RECORD OF PROCEEDINGS

IN THE MATTER OF:	DOCKET NUMBER: BC-2021-00682

XXXXXXXXXX	COUNSEL: NONE

 	HEARING REQUESTED: YES 	

APPLICANT’S REQUEST

His under other than honorable conditions (UOTHC) discharge be upgraded to honorable.

APPLICANT’S CONTENTIONS

He was told that his discharge would be upgraded after a period of time.  While on deployment in Iraq, he developed Post-Traumatic Stress Disorder (PTSD).  Although his narrative reason for separation is misconduct, that misconduct was preceded by events his mind could not handle. 

In support of his request, the applicant provides a copy of his DD Form 214, Certificate of Release or Discharge from Active Duty. 

The applicant’s complete submission is at Exhibit A.

STATEMENT OF FACTS

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

On 7 Jun 04, the applicant received Article 15 punishment for wrongfully using marijuana on divers occasions between on or about 23 Dec 02 to 15 Apr 04.  

On 21 Jul 04, the applicant’s commander recommended he be discharged from the Air Force, under the provisions of AFI 36-3208, Administrative Separation of Airmen for drug abuse.  The applicant acknowledged receipt of the discharge notification and was advised of his rights.  

On 22 Jul 04, the applicant submitted a waiver of his right to a board hearing contingent upon receiving no less than a general (under honorable conditions) discharge.  

In an undated letter to the wing commander, the applicant’s commander recommended he be discharged with an UOTHC discharge.  The commander stated that given his extensive admitted drug abuse since graduating from technical training school and his continued drug abuse after his first urinalysis, his service should not be characterized as under honorable conditions.  The commander recommended the conditional waiver be rejected and a discharge board convene.

On 29 Jul 04, the staff judge advocate (SJA) found the discharge action legally sufficient.

On 3 Aug 04, the wing commander considered the applicant’s offer of a conditional waiver of his right to a board hearing contingent on his receipt of no less than a general (under honorable conditions) discharge.  The wing commander rejected the conditional waiver. 

On 10 Aug 04, the applicant was notified by his defense counsel that his conditional waiver was denied.  On 16 Aug 04, the applicant acknowledged that the wing commander rejected his conditional waiver.

 On 3 Feb 05, the SJA found the discharge action legally sufficient to separate the applicant with an UOTHC discharge characterization.

On 4 Feb 05, the wing commander determined the applicant’s misconduct was such a significant departure from the conduct expected of airmen.  The commander recommended that the numbered Air Force commander separate the applicant with an UOTHC discharge.

On 22 Feb 05, the numbered Air Force judge advocate reviewed the case and found it legally sufficient to support an UOTHC discharge.

On 2 Mar 05, the discharge authority directed the applicant be discharged for drug abuse, with an UOTHC service characterization.  Probation and rehabilitation was not authorized.

On 7 Mar 05, the applicant received a UOTHC discharge.  His narrative reason for separation is “Misconduct” and he was credited with 2 years, 9 months, and 23 days of total active service.

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

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 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 17 Aug 21, the Board sent the applicant a request for post-service information, including a standard criminal history report from the Federal Bureau of Investigation (FBI) and a copy of the liberal consideration guidance; however, he has not replied (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.

Under Other than Honorable Conditions.  When basing the reason for separation on a pattern of behavior or one or more acts or omissions that constitute a significant departure from the conduct expected of airmen.  The member must have an opportunity for a hearing by an administrative discharge board or request discharge in lieu of trail by court-martial.  Examples of such behavior, acts, or omissions include, but are not limited to:

•	The use of force or violence to produce serious bodily injury or death.
•	Abuse of a special position of trust.
•	Disregard by a superior of customary superior - subordinate relationships.
•	Acts or omissions that endanger the security of the United States. 
•	Acts or omissions that endanger the health and welfare of other members of the Air Force.
•	Deliberate acts or omissions that seriously endanger the health and safety of other persons.
•	Rape, sexual assault, aggravated sexual contact, abusive sexual contact, rape of a child, sexual assault of a child, sexual abuse of a child, forcible sodomy and attempts to commit these offenses.

AIR FORCE EVALUATION

The AFBCMR Psychological Advisor recommends denying the application.  There is insufficient evidence to support the applicant’s request for an honorable discharge.  The Board however, may choose to upgrade his discharge to general (under honorable conditions) based on liberal consideration if the Board finds this characterization appropriate.  The applicant is requesting an honorable discharge, but the Psychological Advisor does not find his character of service to be honorable because he knowingly used an illicit substance almost throughout his entire time in service.  Since there was evidence he used marijuana to cope with his stressors and possible mental health condition, the Board could consider upgrading his service characterization to general (under honorable conditions), as this may be more appropriate.  This is also considering the amount of time that has passed since discharge, and marijuana use would typically result in a general discharge in present time.  This decision is at the discretion of the Board.  

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 26 Oct 21 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 to warrant upgrading his UOTHC discharge to honorable.  The Board concurs with some of the rationale and recommendations of the AFBCMR Psychological Advisor and finds a preponderance of the evidence does not substantiate the applicant’s contentions.  The AFBCMR Psychological Advisor states there is evidence he used marijuana to cope with his stressors and possible mental health condition and the Board could consider upgrading his service characterization to general (under honorable conditions).  However, given his extensive admitted drug abuse during since graduating technical training school and continued use after his first urinalysis, the Board is satisfied the application of liberal consideration does not warrant relief.  In the interest of justice, the Board considered upgrading the discharge based on clemency; however, in the absence of his post-service activities and a FBI Report, there is no way for the Board to determine if the applicant’s accomplishments since leaving the service warrant such an action.  Therefore, 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-2021-00682 in Executive Session on 15 Dec 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/atch, dated 26 Jan 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 17 Aug 21.
Exhibit D:	Advisory Opinion, AFBCMR Psychological Advisor, dated 18 Aug 21.
Exhibit E:	Notification of Advisory, SAF/MRBC to Applicant, dated 26 Oct 21.

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.