.	On 5 Apr 10, derelict in the performance of duties by willfully failing to refrain from wrongfully removing personnel medical records from the base medical center: received Nonjudicial punishment, reduction to the grade of airman, suspended until 14 Jan 11 and forfeiture $811 in pay.

b.	On 3 Aug 10, failed to report to a mandatory flight physical training formation; received letter of counseling.

c.	On 4 Oct 10, vacated the suspended reduction to the grade of airman for sexual harassing an airman and making racially discriminatory comments to an airman between 15 Jul 10 and 19 Aug 10.

On 27 Oct 10, the applicant acknowledged receipt of the discharge action and on 28 Oct 10, provided a response that he understood and took full responsibility of his actions.

On 17 Nov 10, the discharge action was found legally sufficient, and the discharge authority approved the recommendation on 19 Nov 10 with an Under Honorable Conditions (General) discharge for minor disciplinary infractions.

On 7 Dec 10, according to DD form 214, Certificate of Release or Discharge from Active Duty, the applicant received an Under Honorable Conditions (General) discharge, narrative reason of “misconduct (drug abuse)”, separation code “JKK” (misconduct, drug abuse) and reentry code “2B” (separated with a general or under other than honorable conditions discharge).

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

POST-SERVICE INFORMATION

On 26 Jan 21, the Board sent the applicant a request for post-service information, including a standard criminal history report from the Federal Bureau of Investigation (FBI) for review and comment within 30 days (Exhibit E).  As of this date, no response has been received by this office.

APPLICABLE AUTHORITIES

The military Disability Evaluation System (DES), established to maintain a fit and vital fighting force, can by law, under Title 10, United States Code (USC), only offer compensation for those service incurred diseases or injuries which specifically rendered a member unfit for continued service and were the cause for career termination; and, then only for the degree of impairment present at the time of separation and not based on future occurrences.  DoDI 1332.32, Physical Disability Evaluation, reads “A Service member shall be considered unfit when the evidence establishes that the member, due to physical disability, is unable to reasonably perform the duties of his or her office, grade, rank or rating.”

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.

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 guidance memoranda can be found at Exhibit E.

AIR FORCE EVALUATION

BCMR Psychological Advisor finds insufficient evidence to support the applicant’s requests for changes to his records.  The Department of Veterans Affairs (DVA) evaluator noted the applicant’s DD Form 214 reflected he was discharged for “Misconduct (Drug Abuse)” and stated the applicant was baffled by this as he was not discharged for drug abuse and did not abuse drugs.  The psychological advisor concurs with this information.  To remedy this error, recommend removing the description of “Drug Abuse” from his narrative reason for discharge on his DD Form 214.

The Board may elect to apply liberal consideration to the applicant’s request due to contended mental health conditions.  Although there is evidence the applicant received mental health disorder diagnoses and treatment during service, there is no evidence he had any potentially unfitting mental health condition necessitating a referral to the Medical Evaluation Board (MEB) for a medical discharge or retirement. Receiving a diagnosis or treatment in service does not automatically make the condition being considered unfitting.  His mental health condition never elevated to an unfitting condition.  There was no evidence he was ever placed on a duty limiting conditions profile for a mental health condition by any of his medical or mental health providers, he was never deemed not worldwide qualified due to a mental health condition, there were no reports from his chain of command of any observed or concerns for his mental health conditions that may interfere with his ability to perform his military duties, and the applicant made no mention of any mental health issues that may cause his misconduct or behaviors in any of his personal statements at the snapshot in time of service.

The complete advisory opinion is at Exhibit C.

APPLICANT’S REVIEW OF AIR FORCE EVALUATION

The Board sent a copy of the advisory opinion to the applicant on 13 Jan 21 for comment (Exhibit D), and the applicant replied on 2 Mar 21.  In his response, and through counsel, the applicant restates he was unfit for duty under AFI 36-3212, Physical Evaluation for Retention, Retirement and Separation, and should have been referred to a MEB then medically retired.  Although the advisory seems to reject the conclusions and medical opinion provided by his doctor, it is only the advisor’s opinion and it’s the Board’s decision to determine if the opinion and evidence submitted are persuasive.  The evidence he provided is more than sufficient to grant his requested relief. 

The applicant’s complete response is at Exhibit E.

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 the victim of an error or injustice.  The Board concurs with the rationale and recommendation of the BCMR Psychological Advisor and finds a preponderance of the evidence substantiates the applicant’s contentions in part.  Specifically, the narrative reason and separation code on the applicant’s DD Form 214 are erroneous and do not correspond to the reason for his discharge under AFI 36-3208, chapter 5, paragraph 5.49 “minor disciplinary infractions,” which is sufficient to justify granting the applicant’s request to correct the narrative reason for separation and separation code.  However, for the remainder of the applicant’s request, the evidence presented did not demonstrate an error or injustice, and the Board therefore finds no basis to recommend granting that portion of the applicant’s request.  The Board also notes the applicant’s response to the advisory opinion and finds it does not persuade our decision.  In the interest of justice, the Board considered upgrading the discharge based on clemency; however, given the evidence presented, and in the absence of post-service information, the Board finds no basis to do so.  Therefore, the Board recommends correcting the applicant’s records as indicated below.

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 pertinent military records of the Department of the Air Force relating to the APPLICANT be corrected to show his DD Form 214, Certificate of Release or Discharge from Active Duty, issued in conjunction with his 7 Dec 10 discharge, be declared void, and a new DD Form 214 be issued to reflect narrative reason, misconduct for minor disciplinary infractions and separation code, HKN.

However, regarding the remainder of the applicant’s request, the Board recommends informing the applicant the evidence did not demonstrate material error or injustice, and the application will only be reconsidered upon receipt of relevant evidence not already considered by the Board.

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-2020-02380 in Executive Session on 17 Feb and 5 Mar 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 21 Apr 20.
Exhibit B:	Documentary evidence, including relevant excerpts from official records.
Exhibit C:	Advisory opinion, BCMR Psychological Advisor, dated 8 Jan 21.
Exhibit D:	Notification of advisory, SAF/MRBC to applicant, dated 13 Jan 21.
Exhibit E:	Notification of Guidance, Liberal Consideration and Clemency, 26 Jan 21.
Exhibit F:	Applicant’s response, dated 2 Mar 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.