RECORD OF PROCEEDINGS

IN THE MATTER OF:	DOCKET NUMBER: BC-2021-01456

XXXXXXXXXXXXX	COUNSEL: NONE
	
	HEARING REQUESTED: NO	

APPLICANT’S REQUEST

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

APPLICANT’S CONTENTIONS

His discharge was an injustice because of his mental capacity.  The Department of Veterans Affairs (DVA) diagnosed him with Post-Traumatic Stress Disorder (PTSD).  He would not have received a general discharge under current policies.  Upgrading his discharge to honorable makes him eligible for educational benefits.

The applicant’s complete submission is at Exhibit A.

STATEMENT OF FACTS

The applicant is a former Air Force senior airman (E-4).

On 23 Nov 87, the applicant was notified of his commander's intent to recommend he be discharged from the Air Force under the provisions AFR 39-10, Administrative Separation of Airman, for Misconduct - Drug Abuse.  The applicant was informed the action would result in his separation with a general (under honorable conditions) discharge and if discharged he would be ineligible to reenlist in the Air Force.  The specific reasons for the action were:

a.	The applicant was convicted for cultivation of marijuana and entering into a diversionary program as evidenced by a Police Report, dated 31 Aug 87, County Criminal Complaint, dated 9 Sep 87, and Diversion Program Memo, dated 30 Sep 87.

On 12 May 88, an administrative discharge board convened and recommended the applicant be given a general discharge with probation and rehabilitation.

On 14 Jul 88, the staff judge advocate (SJA) reviewed the administrative discharge board action and found the evidence of record legally sufficient to support the findings and recommendations of the discharge board.  The SJA did not concur with the discharge’s board’s recommendation of probation and rehabilitation. 

On 22 Jul 88, the discharge authority directed the applicant be discharged for Misconduct, with a general (under honorable conditions) service characterization without the offer of probation and rehabilitation.  

On 25 Jul 88, the applicant received a general (under honorable conditions) discharge.  His narrative reason for separation is “Misconduct - Drug Abuse” and he was credited with 3 years, 2 months, and 12 days of total active service.

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

POST-SERVICE INFORMATION

On 8 Jun 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); however, he 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 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).

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 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 received a general (under honorable conditions) discharge for cultivating marijuana in his backyard and admission of possession of marijuana to authorities.  After being convicted, the applicant was placed in a substance abuse treatment diversion program.  Once completing this program, the charges were dropped.  An Administrative Discharge Board deliberated the discharge.  During this hearing, the applicant recanted his statement for possession of marijuana and stated that the cultivated marijuana was his wife’s.  He initially stated that the marijuana plants were his because he did not want his wife getting arrested and their daughter being taken away.  He admitted to exercising poor judgment for not contacting authorities when he discovered the marijuana plants growing in his backyard.  The applicant believes his poor judgment was a result of his mental capacity but never mentioned any type of mental condition to the board.  The Administrative Discharge Board recommended the applicant receive a general discharge with probation and rehabilitation.  The applicant submitted a decision letter from the DVA proclaiming he was granted 70 percent rating for PTSD effective 20 Dec 17. The DVA treatment records show that he completed an intake for mental health treatment on 6 Apr 10, for having chronic back pain from a motor vehicle accident which caused him the inability to work which resulted in financial problems.  There are no records or evidence to support that the applicant received treatment for a mental health issue while enlisted in the military.  There is insufficient evidence to support an error or injustice.

Liberal consideration is applied is applied to the applicant’s request. 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 his general discharge was an injustice because of his mental capacity.  He reported he had been diagnosed and received treatment for PTSD post-service.  The applicant provided no explanation about how his mental health condition affected his behaviors during service and discharge.

2.	Did the condition exist or experience occur during military service? 

There is no evidence the applicant had any mental health conditions to include PTSD during military service.  There are no service treatment records available or submitted by the applicant for review to determine if he experienced PTSD or PTSD-like conditions during military service.

3.	Does the condition or experience excuse or mitigate the discharge?
Since there is no evidence he had any mental health conditions during service and no explanation of how his mental health condition caused his behaviors, his condition does not excuse or mitigate his discharge.

4.	Does the condition or experience outweighs the discharge?
Since there is no evidence he had any mental health conditions to include PTSD during service, his condition does not outweigh his original discharge.

The complete advisory opinion is at Exhibit D.

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 E), 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 review and rationale of the AFRBA Psychological Advisor and 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 fundamental fairness; 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.  Therefore, 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-2021-01456 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, w/atchs, dated 17 Nov 20.
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 8 Jun 21.
Exhibit D:	Advisory Opinion, AFRBA Psychological Advisor, dated 6 Oct 21.
Exhibit E:	Notification of Advisory, SAF/MRBC to Applicant, dated 21 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.