RECORD OF PROCEEDINGS

IN THE MATTER OF:	DOCKET NUMBER: BC-2021-03309

XXXXXXXXX	COUNSEL: NONE
	
	HEARING REQUESTED: NO	

APPLICANT’S REQUEST

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

APPLICANT’S CONTENTIONS

He was suffering from severe depression at the time of his misconduct.

The applicant’s complete submission is at Exhibit A.

STATEMENT OF FACTS

The applicant is a former Air Force airman basic (E-1).

On 4 Dec 17, the applicant’s commander recommended he be discharged from the Air Force for Drug Abuse and Minor Disciplinary Infractions, under the provisions of AFPD 36-32, Military Retirements and Separations, and AFI 36-3208, Administrative Separation of Airmen, paragraphs 5.54 and 5.49.  The specific reasons for the action were:

a.	On 8 Aug 17, the applicant received an Article 15 for consuming alcohol while under the age of 21.  As a result, the applicant was ordered to forfeit $739 of pay for 2 months, restricted to the limits of his duty base, received 14 days of extra duty, and reprimanded.

b.	On 31 Aug 17, the applicant received a Record of Individual Counseling for failing to shave before duty. 

c.	On 12 Sep 17, the applicant received a Letter of Reprimand (LOR) for being late to accountability.

d.	On 21 Nov 17, the applicant received an AF Form 366,  Record of Proceedings of Vacation of Suspended Nonjudicial Punishment, for failing to return to his dormitory by Call to Quarters.

e.	In an addendum to the Notification Memorandum dated 8 Jan 18, the applicant's commander notified him that he was identified in a video using marijuana.

On 6 Feb 18, the assistant staff judge advocate found the discharge action legally sufficient.

On 8 Feb 18, the discharge authority directed the applicant be discharged for Drug Abuse, with a general (under honorable conditions) service characterization without the offer of probation and rehabilitation.

On 9 Feb 18, the applicant received a general (under honorable conditions) discharge.  His narrative reason for separation is “Misconduct (Drug Abuse)” and he was credited with nine months and eight days of total active service.

On 28 Sep 21, the applicant submitted a request to the Air Force Discharge Review Board (AFDRB) for an upgrade to his discharge.

On 1 Feb 22, 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.

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

POST-SERVICE INFORMATION

On 25 Apr 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 25 Apr 22, 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 finds insufficient evidence to support the applicant’s request for an upgrade to his discharge.  The applicant did not provide any new evidence that would warrant overturning the AFDRB’s recent decision.  There was no evidence the applicant had any mental health conditions during service that may affect his behaviors causing his discharge.  The applicant’s separation physical, included evaluations from the Alcohol and Drug Abuse Prevention and Treatment (ADAPT) facility and his primary care physician, which yielded negative results or reports for any mental health issues to include depression.

There are no records that show his military duties caused him to feel depressed or if he was depressed at the time of his numerous misconduct causing his discharge.  The applicant was evaluated by the Department of Veterans Affairs (DVA) three years post service for his reported depression.  The applicant reported his depression was triggered by childhood issues and worsened following his discharge.  The applicant provided multiple personal statements in response to his disciplinary infractions and discharge actions, which did not attribute his actions to depression.  His report of marijuana use was also inconsistent.  He denied using any marijuana/drugs in his statement in response to his discharge action, but he reported to the DVA he used and sold marijuana during service and reported to the AFDRB he used marijuana due to depression.  These behaviors of selling drugs during service would be considered to be a premeditated behavior and would not excuse or mitigate his misconduct and discharge due to its serious offense.  

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 he was suffering from severe depression at the time of his mistakes presumably referring to his misconduct. 

2.	Did the condition exist or experience occur during military service?
There is no evidence the applicant suffered from severe depression during service.  He was evaluated by ADAPT and by his Primary Care Manager  and denied experiencing any depression.  His DVA records indicated he had depression on and off since high school and exacerbated following his discharge but no records supporting he had depression at the time of his misconduct during service. 

3.	Does the condition or experience excuse or mitigate the discharge?
There is no evidence the applicant had any mental health conditions to include depression causing his misconduct and resulting with his discharge.  Therefore, his mental health condition does not excuse or mitigate his discharge. 

4.	Does the condition or experience outweighs the discharge?
Since there was no evidence his mental health condition may excuse or mitigate this discharge, his condition also does not outweigh his 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 7 Mar 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 and recommendation 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-2021-03309 in Executive Session on 21 Jul 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 28 Sep 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 Apr 22.
Exhibit D:	Advisory Opinion, AFRBA Psychological Advisor, dated 3 Mar 22.
Exhibit E:	Notification of Advisory, SAF/MRBC to Applicant, dated 7 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.