RECORD OF PROCEEDINGS

IN THE MATTER OF:	DOCKET NUMBER: BC-2021-01240

xxxxxxxxxxxxx	COUNSEL: XXXXXXXXXXX

	HEARING REQUESTED: YES

APPLICANT’S REQUEST

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

His narrative reason for separation be changed from “Drug Abuse” to “Resignation.”

APPLICANT’S CONTENTIONS

From 2005 to 2008, he repeatedly asked for a resignation from the Air National Guard (ANG) from his commander but the requests were denied.  He had a strained relationship with his commanding officer due to an unwelcome sexual advance.  Even with the strained relationship, he received superior ratings on his performance evaluations.  He received discharge paperwork in the mail indicating he was discharged with a general characterization due to drug abuse.  He denies this allegation; there is no record he abused drugs or failed a drug test.

The applicant’s complete submission is at Exhibit A.

STATEMENT OF FACTS

The applicant is a former ANG lieutenant colonel (O-5).

On 26 Jun 09, according to NGB 22, Report of Separation and Record of Service, the applicant received a general (under honorable conditions) discharge under the provisions of AFI 36-3209, Separation and Retirement Procedures for Air National Guard and the Air Force Reserve Members, paragraph 2.29.3, drug abuse.  His narrative reason for separation is “Drug Abuse” and he was credited with 19 years, 2 months, and 16 days of total service for pay.

On 29 Nov 18, the applicant submitted a request to the Air Force Discharge Review Board (AFDRB) for an upgrade to his discharge.

On 30 Jul 19, the AFDRB found insufficient evidence of an inequity or impropriety that would warrant a change to the applicant’s discharge.  Upon review of the applicant’s service record, the board was not able to find any documentation regarding the discharge.  Additionally, the applicant’s contentions were not supported by sufficient evidence to establish the circumstances surrounding the drug test (i.e. command directed contended by applicant).  Since the board relies on the presumption of regularity, it concluded the discharge received by the applicant was appropriate.  After a thorough review of the service record and inputs from the board’s psychiatrist, the AFDRB found no conclusive indication that any mental health issues had a direct impact on the applicant's misconduct or discharge.

On 2 Apr 20, the applicant submitted a reconsideration request to the AFDRB for an upgrade to his discharge.

On 15 Sep 20, the AFDRB found insufficient evidence of an inequity or impropriety that would warrant a change to the applicant’s discharge.  Upon review of the applicant’s service record, the board was not able to find any documentation regarding the discharge.  Since the board relies on the presumption of regularity, it concluded the discharge received by the applicant was appropriate.  After a thorough review of the service record and inputs from the board’s psychiatrist/ psychologist, the AFDRB found no conclusive indication that any mental health issues had a direct impact on the applicant's misconduct or discharge.  Therefore, the discharge received by the applicant was deemed to be appropriate and his request was not approved.

For more information, see the excerpt of the applicant’s record at Exhibit B and the advisories at Exhibits C and G.

POST-SERVICE INFORMATION

On 22 Sep 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); 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 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 20 Sep 21, 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 AFBCMR 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’s entire discharge paperwork was not available for review and so there is no clarifying information surrounding his discharge.  Pertinent information such as when the drug abuse occurred, type of drug used, and whether he had any other misconduct were absent in his records.  Furthermore, the nature of his drug abuse was not reported in the available records as the category of “drug abuse” may include illegal, wrongful, or improper use, possession, sale, transfer, or introduction onto a military installation of any drug according to AFI 36-3209.  The applicant and his legal counsel focused on the alleged illegal or improper use of drugs and stated there was no evidence of a positive drug test.  There was also no evidence of a negative drug test.  Other types of activities of “drug abuse” may have occurred which would not produce any evidence of a drug test.  Since his discharge paperwork is not available for review, all contentions are purely speculative as the objective evidence is missing.  Without these records, it is difficult to definitively conclude there was an actual error or injustice with his discharge.  Since there was no evidence, he had any mental health conditions in service and the applicant denied using any drugs, there is no demonstrated nexus between his mental health condition and discharge.  

The applicant and his legal counsel also allege the applicant had repeatedly requested to resign from the ANG from 2005 to 2008 and his requests were denied by his commanding officer.  They claimed this same commanding officer had sexually harassed the applicant and when he rejected the advances, it was implied to have ramifications to his career and discharge.  There was no evidence to include any witness statements or reports to corroborate the applicant’s claim he was sexually harassed by his commanding officer besides his personal statement, which also did not provide much detailed information regarding the incident.  Given the applicant the benefit of the doubt that he was sexually harassed, there was still no evidence that the experience and his rejection led to adverse impact on his military career.  All of his field grade officer performance reports reported he satisfactorily met standard performances and was even lauded for his achievements, which they had acknowledged.  There was no explanation why his requests for resignation were denied and there could be many reasons.  Again unfortunately, the applicant and his legal counsel have not submitted sufficient evidence to support their allegations.  

Despite the lack of objective evidence, the Board may elect to apply liberal consideration to the applicant’s case due to the contention of sexual harassment.  The following are responses based on information presented in the records to the four questions in the policy:

1. Did the veteran have a condition or experience that may excuse or mitigate the discharge?  The applicant reported he sexually harassed by his commanding officer and implied his rejection to the unwanted sexual advances may have led to his discharge of drug abuse since there was no evidence of any positive drug test. He denied using any drugs.

2. Did the condition exist or experience occur during military service?  There was no objective evidence or witness statements to substantiate his experience of sexual harassment had existed or occurred during military service besides the applicant’s personal testimony.  The applicant claimed he was sexually harassed during service.  The applicant was discharged for drug abuse, which he denied using any drugs.

3. Does the condition or experience excuse or mitigate the discharge?  Giving the applicant the benefit of the doubt that he experienced sexual harassment during service despite the lack of objective evidence, there is still not enough substantiating evidence supporting his experience may cause, excuse or mitigate his discharge. His discharge paperwork is not available for review and so it is difficult to determine if there was any error or injustice with his discharge.

4. Does the condition or experience outweigh the discharge?  Since there is no objective evidence to support his sexual harassment experience may cause, excuse or mitigate his discharge, it is opined his experience also does not outweigh his original 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 15 Sep 21 for comment (Exhibit D), but has received no response.

The applicant’s complete response is at Exhibit F.

ADDITIONAL AIR FORCE EVALUATION

NGB/A1PP recommends denying the application finding no evidence of an error or injustice.  The Secretary of the Air Force (SAF) Instrument that was obtained by the state, directs the applicant be discharged from all appointments held per AFI 36-3209 with an under honorable conditions (general) discharge.  Although pertinent information such as when the drug abuse occurred, type of drug used, and whether he had any other misconduct were absent in his records the Air Force Personnel Council recommended that the discharge authority discharge the applicant per AFI 36-3209, paragraph 2.39.6, based on the evidence presented.

APPLICANT’S REVIEW OF AIR FORCE EVALUATION

The Board sent a copy of the advisory opinion to the applicant on 13 Oct 21 for comment (Exhibit G), but has received no response.

The applicant’s complete response is at Exhibit H.

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 agrees with the recommendations of the AFBCMR Psychological Advisor and NGB/A1PP and finds a preponderance of the evidence does not substantiate the applicant’s contentions.  It appears the discharge was consistent with the substantive requirements of the discharge regulation and was within the commander’s discretion.  Nor was the discharge unduly harsh or disproportionate to the offenses committed.  Absent the applicant’s discharge paperwork and sufficient evidence to establish the circumstances surrounding drug abuse as the reason for his discharge, the Board must rely on the presumption of regularity.  The Board considered upgrading the discharge through the lens of liberal consideration and while the Board does not dispute the applicant’s claim he received an unwelcomed sexual advance from his commanding officer, the Board finds insufficient evidence that it contributed to his character of service or narrative reason for discharge.  In the interest of justice, the Board considered upgrading the discharge based on fundamental fairness; however, given the evidence presented, and in the absence of post-service information provided by the applicant, the Board finds no basis to do so.  Therefore, the Board recommends against correcting the applicant’s record.

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-2021-01240 in Executive Session on 14 Oct 21 and 14 Nov 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 17 Dec 20.
Exhibit B:	Documentary Evidence, including relevant excerpts from official records.
Exhibit C:	Advisory Opinion, AFBCMR Psychological Advisor, dated 26 Aug 21.
Exhibit D:	Notification of Advisory, SAF/MRBC to Applicant, dated 15 Sep 21.
Exhibit E: Letter, SAF/MRBC, w/atchs (Liberal Consideration Guidance), dated 20 Sep 21.
Exhibit F:	Letter, SAF/MRBC, w/atch (Post-Service Request), dated 22 Sep 21.
Exhibit G:	Advisory Opinion, NGB/A1PP w/atch, dated 5 Oct 21.
Exhibit H:	Notification of Advisory, SAF/MRBC to Applicant, dated 13 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 for Docket Number BC-2021-01240.