RECORD OF PROCEEDINGS

IN THE MATTER OF:	DOCKET NUMBER: BC-2020-02610

xxxxxxxxxxxxx	COUNSEL: NONE

	HEARING REQUESTED: YES

APPLICANT’S REQUEST

Her Bad Conduct Discharge (BCD) be upgraded to a medical or honorable discharge.

APPLICANT’S CONTENTIONS

She was undergoing a Medical Evaluation Board (MEB) when she was court martialed for drug use.  She was found guilty by association because of the friends she associated with.  She was coerced and did nothing wrong, she only had mental health issues which were not considered during her trial.  Her MEB was almost complete and just needed to be signed but was suspended due to her court martial.

The applicant’s complete submission is at Exhibit A.

STATEMENT OF FACTS

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

On 23 Jul 10, the Department of Veterans Affairs (DVA) proposed a 50 percent disability rating for her unfitting medical condition of Bipolar.  The DVA also provided disability ratings for several other service-connected disabilities with a combined rating of 60 percent.  

The AF Form 356, Findings and Recommended Disposition of USAF Physical Evaluation Board, dated 4 Aug 10, found the applicant was unfit due to her medical condition of Bipolar Disorder (Category II condition) and recommended discharge.  Her Cluster B Personality Disorder Traits  was listed as a Category III condition (conditions that are not separately unfitting and not compensable or ratable).  The PEB noted that her Category II condition existed prior to service (EPTS) and was not permanently aggravated through military service.

The AF Form 1359, Report of Result of Trail, dated 31 Aug 10, found the applicant pled guilty to wrongful use of a controlled substance (Article 112a).  The applicant was sentenced to forfeiture of pay ($1000 per pay period for 4 months) and confinement for 4 months with a Bad Conduct Discharge.

A memorandum from HQ AFPC/DPSDD, dated 3 Jun 11, states the applicant’s MEB was suspended. 

The DD Form 214, Certificate of Release or Discharge from Active Duty, issued 23 Nov 11, indicates the applicant received a Bad Conduct Discharge, with a narrative reason for separation of “Court Martial.”  

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

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.

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.

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.

On 21 Dec 20, the Board staff provided the applicant a copy of the consolidated clarifying guidance (Exhibit D).

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.  There is insufficient evidence to support the applicant’s request for a medical retirement.  Her mental health condition of Bipolar Disorder was found to be unfitting but also was EPTS and not aggravated by military service.  AFPC/DPSDD’s memorandum dated 3 Jun 11 states in part that per AFI 36-3212, Physical Evaluation for Retention, Retirement and Separation paragraph 1.3.1, the applicant is ineligible to continue a disability evaluation due to the court-martial findings.  Her special court martial conviction and sentencing supersedes the outcome of her MEB and was the reason she did not receive a medical discharge.  Liberal consideration should not be applied to the applicant’s request due to her mental health condition being identified as EPTS and not aggravated by military service and would be exempt by the policy.  However, the Board may elect to apply liberal consideration to the applicant’s request should they find her contention compelling.  It is possible her mental health condition caused her misconduct/behaviors in service, but there was no information or evidence in the records or provided by the applicant to suggest this nexus.

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 6 Jan 21 for comment (Exhibit D), 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 the victim of an error or injustice.  While the Board notes the recommendation of the AFBMCR Psychological Advisor against correcting the record, the Board finds a preponderance of the evidence substantiates the applicant’s contentions.  In this respect, we note per AFI 36-3212, paragraph 1.3.1.1. Question of Mental Capacity or Responsibility states “When a medical board questions a member's mental capacity or responsibility, the commander exercising CM jurisdiction decides whether to proceed with CM or dismiss, withdraw, or hold the charges in abeyance until completion of the disability evaluation.”  The Board opines that although the applicant’s mental health condition was considered EPTS, it was aggravated by service, therefore under liberal consideration; the Board believes the applicant should be medically retired with a 50 percent disability rating due to Bipolar Disorder.  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 the following:

a.	On 4 August 2010, she was found unfit to perform the duties of her office, rank, grade, or rating by reason of physical disability, incurred while she was entitled to receive basic pay; the diagnosis in her case was Bipolar Disorder, that her condition was under VASRD code 9432; with a disability rating of 50 percent; the degree of impairment was permanent; the disability was not due to intentional misconduct or willful neglect; the disability was not incurred during a period of unauthorized absence; and the disability was not as a direct result of armed conflict or caused by an instrumentality of war and was not combat-related. 

b.	On 23 November 2011, she was discharged from active duty and on 24 November 2011, she was permanently retired with a compensable percentage for physical disability of 50 percent.

c.	Her election of the Survivor Benefit Plan option will be corrected in accordance with her expressed preferences and/or as otherwise provided for by law or the Code of Federal Regulations.  

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-2020-02610 in Executive Session on 17 Feb 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 12 Jun 20.
Exhibit B:	Documentary evidence, including relevant excerpts from official records.
Exhibit C:	Advisory opinion, AFBCMR Psychological Advisor, dated 17 Dec 20.
Exhibit D:	Letter, SAF/MRBC to applicant (Clarifying Guidance), dated 21 Dec 20.
Exhibit E:	Notification of advisory, SAF/MRBC to applicant, dated 6 Jan 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.