RECORD OF PROCEEDINGS

IN THE MATTER OF:	DOCKET NUMBER: BC-2021-00294

xxxxxxxxxx	COUNSEL: NONE

	HEARING REQUESTED: YES	

APPLICANT’S REQUEST

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

2.  His grade be corrected to sergeant (E-4).

3.  He be given the Air Force Good Conduct Medal (AFGCM), the Air Force Training Ribbon (AFTR), the Air Force Longevity Service Ribbon (AFLSR), and the Air Force Outstanding Unit Award (AFOUA) with one Bronze Oak Leaf Cluster (AFOUA w/1BOLC) (No Board Action Required/Already Corrected). 

APPLICANT’S CONTENTIONS

He was discharged while he was in the alcohol and drug program.  He worked in dangerous conditions and was not given the opportunity for help.

In support of his request for clemency, the applicant provides copies of military kudos. 

The applicant’s complete submission is at Exhibit A.

STATEMENT OF FACTS

The applicant is a former Air Force airman first class (E-3).

On 4 Oct 89, the applicant’s commander recommended the applicant be discharged from the Air Force, under the provisions of AFR 39-10, Administrative Separation of Airmen, paragraph 5-47b for misconduct; pattern of misconduct prejudicial to good order and discipline.  The specific reasons for the action were:

a.	On 8 Jul 85, Letter of Reprimand (LOR) issued for suspended driver’s license for driving under the influence (DUI).
	
b.	On 19 Aug 87, LOR issued for suspended driver’s license for DUI.

c.	On 2 Feb 89, AF Form 3070, Record of Nonjudicial Punishment Proceedings, indicates applicant received nonjudicial punishment, Article 15 for disorderly conduct.  He received a reduction in grade to airman first class (E-3), suspended until 1 Aug 89, and forfeiture of $150.00 pay for one month. 

d.	On 24 Aug 89, AF Form 3070, Record of Nonjudicial Punishment Proceedings, indicates applicant received nonjudicial punishment, Article 15 for failure to go.  He received a reduction in grade to airman first class (E-3).

e.	On 18 Sep 89, AF Form 2731, Notification of Drug or Alcohol Abuse, indicates the applicant failed rehabilitation.

On 7 Dec 89, the Staff Judge Advocate found the discharge action legally sufficient.

On 21 Dec 89, the discharge authority directed the applicant be discharged for misconduct, with a general service characterization.  Probation and rehabilitation was not offered.

On 2 Jan 90, the applicant received a general (under honorable conditions) discharge in the grade of airman first class (E-3).  His narrative reason for separation is “Misconduct-Pattern Conduct Prejudicial to Good Order and Discipline” and he was credited with 5 years, 11 months, and 24 days of total active service.  The awards shown are the AFGCM, AFTR, AFLSR, and the AFOUA with 1BOLC.  

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

POST-SERVICE INFORMATION

On 22 Apr 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); however, he has not replied.

APPLICABLE AUTHORITY/GUIDANCE

AFI 36-3202, Certificate of Release or Discharge from Active Duty (DD Form 214/5 series) Table 4, states the DD Form 214 reflects the active duty grade held at separation.

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 for Personnel and Readiness (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 22 Apr 21, the Board staff provided the applicant a copy of the liberal consideration guidance (Exhibit C).

AFI 36-3208, Administrative Separation of Airmen, describes the types of service characterization: 

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 completed a review of all available records and finds insufficient evidence to support the applicant’s desired changes to his record.  The legal review of the discharge, dated 7 Dec 89, stated the applicant was given every opportunity to help himself.  He was enrolled in the Alcohol Rehabilitation Program following his alcohol-related incidents but he continued to have problems which manifested themselves in two DUIs and a failure to go.  The applicant was admitted to the Alcohol Rehabilitation Center early in his service career for alcohol treatment and the records reflect the applicant was also referred to the Social Actions office on base for outpatient alcohol treatment.  A review of the applicant’s available service treatment records revealed no evidence of the applicant having made any request for mental health treatment or evaluation in service.  The records reflect the applicant’s primary issue was alcohol dependence leading to misconduct, which is an unsuiting condition and incompatible with continued military service.  There is no evidence or records to suggest the applicant’s maladaptive alcohol use was a coping strategy for an underlying mental health condition.  There is no evidence the applicant received any mental health treatment, evaluation, or mental health diagnosis in service.  There is no evidence the applicant received a diagnosis of a mental health condition in service. There was also no record of any observed mental health issues by his leadership (in Airman Performance Reports (APR)) or any complaints made by the applicant to his medical providers about any mental health issues while he was in the service.  The applicant was never placed on a duty limiting conditions profile for a mental health condition and he was never deemed not worldwide qualified due to a mental health condition.  The applicant’s supervisor stated, in an APR dated 31 July 89,  that he needs to improve in the areas of military bearing and behavior, adapt better to the military life, and to be responsible for his actions both on-and off-duty.  Of note, during the rating period of 1 Aug 87 through 31 Jul 88, during a period of sobriety following treatment in the Alcohol Rehabilitation Center, the applicant received no disciplinary actions and also received the highest possible ratings on his APR, all nines, with a comment from his supervisor stating the applicant’s knowledge, judgment, military bearing and response to instruction are but a few of his many outstanding strengths.  He is an excellent team worker who instills harmony within his section.  Multiple attempts at alcohol rehabilitation were provided to the applicant throughout his time in service, and contrary to the applicant’s contention he was not discharged while in treatment for alcohol.  The applicant completed inpatient alcohol treatment on 3 Dec 87 and the Social Actions office stated a disposition of program removal due to “failed rehabilitation” on 18 Sep 89; more than three months prior to applicant’s discharge.  The Board may elect to apply liberal consideration to the applicant’s request due to his contention of a mental health condition, however, since there is no evidence that he had any mental health conditions in service, his conditions/experiences do not excuse, mitigate, or outweigh his original discharge.

Liberal consideration is applied to the applicant’s request due to the contention of a mental health condition.  The following responses are based on information provided in the record to the four pertinent questions in the policy:

1.  Di the veteran have a condition or experience that may excuse or mitigate the discharge?
The applicant claims he was discharged while in an alcohol and drug program and not allowed to get help; he selected “other mental health condition” on the application.  There is no evidence or medical records to indicate the applicant had a mental health condition or experience that would excuse or mitigate his discharge.   

2.  Did the condition exist or experience occur during military service?
There is no objective evidence or medical records to indicate the applicant had any mental health condition in service.

3.  Does the condition or experience excuse or mitigate the discharge?
There is no evidence that the applicant had any mental health conditions while in service, and therefore, the discharge in not excused or mitigated.

4.  Does the condition or experience outweigh the discharge?
Since there is no evidence that he had any mental health conditions in service, his conditions/experiences do not outweigh his original discharge.  

The complete advisory opinion is at Exhibit D.

APPLICANT’S REVIEW OF AIR FORCE EVALUATION

The Board sent a copy of the advisory opinion to the applicant on 7 Dec 21 for comment (Exhibit E), but has received no response.

FINDINGS AND CONCLUSION

1.  The application was timely filed.  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 limitation 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.  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.  The Board concurs with the rationale of the AFBCMR Psychological Advisor and finds a preponderance of the evidence does not substantiate the applicant’s contentions.  Specifically, there is no evidence the applicant had any mental health conditions in service.  Multiple attempts at alcohol rehabilitation were provided to the applicant throughout his time in service.  The applicant’s primary issue was alcohol dependence leading to misconduct, which is an unsuiting condition and incompatible with continued military service.  There is no evidence or records to suggest the applicant’s maladaptive alcohol use was a coping strategy for an underlying mental health condition.  On 24 Aug 89, the applicant received nonjudicial punishment which resulted in a reduction in grade to airman first class (E-3).  He had a pattern of misconduct which led to his reduction in grade and ultimately, his discharge.  He was discharged on 2 Jan 90 and his DD Form 214 reflects the active duty grade held at separation which was E-3.  The applicant’s DD Form 214 also indicates he was awarded the Air Force Good Conduct Medal, the Air Force Training Ribbon, the Air Force Longevity Service Ribbon, and the Air Force Outstanding Unit Award with one Bronze Oak Cluster.  In the interest of justice, the Board considered upgrading the discharge based on clemency; however, given the evidence presented, and in the absence of post-service information and a criminal history report, the Board finds no basis to do so.  Therefore, the Board recommends against correcting the applicant’s record.

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-2021-00294 in Executive Session on 26 Jan 22:

, 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 1 Oct 20.
Exhibit B:	Documentary Evidence, including relevant excerpts from official records.
Exhibit C:	Letter, SAF/MRBC, w/atchs (Post-Service Request and Liberal Consideration  
                  Guidance), dated 22 Apr 21.
Exhibit D:	Advisory Opinion, AFBCMR Psychological Advisor, dated 6 May 21.
Exhibit F:	Notification of Advisory, SAF/MRBC to Applicant, dated 7 Dec 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.