RECORD OF PROCEEDINGS

IN THE MATTER OF:	DOCKET NUMBER: BC-2021-00752

xxxxxxxxxxxxxxxx	COUNSEL: NONE

	HEARING REQUESTED: NO	

APPLICANT’S REQUEST

His DD Form 214, Certificate of Release or Discharge from Active Duty, be corrected as follows:

a.  His reentry (RE) code of “4H,” which denotes “Serving suspended punishment pursuant to Article 15, Uniform Code of Military Justice (UCMJ)” be changed to a more favorable code.

b.  His separation program designator (SPD) code of “JFX” and corresponding narrative reason for separation be changed from “Conditions that Interfere with Military Service-Not Disability-Character and Behavior Disorder” to a medical separation.

APPLICANT’S CONTENTIONS

He should have been medically separated due to a mental health disorder which he was given a Department of Veterans Affairs (DVA) disability rating in 2017.  

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 17 Apr 91, 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 5-11i for a character and behavior disorder.  The specific reasons for the action were:

a.	On 28 Nov 90, a No-Show Letter was issued indicating the applicant failed to report for Combat Arms training.
	
b.	On 3 Dec 90, Letter of Reprimand (LOR) was issued for failure to report for duty.

c.	On 13 Dec 90, a Memorandum for Record (MFR) indicates the applicant was counseled concerning his difficulties with his financial problems.

d.	Dated 29 Mar 91, a letter from the Mental Health Clinic indicates a mental health evaluation was conducted and recommended the applicant be administratively discharged for a character and behavior disorder.  The evaluation noted there is currently no evidence of a mental defect, emotional illness, or psychiatric disorder to warrant disposition through military medical channels but noted the applicant suffered from a personality disorder that was of a significant magnitude to significantly impair adjustment to military standards.

a.	On 4 Apr 91, AF Form 3070, Record of Nonjudicial Punishment Proceedings, indicates the applicant received nonjudicial punishment, Article 15 for failure to obey an order restricting contact with his wife.  He received a reduction in grade to airman (E-2), suspended until 3 Oct 91, and 30 days of extra duty.

On 24 Apr 91, the Staff Judge Advocate found the discharge action legally sufficient.

On 29 Apr 91, the discharge authority directed the applicant be discharged for a character and behavior disorder, with an honorable service characterization.

On 1 May 91, the applicant received an honorable discharge.  His narrative reason for separation is “Conditions that Interfere with Military Service-Not Disability-Character and Behavior Disorder” and he was credited with 1 year, 11 months, and 1 day of total active service.

For more information, see the excerpt of the applicant’s record at Exhibit B and the advisories at Exhibits D, E, and F.

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

AIR FORCE EVALUATION

AFPC/DP2SSR recommends denying the applicant’s request to change his the narrative reason for separation and corresponding SPD code finding no error or injustice in the discharge processing.  The commander provided ample evidence to the Base Separations Authority (BSA) to support separation.  The BSA received documentation from competent medical authorities indicating that the applicant had a condition that interfered with further military service.  The BSA directed the discharge as a result of the information received by the medical authority.

The complete advisory opinion is at Exhibit D.

AFPC/DP2SSM recommends denying the applicant’s request for a favorable change to his RE code but does recommend changing the applicant’s RE code to “2C” which denotes “Involuntarily separated under AFR 39-10 with an honorable discharge; or entry level separation without characterization of service.”  The applicant was discharged with a narrative reason for separation of “Conditions that Interfere with Military Service – Not Disability – Character and Behavior Disorder” on 1 May 91 with an honorable character of service after serving 1 year, 11 months, and 1 day of service.  He received an erroneous RE code of “4H” which denotes “Received or undergoing punishment, suspended or unsuspended, pursuant to Article 15 UCMJ action” on his DD Form 214.  Per AFR 35-16, USAF Reenlistment, Retention, and NCO Status Programs, Table 6.2, Item 3, his correct RE code should be “2C” which denotes “Involuntarily separated under AFR 39-10 with an honorable discharge; or entry level separation without characterization of service,” based on his involuntary discharge with an honorable character of service.  The RE code “2C” applies in this case as 2# series RE codes have priority over 1#, 3#, and 4# RE codes if more than one RE code applies.  Although the applicant was serving a suspended punishment under Article 15 at the time of separation, his RE code should have been updated to reflect RE code “2C” once his involuntary separation with honorable character of service was approved.

The complete advisory opinion is at Exhibit E.

The AFRBA Psychological Advisor completed a review of all available records and finds insufficient evidence to support the desired changes to the applicant’s records.  The applicant provided no contention or explanation regarding his mental health condition, discharge, and the reasons for his desired changes.  He stated his medical file says the military was responsible for his conditions and he was given DVA compensation in 2017.  He did not provide any records to substantiate any of his claims or for the condition(s) he was given DVA compensation.  A review of all available records finds the applicant has not met the burden of proof to support his requests.  His service treatment records revealed he had marital problems, difficulties adjusting to the military standards, financial problems, anger outbursts, and traits of a personality disorder.  None of these conditions or issues were caused by his military duties and no evidence the military was responsible for any of these conditions or problems.  There was evidence he had traits of a personality disorder prior to service due to having conduct issues of being unable to follow rules and structures as early as in the 7th grade.  There was no evidence his military service permanently aggravated his pre-existing conduct issues and mental health condition.  He was discharged for having an unsuiting personality disorder, and this psychological advisor finds his personality disorder diagnosis was appropriate and valid based on his clinical presentation at the snapshot in time of service.  He was evaluated by two different providers during service and both providers agreed it was his personality disorder traits that caused his behaviors and impairing his functioning leading to his discharge. Unsuiting conditions result in a non-compensable, administrative discharge and there was no evidence he had any unfitting mental health conditions that would qualify for a potential compensable medical discharge. The applicant did not submit any evidence or made contentions that his personality disorder diagnosis and discharge were made in error.  Therefore, this psychological advisor finds no error or injustice with his discharge.  The Board may elect to apply liberal consideration to the applicant’s request due to his contention of a mental health condition, however, there is no error identified with the applicant’s administrative discharge for his valid personality disorder; his condition does not outweigh his original discharge. There is also no evidence he any unfitting mental health conditions meeting criteria for a medical discharge or that would outweigh his administrative discharge.

Liberal consideration was applied to the applicant’s request due to the applicant’s contention of a mental health condition.  The following are responses based on the available records to the four questions in the policy:

1.  Did the veteran have a condition or experience that may excuse or mitigate the discharge?
The applicant reported his medical files stated the military was responsible for his conditions and he was given DVA compensation in 2017.

2.  Did the condition exist or experience occur during military service?
There is evidence the applicant received two mental health evaluations during service due to his behavioral and conduct problems.  Results of his evaluations found he was given diagnoses of Adjustment Disorder with Mixed Disturbance of Emotions and Conflict, Personality Disorder NOS with antisocial, dependent, and immature features and a condition (not diagnosis) of Marital Problem.

3.  Does the condition or experience excuse or mitigate the discharge?
The applicant’s personality disorder was found to be the primary condition affecting his behaviors, was unsuiting for continued service, and was the cause and reason for his discharge.  This diagnosis was found to be valid and there was no error or injustice identified with his discharge from service.  Therefore, his mental health condition does not excuse or mitigate his discharge.

4.  Does the condition or experience outweigh the discharge?
There is no error identified with the applicant’s administrative discharge for his valid personality disorder; his condition does not outweigh his original discharge.  There is also no evidence he had any unfitting mental health conditions meeting criteria for a medical discharge and would also not outweigh his administrative discharge.  

The complete advisory opinion is at Exhibit F.

APPLICANT’S REVIEW OF AIR FORCE EVALUATION

The Board sent a copy of the advisory opinion to the applicant on 27 Jan 22 for comment (Exhibit G), but has received no response.

FINDINGS AND CONCLUSION

1.  The application was not 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 concurs with the rationale and recommendation of offices of primary responsibility and finds a preponderance of the evidence does not substantiate the applicant’s contentions.  Specifically, there is no error identified with the applicant’s administrative discharge for his valid personality disorder; his condition does not outweigh his original discharge. There is also no evidence he had any unfitting mental health conditions meeting criteria for a medical discharge.  His narrative reason for separation and corresponding separation code are correct for the type of discharge he received.  The Board did find an error in his RE code which was administratively corrected. Lastly, the Board is satisfied that the application of liberal consideration does not warrant relief.  The Board also notes the applicant did not file the application within three years of discovering the alleged error or injustice, as required by Section 1552 of Title 10, United States Code, and Air Force Instruction 36-2603, Air Force Board for Correction of Military Records (AFBCMR).  While the applicant asserts a date of discovery within the three-year limit, the Board does not find the assertion supported by a preponderance of the evidence.  The Board does not find it in the interest of justice to waive the three-year filing requirement.  Therefore, the Board finds the application untimely and recommends against correcting the applicant’s records.

RECOMMENDATION

The Board recommends informing the applicant the application was not timely filed; it would not be in the interest of justice to excuse the delay; 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-2021-00752 in Executive Session on 21 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, dated 5 Oct 20.
Exhibit B:	Documentary evidence, including relevant excerpts from official records.
Exhibit C: Letter, SAF/MRBC, w/atchs (Liberal Consideration Guidance), dated 8 Jun 
		21.
Exhibit D:	Advisory Opinion, AFPC/DP2SSR, dated 9 Jun 21.
Exhibit E:	Advisory Opinion, AFPC/DP22SSM, dated 29 Jun 21.
Exhibit F:	Advisory Opinion, AFBCMR Psychological Advisor, dated 1 Sep 21.
Exhibit G:	Notification of Advisory, SAF/MRBC to Applicant, dated 27 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.