RECORD OF PROCEEDINGS

IN THE MATTER OF:	DOCKET NUMBER: BC-2021-00094

	COUNSEL: NONE

	HEARING REQUESTED: YES

APPLICANT’S REQUEST

Her character of service be amended to honorable from uncharacterized and remove “performance and conduct” from the narrative reason on her DD Form 214, Certificate of Release or Discharge from Active Duty.

APPLICANT’S CONTENTIONS

She never received any disciplinary action while serving in the Air Force. While in training, she accepted a ride in her sergeant’s privately owned vehicle (POV) where he sexually assaulted her.  She was sent to mental health, but the counselor blamed her for the incident for riding in a superior’s POV knowing it was not allowed.  She was then assigned to a new sergeant who was inappropriate when comforting her from the sexual assault and made her feel uncomfortable.  A co-worker told her the sergeant was also inappropriate with her.  The sergeant was either removed or left.  She was then assigned to another sergeant who she felt retaliated against her for filing a sexual harassment case.  He bullied her into signing for a discharge.  She refused numerous times and stated that she did not want to leave the Air Force or Security Forces.  He kept insisting and told her she would receive a general discharge and may get a medical discharge due to her asthma.  She had nowhere to turn, and no one had her back, so she finally signed the discharge after being worn down by the sergeant.

In support of her request, the applicant provides a detailed personal statement, copies of her DD Form 214, mental health evaluations, profile restriction, and a Department of Veterans Affairs (DVA) rating decision letter, dated 2 Jul 19.  The DVA service connected the applicant with post-traumatic stress disorder (PTSD) with 70 percent evaluation and increased her bronchitis (also claimed as asthma) from zero percent to 10 percent, effective 19 May 18, and service connection for hypotension (claimed secondary to heat injury) was denied.

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 Jan 88, according to DA Form 2496, Disposition Form, the applicant was placed on a temporary profile for heat intolerance and heat exhaustion with restrictions for 15 days.

On 28 May 88, according to DA Form 2496, the applicant was placed on a temporary profile for heat exhaustion and bronchitis with restrictions for 3 days.

On 1 Jun 88, according to DA Form 2496, the applicant was placed on a temporary profile for bronchitis with restrictions for 5 days.

On 16 Jun 88, according to DA Form 2496, the applicant was placed on a temporary profile for recent heat intolerance – at increased risk for reinjury, postural hypotension with restrictions for 7 days.

On 27 Jun 88, the applicant was referred for a mental health evaluation for reason that she may have been using her conditions of dizziness and passing out during hot weather to get out of training and work.

On 28 Jun 88, the mental health clinic determined the applicant did not appear to be well motivated to complete her training nor did she seem convinced the assessment was necessary for her continued military career.  It was also noted the applicant had been seen on 8 Jun 88 following an incident of sexual harassment.  The evaluator recommended the applicant be separated if she continued to have problems completing her training.

On 15 Jul 88, the applicant’s commander recommended the applicant be discharged from the Air Force, under the provisions of AFR 39-10, Separation Upon Expiration of Term of Service, for Convenience of Government, Minority, Dependency and Hardship, paragraph 5-22 with an entry level separation, for failure to adapt to the military environment and failure to make satisfactory progress in a required training program.  The specific reasons for the action were her failure to adapt to the military environment and failure to make satisfactory progress in a required training program due to her intolerance for the heat.

On 15 Jul 88, the applicant acknowledged receipt of the discharge action, waived her right to consult with counsel and to submit statements.

In Jul 88, the applicant underwent a medical records review for separation, and she was found to be worldwide qualified.
 
On 17 Jul 88, the Staff Judge Advocate found the discharge action legally sufficient.

On 19 Jul 88, the discharge authority directed the applicant be discharged with an entry level discharge.

On 20 Jul 88, the applicant received an uncharacterized discharge with a narrative reason for separation of “Entry Level Performance and Conduct” and was credited with 5 months, and 25 days of active service.

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

On 7 Oct 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 would assist the Board in evaluating her case.  Although the applicant did reply to the request for post-service information, her response did not include an FBI background check or other criminal history data, nor supporting evidence.

The applicant’s complete response is at Exhibit H.

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 USD P&R 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 9 Jun 21, Board staff provided the applicant a copy of the liberal consideration guidance (Exhibit C).

DoDI 1336.01, Certificate of Release or Discharge from Active Duty (DD Form 214/5 Series). The Department of Defense (DoD) authorizes six characterizations of service for military service members to receive on discharge: (1) Honorable; (2) Under Honorable Conditions (General); (3) Under Other than Honorable Conditions; (4) Bad Conduct; (5) Dishonorable, and (6) Uncharacterized. 

DODI 1332.14, Enlisted Administrative Separations.  A separation will be described as an entry-level separation if separation processing is initiated while an enlisted service member is in entry level status (180 days continuous active duty) except when: (1) Characterization under other than honorable is authorized under the reason for separation and is warranted by the circumstances or (2) The Secretary concerned on a case by case basis determined the characterization of service as honorable is warranted.  The characterization is authorized due to reason of selected changes in service obligation, convenience of the government, disability, secretarial plenary authority or an approved reason established by the Military Department.  

Entry level separations, which are accompanied by an uncharacterized discharge, are given to individuals who separate prior to completing 180 days of military service or when discharge action was initiated prior to 180 days of service. This type of discharge does not attempt to characterize service as good or bad. Rather, an uncharacterized discharge is the absence of a characterization of service, as the individual being discharged does not have sufficient time in service in order to fairly characterize the individual's service.  

AIR FORCE EVALUATIONS

AFPC/DP2SSR recommends denying the application.  The commander provided the Base Discharge Authority (BDA) ample justification to support separation.  Furthermore, 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.

The complete advisory opinion is at Exhibit D.

The AFRBA Psychological Advisor completed a review of all available records and finds insufficient evidence to support the applicant’s request for the desired changes to her record.  After reviewing all available records, the psychological Advisor finds the applicant’s account slightly differs from the information found in her objective military file.  There is evidence the applicant reported being sexual harassed but not assaulted during service when she was initially seen at the mental health clinic on 8 Jun 88.  She contends she felt she was not getting any help when she went to the clinic and could have been the reason she was guarded during her command referred mental health evaluation later that month.  However, the validity of the applicant’s sexual assault or sexual harassment experience is not in question but whether, her mental health condition or the effects of her sexual assault/harassment experiences caused her behaviors leading to her discharge from service.  There is no evidence to support this notion.  The applicant’s military records find multiple documentations she had behavioral and performance problems characterized as her refusal and display of uncooperative behaviors with participating and completing her required training.  She was encouraged and given opportunities by her leadership to complete her training but was found to be unmotivated to do so, and these were the reasons for her discharge.  Also, the applicant had performance issues almost immediately after entering the service in Jan 88 and her difficulties predated her sexual assault/harassment experiences that the applicant reported first occurred in Jun 88.  Therefore, her sexual assault and/or harassment experiences could not have caused or mitigated her pre-existing behavioral and performance issues.  Her sexual assault/harassment experiences and behavioral/performance issues appeared to be two mutually exclusive events with no nexus to one or the other.  The applicant alleges she was pressured into signing discharge paperwork, and there is no evidence to support this allegation.  She was discharged for reason of entry-level performance and conduct, and this is considered an involuntary separation and does not require her consent.  There is also no evidence her mental health condition or stressors caused by her sexual assault/harassment experiences caused her behaviors or performance during service leading to her early discharge from service.  Finally, the applicant was discharged under entry-level separation due to not completing 180 continuous days of active duty service and received an uncharacterized service characterization.  This is standard operating procedure per past and present regulations.  Thus, there is no error or injustice identified with her discharge.

The Board may elect to apply liberal consideration to her petition. The following are answers to
the four questions from the policy based on the available records for review:

1. Did the veteran have a condition or experience that may excuse or mitigate the discharge?  The applicant contends she was sexually assaulted and harassed during service.  She alleges being coerced into signing discharge paperwork from a different sergeant because he was upset with her for speaking out against him assigning duties to her that had violated her physical profile.

2. Did the condition exist or experience occur during military service?  There is evidence the applicant reported being sexually harassed but not sexually assaulted during service.  Her DVA treatment records revealed she reported she was sexually harassed and assaulted during service.

3. Does the condition or experience excuse or mitigate the discharge?  There is no evidence her sexual assault and/or harassment experiences caused, excused, or mitigated her discharge.  She had documented behavioral and performance issues prior to her reported sexual assault/harassment experiences and no evidence the latter experiences or her mental health condition caused, excused, or mitigated her discharge.  There is no evidence she was pressured into signing discharge paperwork.

4. Does the condition or experience outweigh the discharge? Since there is no evidence her mental health condition or sexual assault/harassment experiences caused her behaviors or misconduct, her condition or experiences also do not outweigh her discharge.

The complete advisory opinion is at Exhibit E.

APPLICANT’S REVIEW OF AIR FORCE EVALUATIONS

The Board sent copies of the advisory opinions to the applicant on 28 Sep 21 for comment (Exhibit F), and the applicant replied on 20 Oct 21.  In her response, the applicant again contends she feels the incident was skillfully planned to get her out to cover up what was happening at the base at the time of her discharge.  It wasn’t until after she filed a complaint of sexual harassment that she was pushed to leave the military.  She filed paperwork and saw Mental Health about the assault but there was no information given to her following what happened.  She just got bullied after that.  This was clear retaliation.  Furthermore, she was not trying to avoid training or lacked motivation, but she was genuinely sick.  She was diagnosed with heat stroke, heat exhaustion and bronchitis.  She had never been sick or even seen a doctor prior to entering the military.

The applicant’s complete response is at Exhibit H.

FINDINGS AND CONCLUSION

1.  The application was timely filed.

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 agrees with the recommendations of the AFRBA Psychological Advisor and AFPC/DP2SSR and finds a preponderance of the evidence does not substantiate the applicant’s contentions.  It appears the discharge was consistent with the substantive requirements for entry-level separation/uncharacterized service characterization and was within the commander’s discretion.  The Board considered changing the narrative reason for separation through the lens of liberal consideration and while the Board does not dispute the applicant’s claim of sexual harassment, the Board finds insufficient evidence that it contributed to her discharge.  In the interest of justice, the Board also considered changing the narrative reason for separation based on fundamental fairness; however, given the evidence presented, and in the absence of post-service information provided by the applicant, the Board finds no basis to do so.  Therefore, the Board recommends against correcting the applicant’s record.

4.  The applicant also alleges she faced retaliation after filing a complaint of sexual harassment and was pushed to leave the military.  Based on the authority granted to this Board pursuant to 10 U.S.C. § 1034, the Board reviewed the complete evidence of record to reach our own independent determination of whether reprisal occurred.  Based on our review, the Board concludes the applicant has failed to establish that her discharge was due to reprisal.  Therefore, in the absence of persuasive evidence to the contrary, the Board does not find the applicant has been the victim of reprisal pursuant to 10 U.S.C. § 1034. 

5.  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-2021-00094 in Executive Session on 18 Nov21:

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 28 Oct 20 and 28 Nov 20.
Exhibit B:	Documentary Evidence, including relevant excerpts from official records.
Exhibit C:	Letter, SAF/MRBC, w/atchs (Clarifying Guidance), dated 9 Jun 21.
Exhibit D:	Advisory Opinion, AFPC/DP2SSR, dated 10 Jun 21.
Exhibit E:	Advisory Opinion, AFRBA Psychological Advisor, dated 27 Sep 21.
Exhibit F:	Notification of Advisories, SAF/MRBC to Applicant, dated 28 Sep 21.
Exhibit G: Letter, SAF/MRBC, w/atch (Clemency Bulletin), dated 7 Oct 21.
Exhibit H:	Applicant’s Response, dated 20 Oct 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-2021-00094.