RECORD OF PROCEEDINGS

IN THE MATTER OF:	DOCKET NUMBER: BC-2020-02386

XXXXXXXXXXX	COUNSEL: XXXXXXXXXX

	HEARING REQUESTED: NO

APPLICANT’S REQUEST

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

APPLICANT’S CONTENTIONS

He meets the criteria necessary to merit a change in his discharge characterization through equitable relief and in the interest of justice based on the Wilke Memo.  He served his country honorably in Vietnam.  In Jul 71, he was falsely accused of marijuana possession and arrested.  Due to his confinement, he was charged with being Absent Without Leave (AWOL).  Because of his time in Vietnam, he suffered from depression and reoccurring nightmares.  In Jan 72, he left to deal with his depression and returned of his own accord but was again arrested for being AWOL.  Besides these two incidents, he had exemplary service, many commendations, medals, and has an amazing reputation in his community as an outstanding citizen.  By meeting the factors set forth in the Wilke Memo, the applicant has shown that he deserves and is entitled to a discharge upgrade from ‘Under Honorable Conditions – General’ to ‘Honorable.’  

In support of his request for clemency, the applicant provides a brief, a personal statement, numerous character statements, copies of his military record, and other documents to support his appeal.

The applicant’s complete submission is at Exhibit A.

STATEMENT OF FACTS

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

On 13 Jan 69, according to DD Form 4, Enlistment Contract - Armed Forces of the United States, provided by the applicant, he enlisted in the Air Force for a period of 4 years.

On 9 Jul 71, according to AF Form 1226, Record of Court-Martial Convictions and Time Lost, provided by the applicant, an entry was made indicating the applicant was arrested on 3 Jul 71 for possession of marijuana and returned to military confinement on 8 Jul 71.  He had six days of lost time.

On 14 Jan 72, according to AF Form 1226, an entry was made indicating the applicant was AWOL from 5-13 Jan 72 for a period of nine days. 

On 30 May 72, according to DD Form 214, Armed Forces of the United States Report of Transfer or Discharge, provided by the applicant, he was discharged with a general (under honorable conditions) discharge, under the provisions of AFM 39-10, Enlisted Personnel Discharge - Expiration of Enlistment or Required Service and General Provisions, chapter 3, section B, paragraph 3-8Q, for failure to meet minimum requirements for retention in the Air Force.  He was credited with 3 years, 4 months, and 3 days of active service and 1 year of Foreign Service.  During his service, he was awarded the National Defense Service Medal, the Vietnam Service Medal, and the Republic of Vietnam Campaign Medal.  

For more information, see the submission from the applicant at Exhibit A and the advisory at Exhibit C.

POST-SERVICE INFORMATION

On 9 Feb 21, the Board sent the applicant a standard request for post-service information.  This letter informed the applicant that a Federal Bureau of Investigation (FBI) background check, available for under $20 from the FBI public website, would assist the Board in evaluating his case.  As of this date, no response has been received by this office.  The Board staff also provided the applicant a copy of the consolidated clarifying guidance below (Exhibit B).

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 Post Traumatic Stress Disorder (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.

Currently, service members diagnosed with mental health conditions receive heightened screening to ensure the causal relationship of possible symptoms and discharge basis is fully considered, and characterization of service is appropriate.  Veterans discharged under prior procedures, or before verifiable diagnosis, may not have suffered an error because the separation authority was unaware of their condition or experience at the time of discharge.  However, when compared to similarly situated individuals under current standards, they may be the victim of injustice because commanders fully informed of such conditions and causal relationships today may opt for a less prejudicial discharge to ensure the veteran retains certain benefits, such as medical care.

On 25 Jul 18, the Under Secretary of Defense issued supplemental guidance (Wilke Memo) 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. 

According to AFI 36-3208, Administrative Separation of Airmen, the applicable 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.

AIR FORCE EVALUATION

The AFBCMR Psychological Advisor finds insufficient evidence to support the applicant’s request for an upgrade of his discharge.  The Board may elect to apply liberal consideration to the applicant’s request due to the contention of a mental health condition.  Although his mental health condition may excuse or mitigate some of his misconduct, it does not outweigh his original discharge.  This is because his other misconduct is serious and could not be explained, caused, or excused by his mental health condition or experience.  The applicant was diagnosed with PTSD caused by his time in Vietnam several years post service.  Based on his personal testimony and records from the Department of Veterans Affairs, his mental health condition appeared to have excused or mitigated his second AWOL/misconduct but not all of his misconduct.  There is no evidence his mental health condition excused or mitigated his other serious misconduct of a civil conviction of possession of marijuana and AWOL for confinement.  

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 16 Feb 21 for comment (Exhibit D), but has received no response.  

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.  The Board concurs with the rationale and recommendation of the AFBCMR Psychological Advisor and finds a preponderance of the evidence does not substantiate the applicant’s contentions.  The Board applied Office of the Secretary of Defense standards of liberal consideration and did not find any evidence of error or injustice.  In the interest of justice, the Board considered upgrading the discharge based on clemency; however, given the evidence presented, and in the absence of criminal history provided by the applicant, the Board finds no basis to do so.  Therefore, the Board recommends against correcting the applicant’s record.  

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-2020-02386 in Executive Session on 25 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 Apr 20.
Exhibit B:	Clarifying Guidance, SAF/MRBC to applicant, dated 9 Feb 21.
Exhibit C:	Advisory opinion, AFBCMR Mental Health, dated 12 Feb 21.
Exhibit D:	Notification of advisory, SAF/MRBC to applicant, dated 16 Feb 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.