RECORD OF PROCEEDINGS

IN THE MATTER OF:		DOCKET NUMBER: BC-2021-01299

	COUNSEL: YES
	
	HEARING REQUESTED: YES

APPLICANT’S REQUEST

Her general (under honorable conditions) discharge be upgraded to honorable, her narrative reason for separation be changed to “Secretarial Authority” or “Miscellaneous/General Reasons,” and her reentry code be changed to “RE-1”.

APPLICANT’S CONTENTIONS

She received a general discharge for several instances of misconduct which were a result of an alcohol abuse problem.  She used alcohol to cope with her depression, anxiety and post-traumatic stress disorder (PTSD), all of which were a direct result of two military sexual traumas (MST).  It is fair and just that her discharge characterization be upgraded to honorable based on the military’s recent policy change to provide liberal consideration to victims of MST and PTSD sufferers.  The discharge upgrade will allow her benefits such as the GI Bill.

The applicant’s complete submission is at Exhibit A.

STATEMENT OF FACTS

The applicant is a former Air Force airman (E-2).

On 25 Feb 10, the applicant’s commander recommended the applicant be discharged from the Air Force, under the provisions of AFPD 36-32, Military Retirements and Separations, and AFI 36-3208, Administrative Separation of Airmen, chapter 5, section H, paragraph 549, for misconduct based on minor disciplinary infractions.  The specific reasons for the action were:

	a. On 20 May 09, she failed to be obey a lawful order by wrongfully consuming alcoholic beverages while under the age of 21.  As a result, she received an Article 15.
	
	b. On 23 Sep 09, while intoxicated, she attempted to cook food in a microwave oven and passed out due to excessive alcohol consumption.  Her action led to the microwave catching fire, resulting in damage to government property and the endangerment of the lives of her fellow dormitory members.  As a result, she received a Letter of Reprimand (LOR).

c. On 13 Dec 09, she did unlawfully strike a non-commissioned officer (NCO) on the face with her hand.  As a result, she received an Article 15.

On 1 Mar 10, the Deputy Staff Judge Advocate found the discharge action legally sufficient.

On 2 Mar 10, the discharge authority directed the applicant be discharged for misconduct based on minor disciplinary infractions, with an under honorable conditions (general) service characterization.  Probation and rehabilitation was considered, but not offered.

On 12 Mar 10, the applicant received an under honorable conditions (general) discharge with a narrative reason for separation of misconduct (minor infractions) and was credited with 4 years, 2 months and 3 days of active service..

On 17 Mar 17, the applicant submitted a request to the Air Force Discharge Review Board (AFDRB) for an upgrade to her discharge and a change to her narrative reason for discharge.

On 5 Sep 18, the AFDRB unanimously denied the applicant’s request.  The Board considered the case based on the liberal consideration standards and found insufficient evidence of an inequity or impropriety that would warrant the change.

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

POST-SERVICE INFORMATION

On 12 Oct 21, the Board sent the applicant a request for post-service information and advised the applicant her request may also be considered on the basis of clemency and if she elected consideration under clemency, she was required to provide a Federal Bureau of Investigation (FBI) Identity History Summary Check, which would indicate whether or not she 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 D).  The applicant replied on 4 Nov 21 and provided an FBI report.  According to the report, the applicant has had no arrests since discharge.  The applicant also provided a personal statement, military records, character statements, and a Department of Veterans Affairs (DVA) disability letter.

The applicant’s complete response is at Exhibit 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 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 12 Oct 21, Board staff provided the applicant a copy of the liberal consideration 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.

AIR FORCE EVALUATION

The AFRBA Psychological Advisor finds insufficient evidence to support the applicant’s request for the desired changes to her records.  Liberal consideration is applied to the applicant’s petition due to her experiences of sexual assault/MST.  The veracity of the applicant’s sexual assault/MST experiences are not in question, but it is whether the residual effects or aftermath of these experiences affected her functioning that would warrant the desired changes to her records?  The psychological advisor finds insufficient evidence to support this latter notion.  The contention of her first sexual assault/MST experience in Mar 09 may have caused her to cope with alcohol leading to all of her documented misconduct as plausible and compelling, but the serious consequences of her misconduct could not be excused especially when her behaviors have caused harm to others.  The applicant’s second sexual assault in Feb 10 had no direct impact on her discharge, as she was already cited for a predated pattern of misconduct that caused her imminent discharge.

Liberal consideration is applied to the applicant’s petition due to her experiences of sexual assault/MST.  The following are responses based on information presented in the 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 and her legal counsel contend she was sexually assaulted twice during service and drank alcohol to cope with her traumatic experiences causing her misconduct, disciplinary actions and discharge.

2. Did the condition exist or experience occur during military service?  There is no evidence the applicant reported she was sexually assaulted during military service. It was almost immediately after she was discharged that a friend, who was an airman, had reported her sexual assaults to OSI.  After the report was made, the applicant disclosed her sexual assaults occurring in Mar or Apr 09 and Feb 10 to OSI.  There is evidence the applicant was command referred to ADAPT twice following her alcohol related incidents indicating she was possibly drinking to cope with at least her first sexual assault/MST experience as contended.

3. Does the condition or experience excuse or mitigate the discharge?  The applicant’s first sexual assault/MST experience may have caused her to drink to cope with her traumatic experience, which in turn, resulted with her behaviors and misconduct.  Although her drinking issues may have been caused by her sexual assault/MST experience, her condition or experience does not excuse or mitigate her discharge.  The applicant’s behaviors had inflicted harm to an NCO and caused safety concerns to other airmen in her dorm.

4. Does the condition or experience outweigh the discharge?  Although her first sexual assault/MST experience may have caused her subsequent behaviors and misconduct, her condition or experience does not outweigh her discharge.  The harmful consequences of her behaviors could not be excused or unheeded.

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 18 Nov 21 for comment (Exhibit G), and the applicant replied on 17 Dec 21.  In her response and through counsel, the applicant disputes the advisor’s erroneous conclusion and reiterates her contention that her application warrants an upgrade under the “liberal” and “special” consideration standard mandated by the Hagel and Kurta memoranda and her request should be granted on justice and equity grounds based on the totality of her service record, her life and circumstances, and extenuating factors that affected her ability to serve.

The applicant’s complete response is at Exhibit H.

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 rationale of the AFRBA Psychological Advisor finding insufficient evidence to support a change to her discharge.  While the Board is sensitive with what the applicant endured, the Board agrees with the Psychological advisor in that the serious consequences of her misconduct could not be excused especially when her behaviors have caused harm to others.  The Board looked at the applicant’s request under the lens of liberal consideration; however, based on the evidence, found that her condition or experience does not excuse or mitigate her misconduct nor her discharge.  Furthermore, 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 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-2021-01299 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 4 Feb 21.
Exhibit B:	Documentary Evidence, including relevant excerpts from official records.
Exhibit C:	Letter, SAF/MRBC, w/atch (Liberal Consideration Guidance), 
		dated 12 Oct 21.
Exhibit D:	Letter, SAF/MRBC, w/atch (Post-Service Request), dated 12 Oct 21.
Exhibit E:	Advisory Opinion, AFRBA Psychological Advisor, dated 13 Oct 21.
Exhibit F: FBI Report, w/atchs, dated 4 Nov 21.
Exhibit G:	Notification of Advisory, SAF/MRBC to Applicant, dated 18 Nov 21.
Exhibit H:	Applicant’s Response to Advisory, w/atchs, dated 17 Dec 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-2021-01299.