RECORD OF PROCEEDINGS

IN THE MATTER OF:	DOCKET NUMBER: BC-2021-01077

xxxxxxxxxxxx	COUNSEL: NONE

	HEARING REQUESTED: YES

APPLICANT’S REQUEST

Her discharge be changed to a medical retirement.

APPLICANT’S CONTENTIONS

She met the eligibility for a Medical Evaluation Board (MEB) in 2017 but no further action was taken and she was discharged in 2018 at the end of her enlistment term.  At the time of her discharge, she was experiencing severe distress as a result of behavior health issues and financial hardship caused by a military pay error.  She was offered an opportunity with National Aeronautics and Space Administration (NASA) if she left the service on her original separation date.  She declined a MEB in an effort to leave a toxic work environment.  A Military Equal Opportunity (MEO) investigation found her supervisor guilty of gender discrimination and a subsequent investigation found him guilty of abuse of authority one year later.  Due to the error in delaying her MEB and because of the toxic work environment, she was left with the option to separate instead of going through a MEB.  

The applicant’s complete submission is at Exhibit A.

STATEMENT OF FACTS

The applicant is a former Air Force technical sergeant (E-6).

Dated 1 Sep 16, according to AF Form 1587, Military Equal Opportunity Formal Complaint Summary, the applicant filed a complaint against her supervisor alleging unlawful discrimination based on gender.   The compliant was substantiated and legal concurred on 16 Sep 16 and the case was closed on 29 Sep 16 noting all allegations were thoroughly addressed and the applicant was satisfied with the assistance provided by the Equal Opportunity Staff.  

On 2 Aug 18, DD Form 214, Certificate of Release or Discharge from Active Duty, reflects the applicant was honorably discharged in the grade of technical sergeant (E-6) after serving 9 years, 11 months and 28 days of active duty.  She was discharged, with a narrative reason for separation of “Completion of Required Active Service.”
For more information, see the excerpt of the applicant’s record at Exhibit B and the advisory opinions at Exhibit C.

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 5 Aug 21, the Board staff provided the applicant a copy of the liberal consideration guidance (Exhibit E).

AIR FORCE EVALUATION

The AFBCMR Medical Advisor recommends denying the application, finding insufficient evidence to support the applicant’s requests for the desired changes to her discharge records.  The applicant contends that a delay in initiating the Disability Evaluation System (DES) in regards to her behavioral health issues remained instrumental in her decision not to pursue an MEB through to completion; thereby exiting the service by a particular date as to accept a civilian internship position with NASA. This medical advisor has reviewed all available records and finds the applicant has not met the burden of proof to support her request. Although the applicant spoke about requesting to “…just end her term of service early,” there was no actual document within the records indicating such a request.  Rather, it appeared that she was speaking about requesting approval for terminal leave prior to her Expiration of Term of Service (ETS) of 2 Aug 18.  Such a request was approved to begin on 20 Jul 18.  As ascertained from the record review, there remains no question that the applicant did have a potentially unfitting mental health condition and that a significant delay did occur in starting the MEB process between the Army and AF facilities.  However, despite having a mental health condition that met AF MEB criteria, it was the applicant’s own volition to act upon the approved request for terminal leave and forgo the full processing of the MEB and completion through the IDES.  Her terminal leave release date of 20 Jul 18 enabled her to begin the civilian internship on 23 Jul 18.  Her request for a military “medical retirement” would only be applicable if through the IDES, she received a Department of Veterans Administration (DVA) disability impairment rating of at least 30 percent in accordance to the Veterans Affairs Schedule for Rating Disabilities (VASRD) guidelines.  This process did not occur.  Even if the applicant did complete the MEB and further IDES processing, there was no guarantee that her mental health condition would have been rated by the DVA at the 30 percent minimum threshold for a medical retirement.  Any rating below the 30 percent would have resulted in being discharged with severance pay and not a medical retirement.  Given the final outcome of the applicant’s choice and discharge actions, a medical retirement is non-applicable.

The AFBCMR Psychological Advisor concurred with the recommendation of the AFBCMR Medical Advisor.  The applicant was never deem not worldwide qualified due to her mental health condition and no statements from her commander or leadership of any observance her mental health condition had interfered with her ability to reasonably perform her military duties in accordance to her office, grade, rank or rating.  Furthermore, the applicant was able to successfully complete her obligated service commitment, indicating her overall functioning in the military was not as significantly impaired.  Considering this additional information, the medical advisor was correct with his assertion that a referral to the MEB for a potentially unfitting mental health condition would not guarantee the desired or successful outcome of a medical retirement.  The board may elect to apply liberal consideration to the applicant’s request due to her contention of a mental health condition, however, since her mental health condition was never found to be unfitting for continued military service through the DES process, her mental health condition or experience does not outweigh her original administrative 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 27 Jul 21 for comment (Exhibit D), but has received no response.

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.  The Board concurs with the rationale and recommendations of the AFBCMR Medical and Psychological Advisors and finds a preponderance of the evidence does not substantiate the applicant’s contentions.  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-2021-01077 in Executive Session on 6 Oct 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 22 Jul 20.
Exhibit B:	Documentary evidence, including relevant excerpts from official records.
Exhibit C:	Advisory Opinion, AFBCMR Medical and MH Advisors, dated 14 Jul 21.
Exhibit D:	Notification of Advisory, SAF/MRBC to Applicant, dated 27 Jul 21.
Exhibit E:	Letter to Applicant, SAF/MRBC (Liberal Consideration), dated 5 Aug 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.