RECORD OF PROCEEDINGS

IN THE MATTER OF:				DOCKET NUMBER: BC-2021-01135

XXXXXXXX						COUNSEL: NONE
	
							HEARING REQUESTED: NO 

APPLICANT’S REQUEST

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

APPLICANT’S CONTENTIONS

The Department of Veterans Affairs diagnosed him with a service connected mental disability, which had an impact on his general (under honorable conditions) discharge.

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 8 Oct 96, the applicant’s commander recommended he be discharged from the Air Force, under the provisions of AFI 36-3208, Administrative Separation of Airmen, for Discreditable Involvement with Military or Civilian Authorities.  The specific reason for the action was between the period 13 Apr 94 and 6 Oct 96, the applicant was issued seven AF Forms 174, Record of Individual Counseling, several insufficient fund notifications, one letter of admonishment, and one letter of reprimand, with establishment of an unfavorable information file.
	
On 13 Nov 96, the wing Deputy Staff Judge Advocate found the discharge action legally sufficient and recommended the applicant receive a general discharge without probation and rehabilitation.

On 14 Nov 96, the discharge authority concurred with the recommendation and directed the applicant be discharged for Discreditable Involvement with Military or Civil Authorities, with an under honorable (General) service characterization.  Probation and rehabilitation was considered, but not offered.

On 20 Nov 96, the applicant received an under honorable conditions (General) discharge. His narrative reason for separation is “Pattern of Misconduct” and he was credited with 3 years and 9 days of total active service.

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

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 (Kurta Memo) 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 25 May 21, Board staff provided the applicant a copy of the liberal consideration guidance (Exhibit C).

POST-SERVICE INFORMATION

On 25 May 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, 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 5 Jun 21 and provided an FBI report.  According to the report, the applicant has had no arrests since his discharge.

The applicant’s complete response is at Exhibit D.

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 applicant contends he had been diagnosed with a service connected disability of anxiety and depression which had a direct impact on his discharge. While serving, the applicant engaged in multiple minor and serious acts of misconduct. Once presented to the Discharge Review Board, they found that his discharge for misconduct was consistent with the procedural and substantive requirements of the discharge regulation. The applicant's service treatment records were not available for review nor did the applicant provide them. Without the review of the records, the Psychological Advisor was unable to render an opinion regarding whether his mental health condition could cause or mitigate all, some, or none of his misconduct. Post discharge, the applicant did receive mental health treatment from the Department of Veterans Affairs, the records were insufficient to establish a connection between his mental health condition and misconduct that led to his discharge. Thus, the presumption of regularity is applied that there was no error or injustice identified with his discharge.

The Board may elect to apply liberal consideration to the applicant’s request. The following are answers to the four pertinent questions from the liberal consideration 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 had anxiety and depression during service that had a direct impact to his discharge.

2.  Did the condition exist or experience occur during military service?  The applicant’s service treatment records are not available for review and so there is no objective evidence to substantiate his reported condition of anxiety and depression had existed or occurred during military service. He informed his Department of Veterans Affairs provider he had depression and drinking issues during service.

3.  Does the condition or experience excuse or mitigate the discharge?  The applicant reported he had anxiety and depression during service but did not submit any records or provide any clarifying information to substantiate his claim. Therefore, his mental health condition or experience does not excuse or mitigate his discharge.

4.  Does the condition or experience outweigh the discharge?  Since there is no evidence the applicant’s mental health condition or experience had excused or mitigated his discharge, his condition or experience also does not outweigh his original 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 31 Jan 22, for comment (Exhibit F), 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.  The Board concurs with the opinion of the AFRBA Psychological Advisor that there is insufficient evidence the applicant had a mental health condition during his military service that would be considered a mitigating factor for the misconduct that caused his discharge.  Therefore, the Board finds a preponderance of the evidence does not substantiate the applicant’s contentions.  In the interest of justice, the Board considered upgrading the discharge based on an injustice; however, given the evidence presented, the Board finds no basis to do so.  Finally, the Board is satisfied that the application of liberal consideration does not warrant relief.  In view of the forgoing, the Board recommends against correcting the applicant’s record.

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-2021-01135 in Executive Session on 17 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 24 Jan 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 25 May 21.
Exhibit D: FBI Report, dated, 5 Jun 21.
Exhibit E: Advisory Opinion, AFRBA Psychological Advisor, dated 29 Sep 21.
Exhibit F: Notification of Advisory, SAF/MRBC to Applicant, dated 31 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.