RECORD OF PROCEEDINGS

IN THE MATTER OF:	DOCKET NUMBER: BC-2021-00298

xxxxxxxxxxxxxx	COUNSEL: XXXXXXXXXXX

	HEARING REQUESTED: YES

APPLICANT’S REQUEST

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

2.	His grade of E-4 be restored.

APPLICANT’S CONTENTIONS

His very first psychiatric episode required a two-day hospitalization and occurred while he was an E-4 on active duty.  He was discharged from the hospital with no prescribed medication and no clear follow-up care.  After the hospital discharge he attempted to control his extreme mood swings and changes via the use of alcohol and cannabis.  After his discharge, he was diagnosed with Bipolar disorder by the Department of Veterans Affairs (DVA) and has been hospitalized over a dozen times for this disorder.  He has been prescribed cannabis for his bipolar disorder and his other anxiety and pain issues.  His DVA therapists concluded his Bipolar disorder began with his initial hospitalization in 1983.  His good work and accomplishments post-service should be considered in his request for a discharge upgrade.

In support of his request for clemency, the applicant provides several character reference letters and his DVA medical records. 

The applicant’s complete submission is at Exhibit A.

STATEMENT OF FACTS

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

On 13 Nov 79, the applicant received a referral Airman Performance Report (APR) for conduct below minimum acceptable standards.  Comments made on his APR state his duty performance and conduct on-duty have been exemplary, but elements of his personal life have caused unfavorable encounters with civilian authorities.  Despite repeated counseling, he has displayed no appreciable ability to alter his behavior, control his emotional reactions, or resolve conflicts in his personal life.

On 20 Jul 81, AF Form 418, Selective Reenlistment/Noncommissioned Officer Status Consideration, indicates the applicant was appointed as a Non-Commissioned Officer (NCO).

According to documentation provided by the applicant, on 13 Jan 82, he received nonjudicial punishment (NJP), Article 15, for accepting a personal collect call at government expense and possession of marijuana.  He received a reduction in grade to airman first class (E-3) and 21 days of correctional custody, both suspended until 17 Jul 82 and forfeiture of $100 pay per month for 2 months.  

According to documentation provided by the applicant, on 19 May 82, his NJP of reduction in grade to airman first class (E-3) and 21 days of correctional custody was set aside, with an effective date of 27 May 82. 

On 15 May 84, AF Form 418, indicates the applicant’s appointment as a Non-Commissioned Officer (NCO) was vacated due to a positive urinalysis for TBC.  On 16 May 84, the applicant indicated he would appeal the decision and on 21 Jun 84, his appeal was denied.

On 5 Nov 84, the applicant received a referral APR for serious mismanagement of personal affairs.  Comments made on his APR state his personal responsibilities have not met acceptable military standards.  He has been verbally counseled with no improvement.  He was not recommended for promotion or retention in the Air Force.

According to documentation provided by the applicant, on 20 Nov 84, he received NJP, Article 15, for willful damage of government property and assault.  He received a reduction in grade to airman first class (E-3).  

Dated 8 Apr 85, AF Form 2098, Duty Status Change, indicates the applicant was incarcerated in the county jail on 9 Apr 85 for violating a restraining order.  On 12 Apr 85, he was released and returned to duty.

On 22 Apr 85, the applicant received a general (under honorable conditions) discharge in the grade of senior airman (E-4).  His narrative reason for separation is “Misconduct-Pattern Conduct Prejudicial to Good Order and Discipline” and he was credited with 7 years, 5 months, and 19 days of total active service.

Issued 13 May 04, the Certification of Military Service indicates the applicant served honorably from 31 Oct 77 to 16 Aug 82.

According to documentation provided by the applicant, on 20 Aug 07, he submitted a request to have his general (under honorable conditions) discharge upgraded to a medical discharge due to a personality disorder. 

On 17 Oct 07, the AFBCMR Medical Advisor recommended denying the applicant’s request for a medical discharge stating the preponderance of evidence in the record shows that the applicant's administrative discharge was handled appropriately.  The action and disposition in this case were proper and equitable reflecting compliance with Air Force directives that implement the law.  It was evident that he was identified as a marijuana user on at least two occasions.  While he had a psychiatric history of Adjustment Disorder with depressed mood and was hospitalized with suicidal ideation regarding domestic issues, there was no linkage established between his Adjustment Disorder and his drug usage.  The commander is tasked to determine the reason for the separation, and the characterization of the applicant's service. The council appropriately found that the applicant's medical condition in no way influenced or mitigated his misconduct.  Next, the commander then had to weigh the severity of the misconduct versus the severity of the applicant's condition.  The applicant was allowed to remain on active duty despite his Adjustment Disorder which was identified two years prior to his general discharge. This reviewer opines that reasons for the administrative discharge action were the marijuana usage and other civilian legal issues and not an Adjustment Disorder.

On 2 Nov 07, the applicant requested his case be closed to give him time to provide additional evidence to support his claim.  

On 18 Jan 08 the AFBCMR staff closed his case.

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

POST-SERVICE INFORMATION

On 26 Jan 22, 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 26 Jan 22, the Board staff provided the applicant a copy of the liberal consideration guidance (Exhibit E).

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 records.  The applicant did not provide additional evidence or records to demonstrate how his claim of a mental health condition caused or impacted his behavior or affected his ability to continue to serve in the military. There were no statements from the applicant’s leadership (in APRs or other statements) of how his mental health condition interfered with his ability to perform his military duties.  To the contrary, the applicant’s leadership noted, in his APRs, that his off-duty conduct and interpersonal relationships were problematic for the applicant, although his duty performance was satisfactory or above.  This is, however, not indicative of a mental illness; rather, based on review of the records revealed the applicant had maladaptive coping skills and struggled with marital and financial issues.  In the 29 Jan 82 through 8 Sep 82 rating period, his raters stated he performs his assigned tasks in an effect manner but his attitude toward the military courtesy code needs improvement.  He has the growth potential and capability of becoming an outstanding NCO and filling positions of greater responsibility provided he exerts the extra effort required on his part.  This rating period immediately followed the applicant’s visit to the emergency room in which he was admitted overnight for observation and was given a diagnosis of Adjustment Disorder.  The applicant no-showed for his scheduled outpatient follow-up appointment and had no encounters with mental health for more than 15 months at which time he stated he did not want mental health services.  On the 16 Dec 83 through 1 Mar 84 rating period, the applicant’s supervisor stated he accomplished all assigned duties and carried out his responsibilities in an acceptable manner but did not always exhibit enough tact while conversing with superiors.  The applicant received a referral APR for the rating period 9 Sep 83 through 5 Dec 84; which stated although he has performed duties satisfactorily, his after duty behavior leaves a lot to be desired and cannot be tolerated and he be relieved of his Air Force duties.  The applicant was again referred to mental health during this rating period and was seen in the mental health clinic at which time he declined mental health services.  Because the applicant’s discharge package is unavailable for review, the totality of the circumstances that lead the applicant’s discharge is unknown.  This psychological advisor concurs with the previous medical advisor which concluded no linkage was established between the applicant’s Adjustment Disorder and his drug usage.  Based on the available records and the applicant’s post-service records, it seems more likely than not the applicant’s condition developed post-service.  The applicant submitted evidence that the DVA has denied his claim for service connection for his psychiatric condition citing “there is no evidence to show that you were treated for a psychiatric condition including bipolar disorder during your honorable period of service from 31 Oct 77 to 30 Sep 83.  Benefits are not payable for any condition or disability which arose during your dishonorable period of service.”  The board may elect to apply liberal consideration to the applicant’s request due to his contention of a mental health condition, however, the applicant was discharged due to misconduct.  Although his discharge package is not available for review, the records reveal that some of his misconduct involved violence toward others and thus is not considered under the intent and guidance of liberal consideration.  The applicant did not provide any evidence or records to substantiate his claim that a mental health condition in service caused his misconduct, thus his condition does not mitigate or excuse his discharge.

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

1. Did the veteran have a condition or experience that may excuse or mitigate the discharge? 
The applicant contends he had his first psychiatric episode while on active duty.

2. Did the condition exist or experience occur during military service?
There is evidence the applicant received a mental health diagnosis of Adjustment Disorder in service and was rweferr3d on multiple occasions to mental health related to his martial and financial problems in service.  The applicant, however, declined mental health services and declined problematic substance use while in service.

3.	Does the condition or experience excuse or mitigate the discharge?
The applicant’s narrative reason for discharge was “Misconduct – Pattern of Conduct Prejudicial to Good Order and Discipline.”  The applicant declined mental health follow-up services on multiple occasions and denied problematic substance use in service.  The applicant did not provide any evidence or records to substantiate his claim that his mental health condition caused his misconduct thus his condition does not mitigate nor excuse his discharge.

4.	Does the condition or experience outweigh the discharge?
The applicant was discharged due to misconduct per his DD Form 214, Certificate of Release or Discharge from Active Duty.  Although his discharge package is not available for review, the records reveal that some of his misconducts involve violence toward other and thus are not considered under the intent and guidance of liberal consideration.  The applicant did not provide any evidence or records to substantiate his claim that a mental health condition in service caused his misconduct, thus his condition does not mitigate nor excuse his discharge.   

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 26 Jan 22 for comment (Exhibit D), and the applicant replied on 14 Feb 22 and 16 Feb 22.  In his response, the applicant contends the advisory opinion characterization which resulted in his discharge is inaccurate and not factual.  His ex-wife is the cause of most if not all his disciplinary problems he had while in the service.  He explains several incidents to which his ex-wife was the instigator.  His toxic marriage and his deteriorating mental health while working in a stressful military occupation contributed to the character of his discharge.  He was also granted an emergency relocation through the Threatened Airman Program due to threats and intimidation from a fellow airman which further exasperated his anxiety and depression.  He is being denied a military disability from the DVA for a psychiatric disorder that began in the military.

The applicant’s complete response is at Exhibit F.

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.  Therefore, 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.  Furthermore, the Board applied liberal consideration to the evidence submitted by the applicant; however, it is not sufficient to grant the applicant’s request.  The records available reveal that some of his misconduct involved violence toward others and thus is not considered under the intent and guidance of liberal consideration.  The applicant did not provide any evidence or records to substantiate his claim that a mental health condition in service caused his misconduct, thus his condition does not mitigate or excuse his 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-2021-00298 in Executive Session on 23 Feb 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 2 Nov 20.
Exhibit B:	Documentary Evidence, including relevant excerpts from official records.
Exhibit C:	Advisory Opinion, AFBCMR Psychological Advisor, dated 15 Jun 21.
Exhibit D: Notification of Advisory, SAF/MRBC to Applicant, dated 26 Jan 22.
Exhibit E: Letter, SAF/MRBC, w/atchs (Post-Service Request and Liberal Consideration  
                  Guidance), dated 26 Jan 22.
Exhibit F: Applicant’s Response, dated 14 and 16 Feb 22.
Exhibit G:	Previous Case Files (BC-2007-02850), dated 18 Jan 08.

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.