RECORD OF PROCEEDINGS

IN THE MATTER OF:	DOCKET NUMBER: BC-2021-00110

XXXX X. XXXX	COUNSEL: YES

	HEARING REQUESTED: NO

APPLICANT’S REQUEST

Upgrade her rank/grade at discharge from E-1 to E-3.

APPLICANT’S CONTENTIONS

On 5 May 20, the Board granted her request for a discharge upgrade to Honorable.  She now petitions the Board to upgrade her rank/grade at discharge from E-1 to E-3.  Had it not been for the sexual assault and the events that occurred thereafter, her rank would not have been reduced at court-martial.  In her prior case, the Board pointed out that even though there was no evidence the court-martial was improper, that in current-day cases, the extenuating circumstances may have resulted in a different outcome other than a court-martial.  The applicant and counsel agree with the Board’s assessment that not only was the Bad Conduct Discharge (BCD) improper, but also the reduction in rank was improper as well.   

The applicant’s complete submission is at Exhibit A.

STATEMENT OF FACTS

On 8 Dec 87, the applicant was convicted by special court-martial and sentenced to a reduction in grade to E-1 and a bad conduct discharge from the service.

On 11 Aug 88, according to special court-martial order no. 49, the sentence to bad conduct discharge and reduction to airman basic were affirmed.  

On 4 Oct 88, the applicant was separated as an E-1/airman basic with a BCD.

On 14 Jan 19, the applicant petitioned the Board to upgrade her BCD to Honorable.  

On 23 Jul 19, the AFBCMR staff provided the applicant the various guidance memoranda published for the Discharge Review Boards and Boards for Correction of Military/Naval Records (Exhibit C).

On 22 Apr 20, following a formal hearing, the Board recommended that the applicant’s discharge be upgraded to Honorable (Exhibit D).   

On 5 May 20, the Air Force Review Boards Agency (AFRBA) Director directed the applicant’s record be corrected to show on 4 Oct 88, she was issued an Honorable discharge, a Secretarial Authority narrative reason for separation, and a JFF separation code (Exhibit E).

For more information, see the excerpt of the applicant’s record at Exhibit B, the Record of Proceedings at Exhibit D, and the decision memorandum at Exhibit E.

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.

On 25 Jul 18, the Under Secretary of Defense 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. 

The various guidance memoranda can be found at Exhibit C. 

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 not the victim of an error or injustice.  After a complete review of the prior Board conclusion and evidence provide, the Board finds that the effect from her alleged sexual assault on her overall functioning may excuse or mitigate some but not all of her misconduct. While we note in the Board’s conclusion the applicant’s extenuating circumstances may have resulted in a different outcome other than court-martial, the Board still finds that the seriousness of her misconduct would have led to significant disciplinary action to even include a reduction in rank.  Taking that into consideration, the Board finds the prior correction to her record provides full and fitting relief.  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-2021-00110 in Executive Session on 8 Jul 21:

 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 10 Jan 21.
Exhibit B:	Documentary evidence, including relevant excerpts from official records.
Exhibit C:	Notification of clarifying guidance memoranda to applicant, dated 23 Jul 19.
Exhibit D:	Record of Proceedings, BC-2019-00548, Board date 22 Apr 20.
Exhibit E:	Memorandum, AFRBA Director, dated 5 May 20.

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.