RECORD OF PROCEEDINGS

IN THE MATTER OF:	DOCKET NUMBER: BC-2021-00550

	COUNSEL: NONE

	HEARING REQUESTED: YES

APPLICANT’S REQUEST

His dishonorable discharge be upgraded to a bad conduct discharge (BCD).

APPLICANT’S CONTENTIONS

His discharge be upgraded based on liberal consideration due to his diagnosed post-traumatic stress disorder (PTSD).  On 3 Apr 19, a Department of Veterans Affairs (DVA) doctor diagnosed him with PTSD non-combat related stemming from his military friend’s death in 2002, which directly explained his out-of-the-ordinary behavior.  The PTSD directly contributed to his in-service charge of attempt of sexual assault because of his self-destructive behavior factor.

He also requests his discharge be upgraded based on clemency.  With his application and in support of his request for clemency, the applicant provides a personal statement and copies of post service certificates, graduation certificate, acceptance to a master’s degree program, character statements, and other documents related to his request for upgrade.

The applicant’s complete submission is at Exhibit A.

STATEMENT OF FACTS

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

On 16 Feb 16, the convening authority published General Court-Martial Order Number 9.  The order stated the applicant pleaded not guilty and was found guilty of one charge (Article 80) to attempt to commit a sexual act upon a child who had attained the age of 12 but not 16 (on or about 13 Jan 15) and attempt to commit lewd acts upon a child who had not attained the age of 16 years (on or about 7 and 13 Jan 15).  The applicant was sentenced to confinement for two years, reduction to the grade of airman basic, and a dishonorable discharge.

On 2 Nov 18, the convening authority published General Court-Martial Order Number 7.  The applicant’s sentence to a dishonorable discharge, confinement for two years, and reduction to the grade of airman basic as promulgated in General Court-Martial Order Number 9, dated 16 Feb 16, was affirmed.

On 1 Mar 19, the applicant received a dishonorable discharge.  His narrative reason for separation is “Misconduct (sexual perversion)” and he was credited with 15 years, 3 months, and 13 days of total active service and 2 years lost time (19 Nov 15 – 18 Nov 17).
For more information, see the excerpt of the applicant’s record at Exhibit B and the advisory at Exhibit E.

POST-SERVICE INFORMATION

On 4 Aug 21, the Board sent the applicant a request for post-service information and advised the applicant he was required to provide a Federal Bureau of Investigation (FBI) Identity History Summary Check, if he desired the Board to consider his request under clemency, which would indicate whether or not he had an arrest record.  In the alternative, the applicant could provide proof of employment in which background checks are part of the hiring process (Exhibit C).  The applicant replied on 10 Aug 21 and provided an FBI report.  According to the report, the applicant has had no further arrests since discharge.  The applicant also noted that the FBI report listed incorrect UCMJ articles as well as his height and weight.

The applicant’s complete response is at Exhibit D.

APPLICABLE AUTHORITY/GUIDANCE

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.

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 4 Aug 21, the Board staff provided the applicant a copy of the liberal consideration guidance (Exhibit C).

AIR FORCE EVALUATION

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 his record.  The psychological advisor opines liberal consideration is not required to be applied to the applicant’s request due to the element of premeditative behaviors, which is exempt from the policy.

The psychological advisor reviewed all available records and finds no nexus has been adequately established between the applicant’s mental health condition and misconduct. A review of the available records revealed the applicant voluntarily sought mental health treatment for having suicidal ideation after he was placed under investigation for his misdeeds during service.  This indicates his mental health condition was a reaction and result of the consequences of his own misconduct.  There were no records supporting he had any mental health concerns or issues prior to the revelation of his misconduct and ensuing legal issues.  It was also during his initial visit at the mental health clinic he disclosed having a sexual addiction.  There were no reports of any trauma he may have experienced suggesting he may have coped with the traumatic experience of his friend’s death with pornography addiction as he claimed.  Furthermore, there was no information in his records detailing when he began to develop a sexual/pornography addiction, whether his addiction had resulted from his grief/loss/trauma, and/or he coped with his trauma with pornography and later developing an addiction.  The applicant was never diagnosed with PTSD during service and no evidence of any traumatic experiences documented in his service treatment records.  The applicant contends he was diagnosed with PTSD by his DVA provider on 3 Apr 19.  The psychological advisor reviewed his DVA treatment records and finds no entry on this date that he was diagnosed with PTSD and in fact, there was no evidence or indications whatsoever that he was ever diagnosed with PTSD by the DVA.  The applicant also did not submit his DVA treatment records to corroborate his contention.  Regardless of whether he had a valid PTSD diagnosis, being diagnosed with a mental health condition and/or receiving mental health treatment does not automatically warrant an upgrade of his character of service based on liberal consideration.  Demonstration of how his mental health condition influenced his behaviors leading to his discharge is necessary and imperative and the psychological advisor finds insufficient evidence exists to support this notion.

The psychological advisor opines liberal consideration is not required to be applied to the applicant’s request due to the element of premeditative behaviors, which is exempt from the policy.  However, should the Board elect to apply liberal consideration to his 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 he was diagnosed with PTSD caused by his friend’s death by a DVA physician post service and believes his mental health condition caused his behaviors and coped with his traumatic experience with pornography during service. 

2. Did the condition exist or experience occur during military service?  There is no evidence the applicant was diagnosed with PTSD during or post service.  The applicant did not submit any treatment records to support his diagnosis and contention.  There is evidence he voluntarily sought mental health treatment after he was under investigation for his misconduct and revealed to his military provider, he had a sexual addiction during service. 

3. Does the condition or experience excuse or mitigate the discharge?  Since there is no evidence, he was diagnosed with PTSD during or post service, a nexus could not be established to support his mental health condition of PTSD caused his behaviors and discharge.  His condition or PTSD or traumatic experience does not excuse or mitigate his discharge. The applicant reported having a sexual addiction during service and this condition may explain his behaviors but does not excuse or mitigate his discharge due to the egregious nature of his misconduct. 

4. Does the condition or experience outweigh the discharge?  Since there is no evidence, he had PTSD or similar conditions that would excuse or mitigate his discharge, his condition or traumatic experience also does not outweigh his original discharge.  Again, there was evidence he had a sexual addiction during service, but this condition does not outweigh the nature of the misconduct involving a minor resulting with a court martial conviction leading to his discharge.

The complete advisory opinion is at Exhibit E.

APPLICANT’S REVIEW OF AIR FORCE EVALUATION

The Board sent a copy of the advisory opinion to the applicant on 2 Dec 21 for comment (Exhibit F), and the applicant replied on 17 Feb 21.  In his response, the applicant reiterates his contention that his post-diagnosis of PTSD directly ties to his abnormal behavioral conduct and points to the fact that mental health could lead to self-destructive behavior.  He claims the advisory opinion is not accurate and he sought help for sex addiction before being placed under investigation for his misdeeds at a local church and with an off-base psychologist.  The reason he did not talk to his military superiors about the death of his friend is due to the mental health stigma in the military, he would be pulled from Personnel Reliability Program (PRP) duties and lose his security clearance.  Additionally, there is evidence in his DVA medical files of being 100 percent service-connected with PTSD.

He also contends that his behavior after release from prison has been exemplary in many ways, like being a 4.0 GPA student in his graduate program, graduating with honors for his undergraduate program, being a pivotal part of his community, letters from his chaplain, and more.

The applicant’s complete response is at Exhibit G.

FINDINGS AND CONCLUSION

1.  The application is timely.

2.  The applicant exhausted all available non-judicial relief before applying to the Board.

3.  After reviewing all Exhibits, to include the applicant’s response to the advisory opinion, the Board concludes the applicant is not the victim of an injustice.  The Board finds no evidence that the sentence of the military court was improper or that it exceeded the limitations set forth in the Uniform Code of Military Justice.  The Board concurs with the rationale of the AFRBA Psychological Advisor and finds a preponderance of the evidence does not substantiate the applicant’s contentions.  The Board notes the applicant’s misconduct was premeditated; therefore, liberal consideration was not considered.  In the interest of justice, the Board considered upgrading the discharge based on clemency; however, given the evidence presented, the Board finds no basis to do so. The Board notes the applicant provided a personal statement, copies of post service certificates, graduation certificate, acceptance to a master’s degree program, character statements and other documents related to his request for upgrade.  However, the Board could not overlook the severity of his infractions in service, which still outweigh his post service accomplishments.  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-2021-00550 in Executive Session on 15 Dec 21 and 25 May 22:

Panel Chair
Panel Member
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 Feb 21.
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 4 Aug 21.
Exhibit D: Applicant’s Response, w/atchs, dated 10 Aug 21.
Exhibit D: FBI Report, dated, 10 Aug 21.
Exhibit E:	Advisory Opinion, AFRBA Psychological Advisor, dated 2 Dec 21.
Exhibit F:	Notification of Advisory, SAF/MRBC to Applicant, dated 2 Dec 21.
Exhibit G:	Applicant’s Response, dated 17 Feb 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 for Docket Number BC-2021-00550.