RECORD OF PROCEEDINGS

IN THE MATTER OF:	DOCKET NUMBER: BC-2021-02675

xxxxxxxxxxxxxxx	COUNSEL: NONE

	HEARING REQUESTED: NO

APPLICANT’S REQUEST

1.   Her general (under honorable conditions) discharge be upgraded to a medical separation/retirement.

2.  Her narrative reason for separation be changed from “Misconduct (Minor Infractions)” to a medical separation.

APPLICANT’S CONTENTIONS

She was in the process of going through a Medical Evaluation Board (MEB) when she was separated.  There is overwhelming evidence in her medical records that document the medical conditions that led to her discharge.  Her diagnosis of Narcolepsy with her combined anxiety, depression, and suicidal thoughts and work stress led to her decision to smoke marijuana.

The applicant’s complete submission is at Exhibit A.

STATEMENT OF FACTS

The applicant is a former Air Force airman first class (E-3).

Dated 4 Jun 20, a letter from the Warrior Operational Medicine Clinic indicates the applicant was diagnosed with narcolepsy without cataplexy in Feb 20.

On 29 Jul 20, 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 and 5.54 for misconduct: minor disciplinary infractions and drug abuse.  The specific reasons for the action were:

	a.  On 17 Jan 20, Letter of Counseling (LOC) issued for failure to go.
	
	b.  On 24 Jan 20, LOC issued for failure to follow dress and appearance standards.

c.  On 1 May 20, Letter of Reprimand (LOR) issued for failure to complete facility manager       listing tasks.

	d.  On 13 May 20, LOR issued for failure to report for telework accountability.

e.  On 11 Jun 20, AF Form 3070, Record of Nonjudicial Punishment (NJP) Proceedings, indicates the applicant received NJP, Article 15 for failure to report for telework accountability.  She received a reduction in grade to airman (E-2), suspended until 10 Dec 20, 45 days of extra duty, base restriction for 60 days, excess of 40 days suspended until 10 Dec 20, and forfeiture of $500.00 pay  for two months.

f.  On 14 Jul 20, AF Form 366, Record of Proceedings of Vacation of Suspended Nonjudicial Punishment, indicates the applicant violated Article 86 by failing to go.  The applicant was reduced to the grade of airman (E-1) with a new Date of Rank (DOR) of 
11 Jun 20.

g.  On 16 Jul 20, LOR issued for unlawfully ingesting marijuana.

On 7 Aug 20, the discharge authority directed the applicant be discharged for misconduct: Minor disciplinary infractions and drug abuse, with a general service characterization.  Probation and Rehabilitation was considered, but not offered.

On 24 Aug 20, the applicant received a general (under honorable conditions) discharge.  Her narrative reason for separation is “Misconduct (Minor Infractions)” and she was credited with one year, eight months, and seven days of total active service.

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

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 30 Mar 22, the Board staff provided the applicant a copy of the liberal consideration guidance (Exhibit F).

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 AFBCMR Medical Advisor recommends denying the application finding insufficient evidence to support the applicant’s requests for the desired changes to her records.  Neither through diagnosis and treatment criteria or service aggravation was the applicant a candidate for Disability Evaluation System (DES) processing.  In accordance with DoDI 6130.03-V2, Medical Standards for Military Service: Retention, Section 5.27 (Sleep Disorders), paragraph (a) the diagnosis of narcolepsy is indeed a disqualifying condition for service retention.  Therefore, without extenuating circumstances, processing via the DES is correct.  However, under that same section/paragraph, it clearly states the following: “When considering the conditions listed in this paragraph, the condition must persist despite appropriate treatment and impair function to preclude satisfactory performance of required military duties of the member’s office, grade, rank, or rating.”  In this particular case, none of the criteria listed above were in effect and therefore, under such parameters and according to the DoDI, her diagnosis of narcolepsy would not actually support a disqualifying condition or that of an unfit condition.  Her condition did not persist despite appropriate treatment with medications and she maintained the ability to perform her duties required of her Air Force Specialty Code (AFSC).  This was emphasized in the commander’s impact statement.  Her separation physical examination was just 11 days prior to her discharge whereby she checked “yes” to being currently in good health. It is the opinion of this medical advisor that although local military medical providers initiated the first aspects of DES processing, they failed to realize the additional criteria set apart from just the diagnosis.  A MEB was not necessary or required in this case by not meeting certain criteria.  Another way to approach this case is to determine if there was permanent service aggravation of her sleep issues beyond the natural and expected disease/condition progression.  There was an abundance of evidence that her condition existed prior to service (EPTS) as frequently reported by the applicant herself in various clinic visits.  Her condition improved with treatment and she maintained the ability to perform her required military duties.  There was no evidence of service aggravation of an EPTS condition.

The complete advisory opinion is at Exhibit C.

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 a medical discharge based on her mental health contention but does find sufficient evidence to support an upgrade to honorable based on liberal consideration.  Although there is evidence that she sought mental health treatment for anxiety, depression, sleep issues, and work stress, her mental health condition never elevated to potentially unfitting meeting criteria to be referred to the MEB for a possible discharge. The applicant’s reference of being in the process of getting an MEB at the time of separation was for her physical condition and not mental health condition. She was never placed on a duty limiting condition profile for her mental health condition and never deem not worldwide qualified due to her mental health condition. There were no records from her leadership of any observations her mental health condition had interfered with her ability to reasonably perform her military duties in accordance to her office, grade, rank or rating. Receiving mental health treatment and a diagnosis do not automatically make a condition as unfitting as more information is needed and required as discussed. Therefore, her request for a medical discharge based on her mental health condition could not be supported. Although she did not have any unfitting mental health conditions that would warrant a medical discharge, there were numerous evidence from the applicant’s statements at the snapshot in time of service, her available service treatment records, and her personal statement for this petition that would establish a nexus had existed between her mental health condition and misconduct. The applicant had consistently reported having sleep issues in which she had received a formal diagnosis of narcolepsy and treatment that were found to have caused her numerous failures to report to work on time. These occupational stressors derived from receiving disciplinary actions or “paperwork” caused her to feel overwhelmingly anxious and depressed which also led to her use of marijuana to help with her stress. This psychological advisor does not condone illicit drug use, but her reasons were reasonable considering the stressors she was under causing her decompensated mood and impaired judgment.  Marijuana tend to be used as a sedative substance.  As such, liberal consideration should be applied for consideration for an upgrade to honorable.  This decision is at the Board’s discretion.  

Liberal consideration is applied to the applicant’s request.  The following responses are based on information provided in the records to the four questions in the Kurta memorandum/liberal consideration policy.  

1. Did the veteran have a condition or experience that may excuse or mitigate the discharge?
The applicant contends she had sleep issues (narcolepsy), anxiety, depression, work stress, and personal stressors during service causing her to use marijuana. She is also requesting a medical discharge.

2. Did the condition exist or experience occur during military service?
There is evidence the applicant received mental health treatment for sleep issues, anxiety, depression, and work stress during service.

3. Does the condition or experience excuse or mitigate the discharge?
There is no evidence the applicant had any unfitting mental health conditions for a medical discharge to support her request. Her records however, finds ample information and evidence existed to indicate her mental health condition (sleep issues, anxiety, depression, stress, etc) caused her to be late to work on numerous occasions and marijuana use.  Her condition would excuse and mitigate her discharge.

4. Does the condition or experience outweighs the discharge?
Since there is evidence her mental health condition may excuse and mitigate her discharge, her condition would also outweigh her original general discharge for misconduct.

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 24 Mar 22 for comment (Exhibit E), 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 applicant is 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 substantiates the applicant’s contentions in part.  Specifically, the applicant has provided evidence from her statements at the snapshot in time of service, her available service treatment records, and her personal statement for this petition that would establish a nexus existed between her mental health condition and misconduct, which is sufficient to justify granting the applicant’s request to upgrade her discharge to honorable based on liberal consideration.  However, for the remainder of the applicant’s request, granting her a medical separation/retirement, the evidence presented did not demonstrate an error or injustice, and the Board therefore finds no basis to recommend granting that portion of the applicant’s request.  While there is evidence the applicant sought mental health treatment for anxiety, depression, sleep issues, and work stress, her mental health condition never elevated to potentially unfitting meeting criteria to be referred to an MEB for a possible discharge.  Therefore, the Board recommends correcting the applicant’s records as indicated below.

RECOMMENDATION

The pertinent military records of the Department of the Air Force relating to the APPLICANT be corrected to show that on 24 August 2020, she was honorably discharged with a narrative reason for separation of “Secretarial Authority” with a corresponding separation code of “JFF” and she be furnished an honorable discharge certificate.

However, regarding the remainder of the applicant’s request, the Board recommends informing the applicant the evidence did not demonstrate material error or injustice, and the application will only be reconsidered upon receipt of relevant evidence not already considered by the Board.

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-2021-02433 in Executive Session on 27 Apr 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 12 Jul 21.
Exhibit B:	Documentary evidence, including relevant excerpts from official records.
Exhibit C:	Advisory Opinion, AFBCMR Medical Advisor, dated 16 Mar 22.
Exhibit D:	Advisory Opinion, AFBCMR Psychological Advisor, dated 21 Mar 22.
Exhibit E:	Notification of Advisory, SAF/MRBC to Applicant, dated 24 Mar 22.
Exhibit F:	Letter, SAF/MRBC (Liberal Consideration Guidance), dated 30 Mar 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.