RECORD OF PROCEEDINGS

IN THE MATTER OF:	DOCKET NUMBER: BC-2021-00678

	COUNSEL: NONE

	HEARING REQUESTED: YES

APPLICANT’S REQUEST

All derogatory documents following her military sexual trauma (MST) incident be expunged from her records and her re-enlistment eligibility (RE) code 2 be corrected.

APPLICANT’S CONTENTIONS

Prior to her MST, her performance was satisfactory.  After her MST, higher-ups pushed her out of the military through falsifying evaluations, documents, and statements to protect the perpetrator, who was an officer and pilot.

In support of her request, the applicant provided copies of numerous documents from her military personnel records, Department of Veterans Affairs (DVA) rating decision, dated 27 Nov 13, indicating her post-traumatic stress disorder (PTSD) as service connected and assigned 100 percent, effective 28 Nov 12, and college transcripts.

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 7 Oct 73, according to AF Form 909, Airman Performance Report, the applicant was issued an initial report for the period of 17 Jul 72 thru 6 Oct 73 with an overall evaluation of 7 and indicated she was a capable individual and performed her duties in a satisfactory manner.

On 30 May 74, according to a Counseling memorandum, dated 31 May 74, the applicant reported for duty very upset and unable to function in a normal duty capacity after having a very unpleasant encounter with her husband from whom she had been separated for some time.  On 31 May 74, the applicant again reported for duty in an emotionally incapacitated state and referred for medical help.  The applicant requested time off to regain her composure but the request was denied based on medical and mental health personnel revealed non-existence of medical requirement for time off.  The applicant stated it was her desire to be removed from the Air Force as soon as possible and based on her incompetence in her present state of mind, she requested, and was granted an immediate leave.

On 17 Jun 74, the applicant’s noncommissioned officer in charge (NCOIC) recommended the applicant be expeditiously separated based on her performance had become unacceptable with deterioration of her performance beginning around Dec 73, and on 19 Jun 74, her superintendent also recommended a fast separation.

On 17 Jun 74, according to a Letter of Evaluation (LOE), the applicant was married in late Dec 73 and a few weeks after her marriage, she experienced a very “shocking” personal experience with her husband that seemed to have been the beginning of her change in performance and attitude.  The LOE indicated the applicant’s performance had become totally unacceptable and recommended separation from the Air Force as expeditiously as possible.

On 11 Jul 74, according to AF Form 909, the applicant was issued a referral report for the period 7 Oct 73 thru 31 May 74 with an overall evaluation of 3 and comments reflecting performance below minimum acceptable standards.

On 16 Jul 74, according to a memorandum from the applicant’s NCOIC, the applicant stated she had no desire to improve her performance, she already had a civilian job, and wanted to be separated from the Air Force as soon as possible.

On 26 Jul 74, the applicant’s commander recommended the applicant be discharged from the Air Force, under the provisions of AFM 39-10, Separation Upon Expiration of Term of Service, for Convenience of Government, Minority, Dependency and Hardship, Chapter 3, Section B, paragraph 3-8L.  The specific reasons for the action were:

a.	Failed to meet the acceptable standards of the military.
	
b.	Failed to perform her duties in the minimum acceptable manner.

c.	Performance report points up [out] deficiencies in all facets of military service requirements.

On 26 Jul 74, the applicant acknowledged receipt of the discharge action, did not request retention nor military legal counsel and did not submit statements on her behalf.

On an illegible date, the discharge authority directed the applicant be discharged with an honorable service characterization.

On 13 Aug 74, the applicant received an honorable conditions discharge with RE code of RE-2 (conditions barring immediate reenlistment), separation program designator (SPD) code of JGH (involuntary discharge, limited potential airman), and credited with 2 years and 17 days of total active service.

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

POST-SERVICE INFORMATION

On 6 Oct 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) which would assist the Board in evaluating her case under fundamental fairness; however, she 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 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 5 Jun 21, Board staff provided the applicant a copy of the liberal consideration guidance (Exhibit C).

AIR FORCE EVALUATION

The AFRBA Psychological Advisor finds insufficient evidence to support the applicant’s requests for the desired change to her record. The Board may elect to apply liberal consideration to the applicant’s requests due to her report of MST.

There was no objective reports in her military or service treatment records of any reported sexual assault. Regardless of the non-existent records, there was also no evidence her higher-ups had falsified documents to protect an alleged perpetrator, and the applicant has not submitted any evidence to substantiate her allegations.

The applicant submitted evidence from the Department of Veterans Affairs (DVA) reporting she was later given service connected compensation from the DVA for PTSD related to her MST experience.  The applicant did not discuss how the incident affected her functioning and behaviors in this petition, but contends her MST experience was the reason for the alleged false documents causing her discharge from service.  Although there was no actual reports of any MST or sexual assault in her military and service treatment records, there may be hints and clues her MST may have occurred during service.  The recommendation for discharge letter from her NCOIC reported her behaviors changed after Dec 73, the applicant had reported to the DVA in 2013 she was sexually assaulted during a Christmas party, and she listed the date of her MST as 25 Dec 73 for this petition.  These timelines and dates are consistent with one another.  Her records reported she had “personal problems” identified as her family problems in service, but it is possible her “personal problems” were MST.  Should this be the case, her MST experience and its residual mental health effects may cause the decline of her performance/unsatisfactory performance and behaviors causing her discharge from service as reported by her NCOIC.  It was reported the applicant had requested to be discharged from service, which was supported by her leadership, and she was able to receive an honorable discharge.  Therefore, there was no error or in-justice identified with her discharge from service.

The Board may elect to apply liberal consideration to the applicant’s requests due to her report of MST.  The following are responses based on information presented 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 reported she was sexually assaulted during service and contends her higher-up falsified documents to protect the perpetrator.

2. Did the condition exist or experience occur during military service?  There was no explicit or objective evidence in her military and service treatment records of any sexual assault during military service.  Based on her DVA records and the date of her MST listed in her petition matching the timeline and information in her military records, it is possible her MST had occurred during service in Dec 73.  There was however, no evidence her leadership had falsified documents to get her discharged from service because of her MST to protect the perpetrator.  There was evidence the applicant had “personal problems” in service affecting her behaviors leading her to discharge from service. 

3. Does the condition or experience excuse or mitigate the discharge?  It is possible her MST experience had occurred in service that could cause her discharge from service, but there was no evidence her leadership falsified records to get her discharge from service.  Therefore, the latter experience do not excuse or mitigate her discharge. 

4. Does the condition or experience outweigh the discharge?  Since there was no evidence her leadership had falsified records causing her discharge, her experience also does not outweigh her 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 6 Oct 21 for comment (Exhibit E), but has received no response.

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 finds no evidence her leadership falsified documents and it appears the discharge was consistent with the substantive requirements of the discharge regulation and was within the commander’s discretion.  The Board concurs with the rationale of the AFRBA Psychological Advisor and finds insufficient evidence to support the requested changes under liberal consideration in that her condition or experience does not excuse or mitigate the derogatory documents in her military records, nor the RE code assigned.  In the interest of justice, the Board considered her request based on fundamental fairness; however, given the evidence presented, 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-2021-00678 in Executive Session on 27 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 18 Mar 21.
Exhibit B:	Documentary Evidence, including relevant excerpts from official records.
Exhibit C:	Letter, SAF/MRBC, w/atch (Liberal Consideration Guidance), dated 5 Jun 21.
Exhibit D:	Advisory Opinion, AFRBA Psychological Advisor, dated 22 Jul 21.
Exhibit E:	Notification of Advisory, SAF/MRBC to Applicant, dated 6 Oct 21.
Exhibit F:	Letter, SAF/MRBC, w/atch (Post-Service Request), dated 6 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-2021-00678.