RECORD OF PROCEEDINGS

IN THE MATTER OF:	DOCKET NUMBER: BC-2020-02788

XXXXXXXXXXXXX	COUNSEL: XXXXXXXXXX
	
	HEARING REQUESTED: YES

APPLICANT’S REQUEST

1. Her Under Other Than Honorable Conditions (UOTHC) discharge be corrected to a military retirement under the Temporary Early Retirement Authority (TERA) program, or

2. Her UOTHC be corrected to a military disability retirement, or

3. In the alternative, her UOTHC discharge be corrected to an Honorable or Under Honorable Conditions (General) discharge under clemency.

4. Her narrative reason for separation be corrected from “Misconduct (serious offense)” to an appropriate, less derogatory narrative, such as “Secretarial Authority.”

5. Her reentry (RE) code be corrected to correspond with the appropriate changes.

APPLICANT’S CONTENTIONS

The applicant, through counsel, contends that her discharge was excessively harsh and the board punished her for the actions of her husband and failed to appropriately consider the length and overall record of her service and the impact her mental health had on her misconduct.

She served 18 years, 9 months and 4 days of honorable and committed service and an additional 9 months and 8 days honorably while confined, although this is lost time per statute.  She was only a few months short of reaching a full retirement, and rather than offering her a retirement pursuant to TERA, the Command pushed to punish her again.

Further, the Air Force failed to appropriately consider the severity of her mental health conditions throughout her career.  Despite treatment for her mental health conditions, she is severely impacted and spends most of her time balancing her conditions and taking care of her family, and is unable to do much within the community due to her panic disorder.

The support of others and the lack of any derogatory acts before, during, or after her trial is compelling evidence to support relief through clemency.

Because of her UOTHC discharge, the Department of Veteran’s Affairs (DVA) has denied compensation and benefits for her conditions.

She left her adopted son in the care of her husband when she took emergency leave to care for her dying mother.  Her husband was accused of abusing their son during this time and she was arrested upon her return from emergency leave.  She was convicted by court-martial of child endangerment through culpable neglect and sentenced to confinement, but not a punitive discharge.  Upon her release from confinement, she was the subject of an administrative separation board who spent much of their time reviewing evidence to the acts of her husband, her decision to relinquish parental rights for her son and the decision to remain with her husband after her trial.

The applicant’s complete submission is at Exhibit A.

STATEMENT OF FACTS

The applicant is a former Air Force senior airman (E-4).

On 6 Mar 13, according to AF Form 1359, Report of Result of Trial, a General Court Martial found the applicant guilty of violating Article 134, for endangering the welfare of a child under the age of 16 years by leaving him in the care of a person known to have caused previous bodily harm to the child and that such conduct constituted culpable negligence which resulted in harm to the child, which conduct was of a nature to bring discredit upon the Armed Forces.  The applicant was sentenced to a reduction in grade to senior airman (E-4) and confinement for 12 months.

On 6 Mar 13, according to Duty Status Change form, the applicant entered confinement.

On 23 May 13, 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, paragraph 5.52.3. for violating Article 134 where she was found guilty by a General Court-Martial.  The commander directed the applicant to undergo a medical examination.  Although not pertinent to the basis for discharge, the commander determined additional information was relevant to the discharge action.  The additional information is as follows:

a.	On 21 Aug 08 and 21 Sep 08, she failed to pay her debts and was issued a letter of counseling (LOC).

b.	On 21 Aug 09, she failed to pay her debts and was issued a LOC.

c.	On 18 Jan 11, she failed to meet fitness standards and was issued a LOC.

d.	On 25 Jan 11, she failed to attend a mandatory appointment and was issued a LOC.

e.	On 19 Apr 11, she failed to meet fitness standards.

f.	On 3 Aug 11, she failed to meet fitness standards and was issued a letter of reprimand (LOR), unfavorable information file (UIF) and placed on the control roster. 

On 29 May 13, according to DD form 2697, Report of Medical Assessment, the applicant underwent a medical examination and was not referred for further evaluation by the provider.

On 30 May 13, the applicant submitted a conditional waiver of her discharge board and on 22 Oct 13, she withdrew the request.

On 14 Dec 13, according to Duty Status Change form, the applicant was released from confinement.
On 29 Jan 14, the applicant submitted a second conditional waiver of her discharge board and on 31 Jan 14, she withdrew the request and exercised her right to an administrative discharge board hearing and for lengthy service probation (LSP) consideration.

On 5 Feb 14, according to a WG/JA memorandum, dated 27 Feb 14, the applicant presented her case before an administrative discharge board and the board determined there was a basis for discharge and recommended the applicant be involuntarily separated with an UOTHC service characterization without probation and rehabilitation.

On 27 Feb 14, the discharge action was found legally sufficient.

On 19 Jun 14, the Director of the Air Force Review Boards Agency, acting under the authority delegated by the Secretary of the Air Force, directed the applicant be separated with an UOTHC service characterization and denied LSP.

On 31 Oct 14, according to DD Form 214, Certificate of  Release or Discharge from Active Duty, the applicant received an UOHTC discharge for misconduct (serious offense) with RE code 2B and was credited with 19 years, 6 months and 11 days of active service.

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

POST-SERVICE INFORMATION

On 6 May 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), which the applicant provided on 14 May 21 (Exhibit M).  According to the report, the applicant has had no arrests since her discharge.

APPLICABLE AUTHORITIES

1. This Board is without authority to reverse, set aside, or otherwise expunge a court-martial conviction.  Rather, in accordance with Title 10, United States Code, Section 1552(f), actions by this Board are limited to corrections reflecting actions taken by the reviewing officials and action on the sentence of the court-martial for the purpose of clemency.

2. 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.

3. 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.”

4. 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 Secretary of Defense memoranda can be found at Exhibit C.

AIR FORCE EVALUATIONS

AFPC/DP2SSR recommends denying the applicant’s request to change her discharge characterization.  The applicant’s commander provided sufficient evidence to the base discharge authority to support both separation and the character of service.  Based on the lengthy service of the applicant, the case required higher-level review of the circumstances and the documentation.  The applicant’s case was submitted for coordination and reviewed by the Secretary of the Air Force Personnel Council (SAFPC), acting on behalf of the Secretary of the Air Force, which confirmed both the discharge and character of service.  Based on review of the applicant’s request and the master personnel record, there is no error or injustice with the discharge process.

The complete advisory opinion is at Exhibit D.

AFPC/DP2SSM recommends denying the applicant’s request to change the RE code.  There is no evidence of an error or injustice in reference to the applicant’s RE code based on the documentation provided by the applicant and analysis of the facts.

The complete advisory opinion is at Exhibit E.

The BCMR Psychological Advisor finds insufficient evidence to support the applicant’s requests for the desired change.  The Board may elect to apply liberal consideration to the applicant’s request due to contention of a mental health condition.

The applicant’s mental health condition or emotional distress was not caused or exacerbated by her military duties but from the results of her own misconduct.  The applicant was placed on various temporary duty limiting condition (DLC) profiles and deemed not worldwide-qualified (WWQ) for pregnancy, appellate leave and emotional distress, but her mental health condition never elevated to a potentially unfitting condition meeting criteria for a referral to the Medical Evaluation Board (MEB) for a medical discharge or retirement.  Her last treatment note in service, dated 28 Oct 14, reported she was not placed on a DLC profile for her mental health condition and “Member DOES NOT require MEB/recommendation for administrative separation for their MH conditions at this time.” There were also no reports from her mental health providers or leadership of any observed concerns for her mental health condition that may interfere with her ability to reasonably perform her military duties.  The psychological advisor acknowledges that the applicant was diagnosed with post-traumatic stress disorder (PTSD) caused by her deployment experiences post-service and there were some notes during service that she was experiencing PTSD symptoms from her deployment, but her PTSD and deployment experiences were considered secondary and most likely tertiary to her legal stressors.  Receiving mental health treatment and/or mental health disorder diagnosis does not automatically render the condition as being unfitting.  Hypothetically and based on her records, that if her misconduct and court-martial conviction did not occur, her mental health condition would not have decompensated in reaction to her legal stressors and administrative discharge action.  She also would have continued to be able to serve reaching 20 years and would still not require an MEB for her mental health condition.  The applicant’s written personal statement, dated 17 Jul 20 for this petition also made no mention of her mental health condition causing her behaviors during service but rather, explained her son had physical, mental, and emotional issues and a history of making false claims and alleged she was not given due process with her court-martial.

The complete advisory opinion is at Exhibit F.

AFPC/DP2STM recommends denying the applicant’s request for retirement under TERA.  Since the applicant was under investigation during the lead up to the court-martial, she would not have been eligible to apply for TERA, which allows members that have over 15, but less than 20 years of total active duty service to apply for early retirement as authorized by the Secretary of the Air Force.  Additionally, the applicant’s case was submitted for coordination and reviewed by SAFPC, acting on behalf of the Secretary of the Air Force, which confirmed both the discharge and character of service.

The complete advisory opinion is at Exhibit G.

APPLICANT’S REVIEW OF AIR FORCE EVALUATIONS

The Board sent copies of the advisory opinions to the applicant on 24 Feb 21 for comment (Exhibit H), and the applicant replied on 26 Mar 21.  Through counsel, the applicant respectfully requests the Board disregard the advisory opinions and grant relief based upon the information provided in the original petition.  The AFPCs advisories, collectively, fail to address the principles of equity or clemency.

The psychological advisory opinion notes other instances of “misconduct” that were inaccurate, specifically failure to meet fitness standards occurred while she was on a profile which should have prevented her from having official test results recorded and the failure to pay debts arose due to a travel reimbursement delay.  By annotating these acts as misconduct, the provider is beginning the assessment with a derogatory impression that is unsupported by her record.  The advisory opinion also indicates that her mental health condition arose solely because of her misconduct and the consequences that flowed therefrom; however, her records contain numerous behavioral health entries dating all the way back to 1996.  The advisory opinion relies upon the underdiagnoses made between 2010 and 2013 rather than taking a holistic view to see that she suffered from depression throughout her military career and sought out treatment when her condition was exacerbated to an unmanageable level.  Her situation is indicative of major depressive disorder (MDD), recurring or PTSD rather than the far minimized diagnosis of adjustment disorders.  She sought mental health treatment for years prior to any allegations of misconduct, and she was convicted by culpable negligence as opposed to any intentional acts.  She suffered from mental health conditions that persisted for over 15 years of her military service that should have mitigated her discharge and which far outweighed her single act of negligent behavior occurring under highly stressful circumstances.

The applicant’s complete response is at Exhibit I.

ADDITIONAL AIR FORCE EVALUATION

SAFPC recommends denying the applicant’s request to change her discharge characterization.  After a thorough review of the evidence of record, the evidence presented by the applicant or her counsel are not found to be sufficient to conclude the applicant is the victim of an error or injustice. The UOTHC characterization and denial of Lengthy Service Probation (LSP) decisions were appropriate to the circumstances and SAFPC is not convinced the applicant’s records should be corrected in the manner requested by the applicant or her counsel.  The applicant’s counsel makes a variety of arguments intended to impugn the various separate and distinct actions at play in this case.  However, other than argument and conjecture, counsel has not presented sufficient evidence that is convincing the discharge characterization was excessively harsh or disproportionate to the circumstances, that the applicant was deprived of any procedural or substantive rights, or that the contested decisions, including those adjudicated by SAFPC and made by the Director of the Air Force Review Boards Agency, were erroneous, arbitrary, or unjust.

The complete advisory opinion is at Exhibit J.

APPLICANT’S REVIEW OF ADDITIONAL AIR FORCE EVALUATIONS

The Board sent a copy of the additional advisory opinion to the applicant on 6 May 21 for comment (Exhibit K), 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 injustice.  
The Board concurs with the rationale and recommendations of AFPC/DP2SSR, AFPC/DP2SSM, the BCMR Psychological Advisor, AFPC/DP2STM and SAFPC and finds a preponderance of the evidence does not substantiate the applicant’s contentions.  It appears the discharge was consistent with the substantive requirements of the discharge regulation and was within the commander’s discretion.  Nor was the discharge unduly harsh or disproportionate to the offenses committed.  In the interest of justice, the Board considered upgrading the discharge based on clemency; however, given the evidence presented and the criminal history provided by the applicant, the Board finds no basis to do so.  The Board also considered liberal consideration and believes the applicant’s mental health condition did not warrant a disability discharge as it was not a medical basis for career termination nor entry into the Integrated Disability Evaluation System, nor did the condition mitigate her actions, which led to her discharge.  Therefore, the Board recommends against correcting the applicant’s records.

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 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-2020-02788 in Executive Session on 14 Jun 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 3 Aug 20.
Exhibit B:	Documentary evidence, including relevant excerpts from official records.
Exhibit C:	Notification of Clarifying Guidance, SAF/MRBC to applicant, dated 25 Jan 21.
Exhibit D: Advisory opinion, AFPC/DP2SSR, dated 25 Jan 21.
Exhibit E:	Advisory opinion, AFPC/D2SSM, dated 4 Feb 21.
Exhibit F:	Advisory opinion, BCMR Psychological Advisor, dated 10 Feb 21.
Exhibit G:	Advisory opinion, AFPC/DP2STM, dated 22 Feb 21.
Exhibit H:	Notification of advisory, SAF/MRBC to applicant, dated 24 Feb 21.
Exhibit I:	Applicant’s response, dated 26 Mar 21.
Exhibit J:	Advisory opinion, SAFPC, dated 5 May 21.
Exhibit K:	Notification of advisory, SAF/MRBC to applicant, dated 6 May 21.
Exhibit L:	Notification of Clarifying Guidance, SAF/MRBC to applicant, dated 6 May 21.
Exhibit M:	Applicant’s response, FBI Background Report, dated 14 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 for Docket Number BC-2020-02788.

							____________________________
							Board Operations Manager, AFBCMR