RECORD OF PROCEEDINGS

IN THE MATTER OF:	DOCKET NUMBER: BC-2021-02010

xxxxxxxxxxxx	COUNSEL: NONE

	HEARING REQUESTED: NO	

APPLICANT’S REQUEST

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

APPLICANT’S CONTENTIONS

He was given a service-connected disability rating for Post-Traumatic Stress Disorder (PTSD) by the Department of Veterans Affairs (DVA) and wants his discharge upgraded so he can apply for DVA education benefits.

The applicant’s complete submission is at Exhibit A.

STATEMENT OF FACTS

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

On 2 Feb 05, the applicant’s commander recommended the applicant be discharged from the Air Force, under the provisions of AFI 36-3208, Administrative Separation of Airmen, paragraph 5.49 for misconduct, minor disciplinary infractions.  The specific reasons for the action were:

a.	On 19 Sep 04, AF Form 3070, Record of Nonjudicial Punishment Proceedings, indicates applicant received nonjudicial punishment, Article 15 for providing alcohol to underage minors.  He received a reduction in grade to airman (E-2), suspended until 13 Mar 05, and forfeiture of pay $100.00 pay for 2 months.

b.	On 18 Jan 05, AF Form 366, Record of Proceedings of Vacation of Suspended Nonjudicial Punishment, indicates the applicant violated Article 92 by failing to refrain from using his government travel card for unofficial purchases.  The applicant was reduced to the grade of airman with a new Date of Rank (DOR) of 18 Jan 05.

On 8 Feb 05, the Staff Judge Advocate found the discharge action legally sufficient.
Not dated, the discharge authority directed the applicant be discharged for minor disciplinary infractions, with a general service characterization.  Probation and rehabilitation was considered, but not offered.

On 10 Feb 05, the applicant received a general (under honorable conditions) discharge.  His narrative reason for separation is “Misconduct” and he was credited with 2 years, 2 months, and 40 days of total active service.  (Administratively corrected - 2 years, 4 months, and 10 days).

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

POST-SERVICE INFORMATION

On 17 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 17 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 desired changes to the applicant’s records.  The applicant made no specific contentions regarding his mental health condition and did not provide any explanation about how his mental health condition affected his behaviors leading to his discharge from service.  The applicant however, submitted a DVA Decision Rating document dated on 22 Apr 21 reporting he was granted service-connection for PTSD to include anxiety and insomnia with a 30 percent disability rating effective on 3 Aug 20.  The DVA Decision Rating and his DVA treatment records also did not provide any details about how his PTSD or mental health condition affected his functioning in service and again, no clarifying information regarding the specific traumatic event(s) that led to him to develop PTSD.  His treatment notes were too vague to be able to determine if there was a possible nexus between his PTSD and misconduct causing his discharge.  For awareness, the DVA, operating under Title 38, U.S.C., is empowered to offer compensation for any medical condition with an established nexus with military service, without regard to its impact upon a member’s fitness to serve, the narrative reason for release from service, or the length time transpired since the date of discharge.  This was probably the reason the applicant was granted service-connection for PTSD even if there was no evidence in his military records of any PTSD or mental health issues.  Lastly, there was no documentation in the applicant’s objective military personnel records of any mental health issues and the applicant also did not discuss having any mental health issues in his personal statement at the snapshot in time of service. As a result, this psychological advisor finds no error or injustice with his discharge from service.  The Board may elect to apply liberal consideration to the applicant’s request due to his contention of a mental health condition, however, 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, mitigate, or outweigh his discharge.

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 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 provided no explanation about how his mental health condition affected his behaviors during service.  He submitted a document from the DVA granting him a 30 percent rating for PTSD.

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 of his mental health condition occurred 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 e, his condition experience outweigh 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 25 Feb 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 rationale of AFRBA Psychological Advisor and finds a preponderance of the evidence does not substantiate the applicant’s contentions.  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.  Furthermore, the Board applied liberal consideration to the evidence submitted by the applicant; however, it is not sufficient to grant the applicant’s request as there is no evidence he had any mental health conditions during service and no explanation of how his mental health condition caused his behaviors, therefore, his condition does not excuse, mitigate, or outweigh his discharge.  Therefore, the Board recommends against correcting the applicant’s records.

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-2021-02010 in Executive Session on 21 Mar 22 and 26 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 13 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 17 Jun 21.
Exhibit D:	Advisory Opinion, AFBCMR Psychological Advisor, dated 1 Sep 21.
Exhibit E:	Notification of Advisory, SAF/MRBC to Applicant, dated 25 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.