RECORD OF PROCEEDINGS

IN THE MATTER OF:	DOCKET NUMBER: BC-2021-01989

xxxxxxxxxxxxxx	COUNSEL: NONE
(MEMBER)

XXXXXXXXXXXXXX	HEARING REQUESTED: YES
(APPLICANT)

APPLICANT’S REQUEST

1.  The service member’s general (under honorable conditions) discharge be upgraded to honorable.

2.    The service member be given a medical retirement for Multiple Sclerosis (MS) at a 90 percent disability rating.

APPLICANT’S CONTENTIONS

She contends the service member was due to be medically retired on 3 Aug 20 but was extended, punished, and released under a general discharge on 17 Sep 20. His mental state was not considered at the time of his discharge as his command did not believe he was having neurological symptoms.  He was severely depressed due to being diagnosed with MS in October 2019 and willingly took a Tetrahydrocannabinol (THC) gummy one time due to his depression.  He was reported to have been guilty of lying and believed he was unjustly punished and experienced racial injustice causing his discharge. 

In support of the service member’s request for clemency, character reference letters, medical records, Department of Veterans Affairs (DVA) Disability Rating, and racial bias articles are provided.

The service member and the applicant’s complete submission is at Exhibits A and E.

STATEMENT OF FACTS

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

On 28 Apr 20, the DVA proposed a disability rating for the service members Category 1 unfitting medical conditions of difficulty urinating secondary to MS at 40 percent; right upper radicular group radiculopathy, polyneuropathy secondary to MS at 40 percent; left upper radicular group radiculopathy, polyneuropathy secondary to MS at 30 percent; thoracic region impairment secondary to MS with polyneuropathy at 20 percent; cervical spine impairment secondary to MS with polyneuropathy at 20 percent;  and right and left lower extremity sciatic nerve radiculopathy, secondary to MS at 20 percent each.

On 6 May 20, AF IMT 618, Medical Board Report, indicates the service member was referred to the Informal Physical Evaluation Board (IPEB) for MS.

On 12 May 20, AF Form 356, Informal Findings and Recommended Disposition of USAF Physical Evaluation Board, indicates the service member was found unfit due to his medical conditions of MS, right and left upper radicular group radiculopathy, thoracic region impairment, cervical spine impairment, and right and left lower extremity sciatic nerve radiculopathy with a combined disability compensation rating of 90 percent with a recommendation of “Permanent Retirement.” 

On 13 May 20, AF Form 1180, Action on Physical Evaluation Board Findings and Recommended Disposition, indicates the service member agreed with the findings and recommended disposition of the board.

Dated 20 May 20, Special Order XXXXXX, indicates the service member was permanently disability retired in the grade of senior airman with a compensable percentage for physical disability of 90 percent, effective 4 Aug 20.

Dated 26 Jun 20, Special Order XXXXXXX, indicates Special Order XXXXX relating to the service member’s permanent retirement was rescinded.  The specific reason was to allow further processing.

On 5 Aug 20, the service member’s commander recommended he be discharged from the Air Force, under the provisions of AFI 36-3208, Administrative Separation of Airmen, paragraph 5.54. for drug abuse.  The specific reasons for the action were:

a.	On 11 Jan 18, Letter of Counseling (LOC) was issued for disobeying a direct order.

b.	On 9 Jul 18, LOC issued for failure to maintain a neat, orderly, and clean dorm room.

c.	On 10 Apr 19, Letter of Reprimand (LOR) was issued for underage drinking and an Unfavorable Information File (UIF) was established.

d.	On 30 Apr 19, LOC issued for disobeying a direct order.

e.	On 3 Jun 19, LOR issued for failure to go.

f.	On 27 Sep 19, LOC issued for failure to meet minimum fitness standards.

g.	On 1 Jun 20, LOC issued for violation of travel order restrictions.

h.	On 11 Jun 20, AF Form 3070, Record of Nonjudicial Punishment Proceedings, indicates the service member received nonjudicial punishment, Article 15 for wrongful use of THC.  He received a reduction in grade to airman first class (E-3), suspended until 2 Aug 20, and forfeiture of $1,151.00 pay per month, for 2 months.

On 4 Sep 20, the Air Force Medical Retention Standards Office (AFPC/DP2NP) did not recommend dual action processing and recommended the service member be ineligible for the DES, finding no connection between the member’s use of marijuana and his MS.

On 14 Sep 20, the Staff Judge Advocate found the discharge action legally sufficient.  On this same date, the discharge authority directed the service member be discharged for drug abuse, with a general service characterization.  Probation and rehabilitation was not considered.  A review of both the administrative discharge case and the medical disability case for separation using prescribed dual processing procedures was followed finding no connection between the service member’s marijuana use and his medical condition.

On 17 Sep 20, the service member received a general (under honorable conditions) discharge.  His narrative reason for separation is “Misconduct (Drug Abuse)” and he was credited with three years, eight months, and eight days of total active service.

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

POST-SERVICE INFORMATION

On 25 Oct 21, the Board sent the service member a request for post-service information and advised 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 service member could provide proof of employment in which background checks are part of the hiring process (Exhibit C).  The service member replied on 17 Nov 21 and provided an FBI report.  According to the report, he has had no arrests since his discharge.

The service member’s complete response is 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 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 25 Oct 21, Board staff provided the service member 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 sufficient evidence to support the desired changes to the applicant’s records based on his mental health contention.  The service member consistently denied he had knowingly ingested THC laced gummy worms during service in response to his Article 15 disciplinary action and to his ADAPT provider.  His friend also submitted a letter to substantiate the report stating the service member did not know he ingested the substance.  The service member is now claiming he lied because he was scared and was mentally going through a lot.  This psychological advisor finds this explanation conceivable as there was evidence he began to receive voluntary mental health treatment on 9 Mar 20, about two months prior to his positive Urine Analysis (UA) for THC.  The service member’s service treatment records reported he became severely depressed after learning about his MS diagnosis in Oct 19.  He would have sleep problems, feeling hopeless and helpless, isolated himself from others, have poor memory and concentration, excessive worry about his future, racing thoughts, agitation, and decreased interest.  His emotional distress and reaction are common among individuals with a debilitating disease and especially to those individuals who had been newly diagnosed and having to come to terms and adjust to the condition/disease.  The service member carried an active diagnosis of Major Depressive Disorder with a specifier of “Severe without Psychotic Features” at the time of the incident.  Thus, it was possible his judgment was impaired due to his severe depression when he took the substance.  This psychological advisor concedes it is difficult to determine which version of events was more accurate and truthful as the service member’s present contention was negated by his military records.  Nevertheless, this psychological advisor does find the service member’s report of his substance use was a one-time occurrence as credible because his DVA treatment records reported the service member does not use any substances to include THC/marijuana and alcohol post service. Given the service member’s circumstances and nature of his mental health condition caused by his devastating physical condition, this psychological advisor opines at least as likely as not, his ingestion of THC edibles was possibly caused by his mental health condition due to the aforementioned reasons discussed.  This psychological advisor recognizes the service member had other misconduct issues besides THC use during service, but these other misconduct issues had occurred prior to his drug use and his commander never initiated administrative discharge action for him until his drug use.  His commander stated his drug use was the reason for discharge action in the Notification Memorandum and the other listed misconduct were merely used for consideration for his discharge and characterization.  

The applicant is also contending the service member’s administrative discharge was caused by racial discrimination. This psychological advisor finds no evidence in the service member’s objective military file to support this claim. This psychological advisor has identified a procedural error with his discharge process.  There was evidence the service member was being processed through the Disability Evaluation System (DES) for MS at the time of his misconduct, the IPEB had found his condition was unfitting, and he had received retirement orders a few weeks after the incident indicating his Medical Evaluation Board/DES had been completed.  The service member’s retirement orders were cancelled because his leadership initiated administrative discharge action months after his orders were published for his drug use.  In this type of situation, a dual action case is required under AFI 36-2308 to be adjudicated by the Secretary of the Air Force Personnel Counsel (SAFPC), and there was no evidence a dual action case was processed for the service member.  Hypothetically, if SAFPC had adjudicated this case, they would most likely find the severity of the service member’s physical condition of MS rated at 90 percent by the IPEB would outweigh his one-time drug use of THC based on historical voting trends.  THC is a serious substance but is not as serious as other hard drugs such as cocaine, heroin, methamphetamine, etc. and he was not a habitual user.  

Although there is inconsistent reports from the service member, it is however, conceivable he knowingly ingested THC due to having severe depression.  There is ample evidence in his military records reflecting he was severely depressed following his MS diagnosis.  His circumstances and emotional reactions are rather common to individuals in similar situations with debilitating diseases.  His judgment was also most likely impaired due to his conditions causing his behavior/misconduct.  Although a dual action case was never processed for the service member, this psychological advisor opines the severity of his physical and mental health condition at the snapshot in time of service would excuse, mitigate, and outweigh his one-time drug use of THC.

Liberal consideration was applied to the applicant’s request due to the applicant’s contention of a mental health condition.  The following are answers to the four questions from the Kurta memorandum/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 was severely depressed due to being diagnosed with MS and willingly ingested the gummies contained with THC due to depression.  He reported being scared and under mental distress when he lied about his drug use during service.

2.  Did the condition exist or experience occur during military service?
The applicant denied during service he knowingly ingested THC infused gummies.  There is evidence in his medical records the applicant was diagnosed with MS in Oct 19 and reported feeling severely depressed following his MS diagnosis during military service.  He was given a diagnosis of Major Depressive Disorder, Single Episode, Severe without Psychotic Features by his military provider two months prior to his drug use.  

3.  Does the condition or experience excuse or mitigate the discharge?  
Although there is inconsistent reports from the applicant, it is however, conceivable the applicant knowingly ingested THC due to having severe depression.  There is ample evidence in his military records reflecting he was severely depressed following his MS diagnosis.  His circumstances and emotional reactions are rather common to individuals in similar situations with debilitating diseases.  His judgment was also most likely impaired due to his conditions causing his behavior/misconduct.  Therefore, this psychological advisor finds his mental health condition caused by his physical condition may excuse and mitigate his discharge.

4.  Does the condition or experience outweigh the discharge?
Although a dual action case was never processed for the applicant, this psychology opines the severity of the applicant’s physical and mental health condition at the snapshot in time of service would outweigh his one-time drug use of THC.  His mental health condition would also outweigh his original discharge.

The complete advisory opinion is at Exhibit E.

AFPC/JA recommends granting the application.  The service member was diagnosed with a terminal medical condition, MS, in Oct 19.  He reported that some effects of the disease included severe pain and incontinence to the point where he required “diapers.” Moreover, the service member relayed that as a result of his MS diagnosis (along with the pain and prognosis resulting therefrom) caused him to become severely depressed. Therefore, the question for the Board is whether the one-time use of marijuana outweighs the medical retirement the service member had been awarded prior to the drug use. We find the answer to be “NO” for the following reasons: 1) had the service member’s case been processed for the seven (7) retention criteria, he likely would have been retained; and 2) the severity of the member’s diagnosis (and prognosis), combined with the long term-care needed to support the service member, meets the “matter of equity or good conscience” standard.  First, a review of the service member’s file suggest that had the discharge been reviewed for retention, he would have meet the 7 retention criteria. However, at the time of discharge, the member continued to maintain that he was unaware the gummy candy he consumed contained THC.  Unfortunately, this assertion rendered the discharge ineligible for a retention analysis as the 7 criteria is predicated on the assumption that a member knowingly consumed illegal drugs.  However, as the BCMR allows for a full review of the member’s case to determine equity and injustice, the retention analysis will be provided as follows: AFI 36-3208, paragraph 5.54.4.2., lays out the following factors to be considered for retention: 1) Drug abuse is a departure from the member’s usual and customary behavior, 2) Drug abuse occurred as the result of drug experimentation, 3) Drug abuse does not involve recurring incidents, 4) The member does not desire to engage in or intend to engage in drug abuse in the future, 5) Drug abuse under all the circumstances is not likely to recur, 6) The member’s continued presence in the Air Force is consistent with the interest of the Air Force in maintaining proper discipline, good order, leadership, and morale and 7) Drug abuse did not involve drug distribution.  The service member now reports that his use of marijuana was a one-time occurrence as a result of his physical and mental pain resulting from his MS diagnosis.  A review of the service member’s record does not indicate any prior drug use pre-service or while on active duty.  Additionally, while he had other minor misconduct (i.e. not keeping a clean room, failing to go to a meeting, and violation of a quarters order) nothing indicates that drug use was part of the member’s behavioral pattern.  Moreover, given the unique circumstances of this case (i.e. member’s impending medical retirement and loss thereof) the member would likely not re-engage in drug abuse and thus it would likely not reoccur.  Lastly, given that the service member had already been given medical retirement orders, he would not have needed to overcome the bar of justifying “continued presence in the Air Force.” Therefore, after review of the service member’s discharge, we find that had his case been eligible for retention review, he likely would have met the 7 retention criteria.

Second, AFI 36-3212, Physical Evaluation for Retention, Retirement, and Separation, paragraph 1.7 states that members who are pending involuntary administrative discharge (where an under other than honorable conditions service characterization is authorized) will be referred into the DES, if it is warranted as a matter of equity or good conscience and or/there is clearly evident connection between an Airman’s medical diagnosis and the Airman’s conduct.  In the instant case, the service member was diagnosed with MS at 21 years old.  He was advised that at the time of diagnosis, he had lesions on his brain and spinal cord and would likely need an “aggressive” course of treatment.  Additionally, the service member reports that soon after his diagnosis, his bladder became compromised and as a result he was incontinent and needed to wear protective underwear.  The service member further reports that as a result of this diagnosis, and the toll it was taking on his body, he was soon diagnosed with Major Depressive Disorder.  In short, the service member reports that he was in a lot of pain, both physically and mentally, and believed that marijuana could provide some relief.  Both the service member, and this office, understand that using illegal drugs as a member of the Air Force is not condoned.  However, as with any other disciplinary action, it is important to take into account any mitigating circumstances that might help inform the member’s decisions.  In this case, we find it difficult to understand how the Air Force Medical Retention Standards Office (AFPC/DP2NP) and the separation authority found “no connection” between the members’ single use of marijuana and a debilitating terminal illness like MS.  Unfortunately, neither the recommendation from DP2NP nor the separation authority’s memorandum provided any analysis as to why they found no connection between the marijuana use and the MS diagnosis (or affects thereof).  While we understand that being diagnosed with MS does not cause a member to use illegal drugs, it is well within reason that a member may elect to experiment with marijuana in an effort to combat the effects of physical or mental illness or supplement prescription medicine to treat pain.  Moreover, and possibly more significantly, a member’s one time use of drugs should not, as matter of equity or good conscience, deprive the service member of the benefits and continued medical care afforded to someone in his medical position. As discussed above, even outside of the dual processing context, an objective review of the case file suggests that the service member would likely have met the 7 seven retention criteria needed to be retained if he had been forthcoming during the nonjudicial punishment and administrative discharge actions. Moreover, while it is important to discourage drug use for military members, an on-balance review of this case does not find any aggravating factors that would necessitate an administrative discharge vice a medical retirement.  Therefore, when evaluating the benefit to the service member of being allowed to medically retire, against a need to punish an Airmen for one time drug use, it seems overly harsh to deprive the service member of the medical, financial and educational benefits that would result from his medical retirement.  Therefore, because this office finds that member’s case would likely have meet the seven retention criteria (if the member had raised the facts now known through his BCMR request at the time), and there is reasonable inference to connect the one time drug use and the medical diagnosis, failing to reinstate the medical retirement would violate the principles of equity and good conscience.

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 service member on 15 Feb 22 for comment (Exhibit G), 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 service member is the victim of an error or injustice.  The Board concurs with the rationale and recommendations of the offices of primary responsibility and based on liberal consideration, finds a preponderance of the evidence substantiates the applicant’s contentions.  There is ample evidence in the service member’s military records reflecting he was severely depressed following his MS diagnosis.  His circumstances and emotional reactions are rather common to individuals in similar situations with debilitating diseases.  His judgment was also most likely impaired due to his conditions causing his behavior/misconduct.  Although a dual action case was never processed for the service member, the severity of his physical and mental health condition at the snapshot in time of service would excuse, mitigate, and outweigh his one-time drug use of THC. Therefore, the Board recommends correcting the service member’s records as indicated below.

4.  The applicant nor the service member has not shown a personal appearance, with or without counsel, would materially add to the Board’s understanding of the issues involved.

RECOMMENDATION

The pertinent military records of the Department of the Air Force relating to MEMBER be corrected to show the following:

a.  On 20 May 2020, he was found unfit to perform the duties of his office, rank, grade, or rating by reason of physical disability, incurred while he was entitled to receive basic pay; the diagnosis in his case was Multiple Sclerosis (VASRD code 7542), right and left upper radicular group radiculopathy (VASRD codes 8018-8710), thoracic region impairment (VASRD code 5237), cervical spine impairment (VASRD code 5237), and right and left lower extremity sciatic nerve radiculopathy (VASRD codes 8710-8720); with a combined disability rating of 90 percent; the degree of impairment was permanent; the disability was not due to intentional misconduct or willful neglect; the disability was not incurred during a period of unauthorized absence; and the disability was not as a direct result of armed conflict or caused by an instrumentality of war and was not combat-related.  

b.  On 17 September 2020, he was discharged from active duty with an honorable character of service and on 18 September 2020, he was permanently retired with a compensable percentage for physical disability of 90 percent.  

c.  His election of the Survivor Benefit Plan option will be corrected in accordance with his expressed preferences and/or as otherwise provided for by law or the Code of Federal Regulations.

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-2021-01989 in Executive Session on 21 Mar 22:

, Panel Chair
, Panel Member
, Panel Member

All members voted to correct the record.  The panel considered the following:

Exhibit A:	Application, DD Form 149, w/atchs, dated 24 May 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 Oct 21.
Exhibit D:	Advisory Opinion, AFBCMR Psychological Advisor, dated 29 Oct 21.
Exhibit E: Applicant/Member’s Response, w/atchs, dated 17 Nov 21.
Exhibit F:	Advisory Opinion, AFPC/JA, dated 8 Feb 22.
Exhibit G:	Notification of Advisory, SAF/MRBC to Applicant, dated 15 Feb 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.