RECORD OF PROCEEDINGS

IN THE MATTER OF:	DOCKET NUMBER: BC-2021-00319

XXXXXXXXXX	COUNSEL: NONE
(MEMBER)

XXXXXXXXXX 	HEARING REQUESTED: YES 	
(APPLICANT)

APPLICANT’S REQUEST

Change the service member’s records to reflect the following:

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

2.  His rank be restored to senior airman (E-4).

3.  His narrative reason for separation and any other negative references be changed to reflect a positive record of service. 

APPLICANT’S CONTENTIONS

She believes the service member found himself in a bad situation based on accepting responsibility for actions of his ex-wife.  He tried to kill himself when he felt he had no hope.  He accepted the punishment and character of service that was given to him at the time during his terrible ordeal because he was humiliated and ashamed and signed anything to move things along.  Since his separation, the Department of Veteran’s Affairs (DVA) has awarded him service-connected disability based on depression and post-traumatic stress disorder (PTSD).  He would like his records corrected to reflect his positive service history.  

In support of the service member’s request for clemency, the applicant provides a DVA rating decision, a personal statement, statements of support, and a power of attorney affidavit. 

The applicant’s complete submission is at Exhibit A.

STATEMENT OF FACTS

The service member is a former Air Force airman basic (E-1).

On 14 May 99, the service member’s commander recommended he be discharged from the Air Force, under the provisions of AFI 36-3208, Administrative Separation of Airmen.  The specific reasons for the action were:

	a. On diverse occasions between on or about 1 Jan 98 and on or about 28 Feb 98, he made several unauthorized ATM withdrawals from his government travel card.  

b. Between on or about 1 Sep 98 and on or about 26 Oct 98, he was delinquent in paying various debts.

c. On diverse occasions between on or about 23 Nov 98, 25 Nov 98, 10 Dec 98 and 14 Apr 99, he was derelict in his duties in willfully using his government travel card (GTC) for personal use.
	d. On or about 31 Dec 98 to on or about 31 Jan 99, he failed to pay his GTC debt.

	e. On or about 1 Feb 99, he failed to report to his appointed place of duty.

   	f. On or about 7 May 99, he failed to report to his appointed place of duty.  
	
On 19 May 99, the Staff Judge Advocate found the discharge action legally sufficient.

On 20 May 99, the discharge authority directed the service member be discharged for Misconduct, with an under honorable conditions (general) service characterization.  Probation and rehabilitation was considered, but not offered.

On 21 May 99, the service member received an under honorable conditions (general) discharge.  His narrative reason for separation is “Misconduct” and he was credited with 5 years, 1 month, and 29 days of total active service.

For more information, see the excerpt of the service member’s record at Exhibit B.

POST-SERVICE INFORMATION

On 22 Mar 21, the Board sent the applicant a request for post-service information (Exhibit C), including a standard criminal history report from the Federal Bureau of Investigation (FBI); however, he has not replied.

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 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 Mar 21, the Board staff provided the service member a copy of the consolidated clarifying 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.

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 trail 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.

AIR FORCE EVALUATION

HQ AFPC/DP2SSR recommends against upgrading his character of service and changing the narrative reason for separation and corresponding Separation Program Designator (SPD) code.  The commander provided the Base Discharge Authority (BDA) ample justification to support separation and the character of service. The BDA determined that the negative aspects of the service member’s conduct and behavior outweighed any positive aspects of his military career. Furthermore, the service member was reduced in rank/grade to Airman Basic/E-1 by his commander prior to his discharge; therefore, his DD Form 214 indicating his rank/grade is correct. Based on review of the master 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.

ADDITIONAL AIR FORCE EVALUATION

AFPC/DP2S recommends denying the application.  The service member’s power of attorney states the charges to his GTC were made by his ex-girlfriend stealing his credit card due to a drug addiction and the service member accepting responsibility stating it was due to falling behind on bills. The service member was issued several warnings before he was issued the first Article 15 to include, a Letter of Reprimand, dated 31 Mar 98 which was given to the service member for making several withdrawals from his GTC.  It was in this LOR that he was informed of available resources and it was requested that he notify his command of any debt(s) so they could assist him and possibly prevent future occurrences.  Based on the documentation provided by the applicant and analysis of the facts, there is no evidence of an error or injustice in the administrative demotion.

The complete advisory opinion is at Exhibit E.

ADDITIONAL AIR FORCE EVALUATION

The AFRBA Psychological Advisor completed a full review of all available records and finds insufficient evidence to support the applicant’s request for the desired changes to his records.  There was no evidence the service member’s depression or other mental health condition caused his behaviors, financial problems, misconduct, and disciplinary actions but rather, his mental health issues were the result of his own behaviors and misconduct.  The service member misused his GTC for personal use and was delinquent on paying his debts on numerous occasions that spanned over more than a year’s period.  There was no evidence in his records reporting it was his ex-wife that misused his GTC and regardless of whether she did or not, it was still his responsibility to pay his debts on time, safeguard his GTC, and not misuse the card for personal use.  He was given ample opportunities to correct his behaviors but to no avail before discharge actions were taken by his command.  Thus, there was no error or injustice identified with his discharge from service.  

The Board applied liberal consideration to the applicant’s request due to the contention of a mental health condition. The following are answers to the four pertinent 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’s wife contends his financial problems caused by his ex-wife resulted with him feeling depressed and attempting suicide. 

2.	Did the condition exist or experience occur during military service?
The applicant was hospitalized during service for attempting suicide by overdose and depression caused by his financial, relationship and occupational problems. 

3.	Does the condition or experience excuse or mitigate the discharge?
Most of the applicant’s misconduct were his financial problems of failure to pay his debts on time and misuse of his GTC stemming from his divorce.  These issues led to him developing depression and a suicide attempt.  There was no evidence his financial problems, behaviors, and disciplinary actions were caused by his mental health condition or depression and so his condition or experience does not excuse or mitigate his discharge. 

4.	Does the condition or experience outweighs the discharge?
Since there is no evidence his mental health condition or experience excuse or mitigate his discharge, they also do not outweigh his original discharge. 
 
The complete advisory opinion is at Exhibit F.

APPLICANT’S REVIEW OF AIR FORCE EVALUATIONS

The Board sent a copy of the advisory opinions to the applicant on 18 Jan 22 for comment (Exhibit G), 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.  In the interest of justice, the Board considered upgrading the discharge based on clemency; however, given the evidence presented, and in the absence of criminal history provided by the applicant, the Board finds no basis to do so.  Should the applicant provide a FBI report, the Board would be willing to reconsider his request.  Also, there was no evidence the service member’s depression or other mental health condition caused his behaviors, financial problems, misconduct, and disciplinary actions but rather, his mental health issues were the result of his own behaviors and misconduct.  Finally, the Board is satisfied that the application of liberal consideration does not warrant relief.  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-2021-00319 in Executive Session on 5 Feb 22 and 7 Mar 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 17 Sep 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 Mar 21.
Exhibit D:	Advisory Opinion, AFPC/DP2SSR, dated 28 Apr 21.
Exhibit E:	Advisory Opinion, AFPC/DP2S, dated 7 May 21.
Exhibit F:	Advisory Opinion, AFRBA Psychological Advisor, dated 2 Jun 21.
Exhibit G:	Letter, SAF/MRBC, dated 18 Jan 22.

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.