RECORD OF PROCEEDINGS

IN THE MATTER OF:	DOCKET NUMBER: BC-2020-02727

xxxxxxxxxxxxx	COUNSEL: NONE

	HEARING REQUESTED: NO

APPLICANT’S REQUEST

Her “Uncharacterized” Entry Level Separation (ELS) be upgraded to an honorable discharge and her Narrative Reason for Separation of “Mental Disorder” be changed.

APPLICANT’S CONTENTIONS

It has been over twenty years since her diagnosis.  Since then, she has completed therapy and her undergraduate degree.  She is currently working towards another degree.  Her continued efforts towards self-development warrants an upgrade to her 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 24 Sep 92, the applicant’s commander recommended the applicant be discharged from the Air Force, under the provisions of AFR 39-10, Administrative Separation of Airmen, section B, paragraph 5-11i, for a condition that interferes with military service, mental disorder.  On this same date, the discharge action was found legally sufficient, and the discharge authority approved the recommendation of an administrative, ELS on 25 Sep 92.

On 28 Sep 92, the applicant received an “uncharacterized” ELS after serving 25 days of active duty.  She was discharged, with a narrative reason for separation of “Conditions that interfere with military service-not disability-mental disorders.”

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

The applicant provided a standard criminal history report from the Federal Bureau of Investigation (FBI) and post-service information with her original application (Exhibit A).  According to the report, the applicant has had no arrests since discharge.
 
APPLICABLE AUTHORITY/GUIDANCE

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.

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?

On 25 Jul 18, the Under Secretary of Defense issued supplemental guidance 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. 
On 19 Feb 21, the Board staff provided the applicant a copy of the liberal consideration guidance (Exhibit C).

According to AFI 36-3208, Administrative Separation of Airmen, incorporating changes through 8 Jun 17, 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.  

Entry Level Separation.  Airmen are in entry level status during the first 180 days of continuous active military service or the first 180 days of continuous active military service after a break of more than 92 days of active service.  Determine the member's status by the date of notification; thus, if the member is in entry level status when initiating the separation action, describe it as an entry level separation unless: 

•	A service characterization of under other than honorable conditions is authorized under the reason for discharge and is warranted by the circumstances of the case; or 

•	The Secretary of the Air Force determines, on a case-by-case basis, that characterization as honorable is clearly warranted by unusual circumstances of personal conduct and performance of military duty.  

AIR FORCE EVALUATION

AFPC/DP2SSR recommends denying the applicant’s request to change the character of service from uncharacterized to honorable.  Airmen are given Entry-level separation/Uncharacterized service characterization when separation is initiated in the first 180 days continuous active service.  The Department of Defense (DoD) determined if a member served less than 180 days continuous active service, it would be unfair to the member and the service to characterize their limited service.  Based on review of the master of personnel records and the applicant’s request, there is no error or injustice with the discharge processing.

The complete advisory opinion is at Exhibit D.

The AFBCMR Psychological Advisor recommends denying the applicant’s request for a discharge upgrade finding no evidence of an error or injustice.  The psychological advisor has reviewed all available records and recognizes her efforts for self-improvement, but regrettably finds no error with her discharge from service.  The applicant clearly had a mental health disorder in service identified as Bulimia Nervosa that was considered to be existing prior to service (EPTS) and unsuiting for continued military service.  She also failed to report this significant mental health history on her Military Entrance Processing Station (MEPS) dated on 20 May 92 and could be considered fraudulent entry.  Her mental health condition caused her to experience fatigue, poor insight, anxiety and depression that had interfered with her ability to continue with military training; she was appropriately recommended for ELS discharge as a result.  The applicant’s request for an upgrade to Honorable could not be supported because she served less than 180 days of continuous active military service; she served a total of 25 days.  This brief period of service was characterized as ELS and uncharacterized service in accordance to AFR 39-10 in effect at the time discharge and consistent to present regulation of AFI 36-3208, Administrative Separation of Airmen.  In summary, there were no errors identified with her mental health disorder diagnosis, uncharacterized service characterization and subsequent administrative discharge from service.  The Board may choose to apply liberal consideration to the applicant’s request should they find her contention compelling; however, her mental health disorder of Bulimia Nervosa had interfered with her ability to continue with military training and was the cause and reason for her ELS discharge. This unsuiting condition does not excuse or mitigate her discharge.

The complete advisory opinion is at Exhibit E.

APPLICANT’S REVIEW OF AIR FORCE EVALUATION

The Board sent a copy of the advisory opinion to the applicant on 24 May 21 for comment (Exhibit F), 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, but that partial relief is appropriate based on clemency.  While the Board finds no error in the original discharge process, the Board recommends partial relief pertaining to the narrative reason for separation and separation code based on liberal consideration due to the applicant’s history of mental health treatment.  Specifically, although there is no evidence the applicant was diagnosed with Bulimia Nervosa while in service, there is evidence of psychological distress while in service.  However, for the remainder of the applicant’s request, the Board finds no basis to recommend granting that portion of the applicant’s request.  Therefore, the Board recommends correcting the applicant’s record as indicated below.  

RECOMMENDATION

The pertinent military records of the Department of the Air Force relating to the APPLICANT be corrected to show that her DD Form 214, Certificate of Release or Discharge from Active Duty, Block 28, Narrative Reason for Separation be changed to “Secretarial Authority,” and a separation code of “JFF.” 

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-2020-02727 in Executive Session on 28 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 24 Jun 20.
Exhibit B:	Documentary evidence, including relevant excerpts from official records.
Exhibit C: Notification to Applicant, SAF MRBC (Clarifying Guidance), dated 19 Feb 21.
Exhibit D:	Advisory opinion, AFPC/DP2SSR, dated 21 Apr 21.
Exhibit E: Advisory opinion, AFBCMR Mental Health, dated 29 Apr 21.
Exhibit F:	Notification of advisories, SAF/MRBC to applicant, dated 24 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.