RECORD OF PROCEEDINGS

IN THE MATTER OF:	DOCKET NUMBER: BC-2021-01388

XXXXXXXXXXX	COUNSEL: XXXXXXXXXXX

	HEARING REQUESTED: NO

APPLICANT’S REQUEST

His discharge be upgraded to a medical retirement.

His narrative reason for separation of “Personality Disorder,” be changed.
 
APPLICANT’S CONTENTIONS

As a result of his administrative discharge, he was denied a medical retirement and was not processed through the Disability Evaluation System (DES) due to his medical condition of Cyclothymia.  He was discharged for a personality disorder, which he does not have.  After seeking medical help in 2000 due to stressors in his life, he was diagnosed with an adjustment disorder with depressed mood.  Due to these stressors and his pending divorce, his behavior and judgement suffered resulting in a driving under the influence (DUI) and an Article 15.  Due to his erratic behavior, a command directed evaluation was conducted.  A mental health provider deemed him unfit for military service, suffering from adjustment disorder with mixed disturbance of emotions and conduct.  Due to this recommendation, he was administratively separated from the service.  In 2006, the Department of Veterans Affairs (DVA) diagnosed him with Cyclothymia, with a 30 percent service-connected disability rating.

The applicant’s complete submission is at Exhibit A.

STATEMENT OF FACTS

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

On 20 Oct 05, the applicant’s commander recommended the applicant be discharged from the Air Force, under the provisions of AFI 36-3208, Administrative Separation of Airmen.  The specific reasons for the action were:
	
a.	On 9 Feb 01, AF Form 3070, Record of Nonjudicial Punishment (NJP) Proceedings, indicates the applicant received NJP, Article 15, for two counts of disrespectful behavior.  He received a reduction in grade to senior airman (E-4), suspended until 8 Aug 01, and forfeiture of $100.00 pay, and a reprimand.

b.	On 16 Feb 05, Letter of Admonishment (LOA) was issued for allowing a subordinate’s spouse to move into his house while knowing the couple was having marital problems.

c.	On 14 Mar 05, AF Form 3070, indicates applicant received NJP, Article 15, for disrespectful behavior and dereliction of duty.  He received a reduction to the grade of  staff sergeant (E-5), suspended until 18 Feb 06, forfeiture of $100.00 pay, and a reprimand.  

d.	On 19 Aug 05, Letter of Counseling (LOC) was issued for failure to go.

e.	On 15 Aug 05, a Command Directed Evaluation (CDE), indicated the applicant was recommended for an administrative separation due to a manifested, long-standing, disorder of character behavior and adaptability that was so severe that his ability to function effectively in the military was significantly impaired.

On 9 Nov 05, the discharge authority directed the applicant be discharged for a condition that interferes with military service (mental disorder), with an honorable service characterization.  Probation and rehabilitation was not warranted in this case.

On 18 Nov 05, the applicant received an honorable discharge.  His narrative reason for separation is “Personality Disorder” and he was credited with 12 years, 5 months, and 11 days of total active service.

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

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 27 Apr 21, the Board staff provided the applicant a copy of the liberal consideration guidance (Exhibit C). 

AIR FORCE EVALUATION

The AFBCMR Psychological Advisor recommends denying the applicant’s request finding insufficient evidence to support a medical retirement based on his mental health contention.  This psychological advisor does, however, support a change to the applicant’s narrative reason for separation on his DD Form 214 to “Condition, Not A Disability” from his present reason of “Personality Disorder.”  The applicant contends, through counsel that his medical history does not fit within the Diagnostic and Statistical Manual of Mental Disorders (DSM IV TR) definition of a personality disorder.  Considering the applicant’s service record in totality, not just his medical record, at the snapshot in time in which the CDE was conducted appropriately warranted the diagnosis of personality disorder.  Furthermore, as noted by the evaluating psychologist, “he has expressed motivation only to reduce his current stressors but has poor insight into this contributions in his current circumstances.  His propensity to externalize blame and draw empathy for his current situation suggests he is poor candidate for successful treatment aimed at reducing antisocial and narcissistic traits.”  A historical look at the applicants encounters with Social Actions, and mental health suggests a similar pattern and prognosis.  The applicant contends, through counsel, the diagnosing psychologist did not follow DSM IV protocol in finding a personality disorder diagnosis.  In 2005, the mental health provider cited the applicable references used in arriving at the diagnoses and recommendations.  While this evaluation was conducted on a “command directed” request subsequent to the applicant making threats to harm another airman, this psychological advisor concurs, based on the available records, with the CDE evaluator.  The applicant’s pattern of behavior, both self-disclosed dating back to age 13 with his pattern of illegal behaviors and documented pattern of misconducts and willful disregard for the rights of others in service, along with the psychological testing and interview of other personnel, support the applicant’s diagnosis of personality disorder.  

The applicant contends, through counsel, that his diagnosis of Cyclothymia accounts for all his behaviors that allegedly resembled a personality disorder and he should have been afforded DES processing, which would have resulted in a medical retirement.  There is no evidence or records the applicant was diagnosed with Cyclothymia in service.  There is no evidence or records the applicant sought or received any mental health treatment between 2001 and 2005. There is no evidence or records the applicant sought or received any mental health treatment aside from instances in which the applicant was also involved in a legal issue.  There were no statements from the applicant’s leadership (in EPRs or other statements) of how his mental health condition interfered with his ability to perform his military duties.  There is no evidence to suggest that, based on the available records, at any time the applicant’s mental health symptoms rose to the level of an unfitting mental health condition.  To the contrary, the applicant’s leadership and unit peers commented that the applicant’s off-duty conduct and interpersonal relationships were his primary hindrance and his work performance was satisfactory or above.  The applicant was diagnosed with a personality disorder, which is an unsuiting and non-compensable condition that leads to an administrative separation.  The applicant, through counsel, contends that his entry examination records and length of service in the Air Force do not support a dismissal for a personality disorder.  The applicant’s pattern of conduct and behavior over his service career supports the diagnoses and statements rendered in the CDE.  “He is likely to be perceived as charming and hardworking and will behave as such until it is no longer beneficial to him.  He is also likely to rationalize his illegal and/or unprofessional behaviors to draw empathy from others. Examples of such behavior include overtly asking his previous therapist to diagnose him with a specific phobia in order to be removed from Air Traffic Control.  The applicant’s personality disorder and traits likely caused his behavior and misconduct issues in service and are considered incompatible for military service.  Personality disorders and traits are conditions of a developmental nature; they are pervasive, stable, persistent, and often resistant to treatment.  It is unlikely that persistent maladaptive and manipulative behaviors such as those exhibited by the applicant would be caused by an Axis I disorder, nor would be revealed through an entrance physical examination.  For awareness the military’s Disability Evaluation System, can by law under Title 10, United States Code (U.S.C), only offer compensation for those service-incurred diseases or injuries which specifically rendered a member unfit for continued active service and were the cause for career termination; and then only to the degree of impairment present at the “snapshot in time” of separation from service and not based on post-service progression of disease or injury.  There is no evidence or records to substantiate that the applicant had any unfitting mental health conditions. In contrast, the VA, operating under a different set of laws, Title 38, U.S.C., is empowered to offer compensation for any medical condition with an established nexus to military service, without regard to its impact on a member’s fitness to serve, the narrative reason for release for service, or the length of time that has transpired since the date of discharge.  The DVA may also conduct periodic reevaluations for the purpose of adjusting the disability rating as the level of impairment from a given condition may improve or worsen over the life of the veteran.  The Board may elect to apply liberal consideration to the applicant’s request due to his contention of a mental health condition if the Board finds the applicant’s argument compelling.  Although the applicant’s diagnosis of personality disorder may have caused his discharge, it does not excuse his discharge nor does it outweigh the discharge. The applicant was found to have a condition that was unsuiting for military service and was appropriately administratively separated.

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 30 Jul 21 for comment (Exhibit E), but has received no response.

FINDINGS AND CONCLUSION

1.  The application was not timely filed, but it is in the interest of justice to excuse the delay.

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 the victim of an error or injustice.  The Board concurs with the rationale and recommendation of AFBCMR Psychological Advisor and finds a preponderance of the evidence substantiates the applicant’s contentions in part.  Specifically, based upon the equity that “Personality Disorder” is no longer utilized as a narrative reason for separation; this is sufficient to justify granting the applicant’s request to change his narrative reason for separation to “Condition, Not A Disability.”  However, for the remainder of the applicant’s request, the evidence presented did not demonstrate an error or injustice, and the Board therefore finds no basis to recommend granting that portion of the applicant’s request.  Therefore, the Board recommends correcting the applicant’s records as indicated below.

RECOMMENDATION

The pertinent military records of the Department of the Air Force relating to the APPLICANT be corrected to show that his DD Form 214, Certificate of Release or Discharge from Active Duty, Block 26, Separation Code be changed to “JFV” and Block 28, Narrative Reason for Separation be changed to “Condition, Not A Disability,” under the provisions of AFI 36-3208,  Administrative Separation of Airmen.  

However, regarding the remainder of the applicant’s request, the Board recommends informing the applicant the evidence did not demonstrate material error or injustice, and the application will only be reconsidered upon receipt of relevant evidence not already considered by the Board.

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-2021-01388 in Executive Session on 6 Oct 21:

, Panel Chair
, Panel Member
, Panel Member

All members voted to correct the record.  The panel considered the following:

Exhibit A:	Application, DD Form 149, w/atchs, dated 6 Jan 21.
Exhibit B:	Documentary evidence, including relevant excerpts from official records.
Exhibit C:	Advisory opinion, AFBCMR Psychological Advisor, dated 24 Jun 21.
Exhibit D:	Notification of advisory, SAF/MRBC to applicant, dated 30 Jul 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.