RECORD OF PROCEEDINGS

IN THE MATTER OF:	DOCKET NUMBER: BC-2021-03314

xxxxxxxxxxxx	COUNSEL: NONE

	HEARING REQUESTED: YES

APPLICANT’S REQUEST

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

APPLICANT’S CONTENTIONS

He was diagnosed with bipolar disorder and had a traumatic brain injury (TBI) while serving.  He submitted a social security disability hearing report as evidence to support he was given a disability for bipolar disorder.

The applicant’s complete submission is at Exhibit A.

STATEMENT OF FACTS

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

On 9 Jun 08, 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 minor disciplinary infractions. The specific reasons for the action were:

	a.  On 1 Jun 07, a Letter of Reprimand (LOR) was issued for simple assault.
	
b.  On 18 Jul 07, a Letter of Counseling (LOC) was issued for disrespect towards a non-commissioned officer (NCO).

	c.  On 21 Aug 07, a LOR was issued for spousal abuse.

	d.  On 17 Jan 08, a LOR was issued for use of unprofessional language.

e.  On 1 May 08, AF Form 3070, Record of Nonjudicial Punishment Proceedings, indicates the applicant received nonjudicial punishment (NJP), Article 15 for failure to obey and dereliction of duty.  He received a reduction in grade to airman basic (E-1) and 15 days of extra duty, both suspended until 31 Oct 08.
f.  On 28 May 08, a Letter of Admonishment (LOA) was issued for failure to correctly sign in from leave.

On 19 Jun 08, the Staff Judge Advocate found the discharge action legally sufficient.

On 24 Jun 08, 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 1 Jul 08, the applicant received a general (under honorable conditions) discharge.  His narrative reason for separation is “Misconduct (Minor Infractions)” and he was credited with two years, eight months, and seven days of total active service.

On 5 Nov 08, the applicant submitted a request to the Air Force Discharge Review Board (AFDRB) for an upgrade to his discharge.

On 14 Oct 10, 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 C.

POST-SERVICE INFORMATION

On 8 Mar 22, the Board sent the applicant a request for post-service information, including a request for 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 8 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.  The applicant reported being diagnosed with bipolar disorder by his Primary Care Manager (PCM) during military service, but there were no records to substantiate this claim.  He did meet with his PCM on several occasions for treatment for his physical conditions, but he never received mental health treatment or was diagnosed with bipolar disorder from this provider.  He met with a mental health provider once during service on 30 Apr 08, but there were no records of any bipolar disorder diagnosis assigned to him or any experiences of bipolar symptoms reported.  Instead, he had complaints of anger issues and mild depressive symptoms and was given a diagnosis of adjustment disorder with depressed mood.  He reported having fluctuating mood, sleep disturbances, racing thoughts/mind, and heightened energy and mood to his Department of Veterans Affairs (DVA) provider several years post-service but again, there were no records he experienced any of these symptoms during service.  It appeared his condition of bipolar disorder had developed and progressed post-service causing him to meet diagnostic criteria for this condition several years later.  It is possible he experienced the onset of this condition during service as he had complaints of anger issues and mild depressive symptoms but this notion however, is speculative with no confirming or substantive information to substantiate this conclusion.  It could not be definitely determined his anger and depressive symptoms had later developed into a bipolar or depressive disorder (for which he was diagnosed with both conditions post-service) due to the lack of clarifying information in his available records.

The applicant submitted his social security hearing report revealing he had severe impairments of Post-Traumatic Stress Disorder (PTSD), bipolar disorder, major depressive disorder, antisocial personality features, and migraine headaches. The report also stated, “Of particular note, despite alleging disability since Sep 16, there is very little evidence that predates a brief Mar 18 hospitalization, which notably took place just before filing the current application for benefits.”
This statement showed the applicant had claimed the onset of his disability was in Sep 16, which was well after his service discharge date of 1 Jul 08. The statement also stated there was very little evidence of his disability prior to his hospitalization in 2018, which this psychological advisor had also found. There was no evidence the applicant had any of these post-service conditions with the possible exception of antisocial personality features during his military service, and all of these conditions were diagnosed several years post discharge.  None of these conditions were found to impair his functioning during service. He had a documented adjustment disorder diagnosis that could possibly explain his behaviors in service; however, this psychological advisor finds it more likely than not, his behaviors were more consistent to his personality features/traits identified post- service.  Personality Disorders and traits are enduring, pervasive, and life-long conditions typically first identified or beginning in adolescent or early adulthood. Antisocial personality traits consists of disregard and violations of the rights of others, irritability, aggressiveness, physical fights/assaults, multiple issues at work leading to job loss and changes, reckless disregard for safety, consistent irresponsibility, multiple arrests, etc. These traits are consistent to his documented misconduct and reasons for his discharge and better explain his behaviors during service rather than bipolar disorder, depression, or any other mental health condition.  Personality Disorders and traits are considered to be unsuiting for military service.  The applicant did not provide an explanation for how his mental health condition had affected his behaviors and misconduct causing his discharge from service. Giving the applicant the benefit of the doubt his mental health condition may cause some of his behaviors such as anger resulting with him being disrespectful to his Non-Commissioned Officers (NCO), but his condition could not excuse, mitigate or outweigh his discharge due to the serious nature of his misconduct.  The applicant was reported to have physically assaulted his wife on at least two occasions causing physical harm and bodily injury to her.  His repeated aggressive behaviors during service towards his wife and his NCOs are inappropriate and unacceptable behaviors that could not be overlooked.  This aggressive behavior appeared to have continued post-service as his social security hearing report stated he had several physical altercations with others, had demonstrated confrontational behaviors, has difficulties getting along with family, friends, and persons in authority, was easily aggravated, and was terminated from his employment with a school district for possibly engaging in a physical altercation with a child or due to multiple disciplinary infractions. His mental health condition also does not adequately explain his failure to not send out missing form letters via e-mail as instructed, not label aircraft forms [sic] and failure to correctly sign in from leave.  

Lastly, the applicant reported he had a TBI during service. There is evidence he had sustained a head injury from playing football during service, but there were no complications or behavioral changes noted resulting from this injury. He received a head computed tomography (CT) scan and the results were normal.  There were no records he required a referral to a neurologist for continuous and specialty care and no records of any neuropsychological issues or impairments to his memory, organizational skills, problem solving, spatial reasoning noted.  In fact, his response to his Notification Memorandum dated 10 Jun 08, reported he was currently a student in college with a 3.67 grade point average (GPA) and was a double major in the fields of Criminal Justice and Biology.  This statement from the applicant provided additional evidence he did not have any significant cognitive impairments or difficulties from his TBI/head injury as he was able to continue to function at a high academic level.  A TBI could cause one to develop anger issues and mood changes, and there is indication he had behavioral issues after his head injury.  Nevertheless, it is difficult to discern whether his anger issues were the result of his head injury, antisocial personality features/traits, or even depressive symptoms as these conditions share similar symptoms. The applicant did not submit relevant records that would clarify this issue nor did his Department of Veterans Affairs (DVA) treatment records provide any clarity.  As such, there is insufficient evidence to suggest his anger and behavioral issues were caused by his TBI/head injury, and/or there was no evidence of any complications or neuropsychological issues deriving from his head injury that may cause any of his behaviors or misconduct resulting with his discharge. 

Liberal consideration is 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 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 diagnosed with bipolar disorder and had a TBI during service.

2. Did the condition exist or experience occur during military service?
There is no evidence the applicant was diagnosed with bipolar disorder or had experienced bipolar symptoms during service. He was diagnosed with bipolar disorder by the DVA several years post discharge.  He was reported to have anger issues and mild depressive symptoms and received a diagnosis of adjustment disorder with depressed mood during service. The rationale for symptoms and diagnosis were not documented in this records. There is evidence he sustained a head injury while playing football during service, but no complications or neurocognitive issues related to this incident were reported.

3. Does the condition or experience excuse or mitigate the discharge?
Giving the applicant the benefit of the doubt his mental health condition may cause some of his behaviors, his condition does not excuse or mitigate his discharge. The applicant did not sufficiently explain how his mental health condition had caused his misconduct and his mental health condition was not found to be able to excuse or mitigate his more repeated and serious misconduct issues.

4. Does the condition or experience outweighs the discharge?
Since the applicant’s mental health condition does not excuse or mitigate his discharge, his condition also does not outweigh his discharge. This psychological advisor opines the applicant had engaged in repeated and serious misconduct that could be not be overlooked or outweighed by his mental health condition.

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 8 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 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.  In the interest of justice and fundamental fairness, the Board considered upgrading the discharge based on clemency; 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.  Furthermore, the Board notes the applicant’s contention that he suffers from bipolar disorder and had a traumatic brain injury (TBI) while serving; however, the Board does not find the evidence presented sufficient to conclude that his mental health conditions excuses, mitigates, or outweighs his original discharge.  Therefore, the Board is satisfied that the application of liberal consideration does not warrant relief.  Accordingly, the Board recommends against correcting the applicant’s records.

4.  The applicant has not shown a personal appearance, with or without counsel, would materially add to the Board’s understanding of the issues involved.

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-2021-03314 in Executive Session on 25 May 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 31 Aug 21.
Exhibit B:	Documentary Evidence, including relevant excerpts from official records.
Exhibit C:	Advisory Opinion, AFBCMR Psychological Advisor, dated 17 Feb 22.
Exhibit D:	Notification of Advisory, SAF/MRBC to Applicant, dated 8 Mar 22.
Exhibit E: Letter, SAF/MRBC, w/atchs (Post-Service Request and Liberal Consideration  
                 Guidance), dated 8 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.