RECORD OF PROCEEDINGS

IN THE MATTER OF:	DOCKET NUMBER: BC-2021-02731

XXXXXXXXXXXX	COUNSEL: NONE

	HEARING REQUESTED: NO	

APPLICANT’S REQUEST

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

APPLICANT’S CONTENTIONS

He had mental health issues that were never treated due to the death of his best friend from a plane crash near Turkey that he never disclosed.

The applicant’s complete submission is at Exhibit A.

STATEMENT OF FACTS

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

On 29 Aug 83, the applicant’s commander recommended the applicant be discharged from the Air Force, under the provisions of AFR 39-10, Administrative Separation of Airmen, paragraph 5-47 for a pattern of misconduct.  The specific reasons for the action were:

	a.  On 16 Mar 82, Letter of Counseling (LOC) was issued for dereliction of duty.
	
	b.  On 7 Jul 82, Letter of Reprimand (LOR) was issued for dereliction of duty.

	c.  On 16 Oct 82, Letter of Admonishment (LOA) was issued for dereliction of duty.

	d.  On 15 Dec 82, LOR was issued for falsifying documents.

e. Dated 30 Jun 83, AF Form 3070, Notification of Intent to Impose Nonjudicial Punishment (NJP), indicates the applicant received NJP, Article 15 for making a false statement.  He received a reduction in grade to airman (E-2), suspended until 10 Jan 84, and forfeiture of pay of $120.00.

f.  Dated 10 Aug 83, AF Form 366, Notification of Intent to Vacate Suspended NJP, indicates the applicant violated Article 134 for disorderly conduct.  The applicant was reduced to the grade of airman with a new date of rank (DOR) of 12 Jul 83.

On 6 Sep 83, the Staff Judge Advocate found the discharge action legally sufficient.

On 29 Sep 83, the discharge authority directed the applicant be discharged for a pattern of misconduct, with a general service characterization.  

On 5 Oct 83, the applicant received a general (under honorable conditions) discharge.  His narrative reason for separation is “Misconduct” and he was credited with 2 years, 5 months, and 27 days of total active service.

On 11 Mar 84, the applicant submitted a request to the Air Force Discharge Review Board (AFDRB) for an upgrade to his discharge.

On 20 Feb 85, the AFDRB concluded the discharge was consistent with the procedural and substantive requirements of the discharge regulation and was within the discretion of the discharge authority and the applicant was provided full administrative due process.

On 20 Jul 88, the applicant submitted a second request to the AFDRB for an upgrade to his discharge requesting an in-person hearing.

On 18 Oct 88, the AFDRB found the discharge was not overly harsh based on the evidence and testimony presented by the applicant, as well as the military record.  The mitigating circumstances were not sufficient to overcome the combined incidents of misconduct, nor did they make the discharge inequitable.  The board noted the applicant’s post-service accomplishments were commendable, however, they did not change the circumstances that led to the discharge.  The board concluded the discharge was consistent with the procedural and substantive requirements of the discharge regulation and was within the discretion of the discharge authority and the applicant was provided full administrative due process.  

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

POST-SERVICE INFORMATION

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

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.  A review of all available records finds no evidence his mental health condition had a direct impact to his misconduct resulting with his discharge. There was inconsistent report of when his friend passed away in his DVA records - a note stated 1981 and another in 1982.  Regardless of this discrepancy, the type of behaviors and misconduct he was documented to have engaged in were not consistent to behaviors resulting from grief and loss or a mental health condition.  His responses to his disciplinary action and discharge at the snapshot in time of service reflected he was unaware of his misconduct, there was a misunderstanding, or a situation needed to be clarified.  It is comprehensible he never disclosed his grief and loss, but there were also no reports or hints of any difficulties or stressors surrounding the event he may have experienced causing his misconduct.  The applicant also did not clarify how his grief and loss or mental health condition affected his behaviors/misconduct and discharge.  He provided limited and vague information in his petition and his DVA records were not sufficient to support his contentions.  He reported to the DVA decades post discharge he developed depression from his grief and loss but no records exist on how this experience or his mental health condition caused his discharge.  The responsibility lies with the applicant to provide the necessary information or records to corroborate his claim.  Therefore, this psychological advisor concurs with the DRB’s previous opinions and also finds no error or injustice with his discharge from service.  

Liberal consideration is applied to the applicant’s request due to the contention of a mental health condition.  The following are responses to the four questions in 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 best friend died from a plane crash and implied his mental health issues from this incident was never revealed during service.

2. Did the condition exist or experience occur during military service?
There is no evidence he received any mental health evaluation, diagnosis or treatment during service.  There were also no evidence of any mental health issues, stressors, or difficulties he may have experienced relating to his friend’s death. He reported to the DVA decades post discharge he lost his friend during service and was diagnosed with depression, anxiety, and PTSD for his grief and loss and post-service stressors.

3. Does the condition or experience excuse or mitigate the discharge?
There is no evidence his mental health condition or experience with grief and loss from his friend’s death had a direct impact on his behaviors and misconduct resulting with his discharge. His condition or experience does not excuse or mitigate his discharge.

4. Does the condition or experience outweighs the discharge?
Since there is no evidence his mental health condition or experience may excuse or mitigate his discharge, his condition or experience also does not outweigh his discharge.

The complete advisory opinion is at Exhibit C.

APPLICANT’S REVIEW OF AIR FORCE EVALUATION

The Board sent a copy of the advisory opinion to the applicant on 22 Mar 22 for comment (Exhibit D), 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 the AFRBA Psychological Advisor and finds a preponderance of the evidence does not substantiate the applicant’s contentions.  Liberal consideration was applied to the applicant’s request due to the contention of a mental health condition, however, since there is no evidence his mental health condition or experience with grief and loss from his friend’s death had a direct impact on his behaviors and misconduct resulting with his discharge, his condition or experience does not excuse, mitigate, or outweigh his discharge.  In the interest of justice, the Board considered upgrading the discharge based on fundamental fairness; however, given the evidence presented, and in the absence of post-service information and a criminal history report, the Board finds no basis to do so. 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-2021-02731 in Executive Session on 27 Apr 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/atch, dated 5 Jul 21.
Exhibit B:	Documentary Evidence, including relevant excerpts from official records.
Exhibit C:	Advisory Opinion, AFBCMR Psychological Advisor, dated 17 Mar 22.
Exhibit D:	Notification of Advisory, SAF/MRBC to Applicant, dated 22 Mar 22.
Exhibit E:	Letter, SAF/MRBC, w/atchs (Post-Service Request and Liberal Consideration  
                  Guidance), dated 22 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.