RECORD OF PROCEEDINGS

IN THE MATTER OF:	DOCKET NUMBER: BC-2021-01486

XXXXXXX	COUNSEL: NONE

	HEARING REQUESTED: YES

APPLICANT’S REQUEST

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

APPLICANT’S CONTENTIONS

His discharge was inequitable because it was too harsh and he was not given a chance to show improvement before being discharge.  He was overly punished and unfairly targeted by his unit.  He did not acclimate well to his new unit and this negatively impacted the nature and character of his discharge.  Because of the difficulty of getting along with his work group, he experienced extreme depression and mental illness, which was untreated at the time and negatively impacted his ability to perform my duties.  He was to separate the Air Force and join the Air National Guard through Force Shaping but his unit unfairly issued an Article 15 two weeks before he was to separate honorably.  He has served honorably in the Army National Guard from 2009 to 2016 where he was seeking mental health treatment through the Department of Veterans Affairs (DVA).

In support of his request for clemency, the applicant provides a personal statement and copies of military awards and performance reports.  On 10 Oct 21, the applicant provide two character reference letters (Exhibit I),

The applicant’s complete submission is at Exhibit A.

STATEMENT OF FACTS

The applicant is a former Air Force airman first class (E-3).

On 8 Jul 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, paragraph 5.49 for misconduct, minor disciplinary infractions.  The specific reasons for the action were:

a.	On 27 Jul 04, Letter of Counseling (LOC) was issued for failure to go.

b.	On 23 Sep 04, Letter of Reprimand (LOR) was issued for failure to go and misconduct.

c.	On 13 Nov 04, LOC was issued for misconduct.

d.	On 9 Dec 04, a Record of Individual Counseling (RIC) shows you were counseled for a dereliction of duty.

e.	On 25 Apr 05, RIC shows you were counseled for failure to go.

a.	Dated 31 May 05, AF Form 3070, Record of Nonjudicial Punishment Proceedings, indicates applicant received nonjudicial punishment, Article 15 for failure to go on three separate occasions.  He received a reduction in grade to airman first class (E-3) and 45 days of extra duty.

Not dated, the Staff Judge Advocate found the discharge action legally sufficient.

On 25 Jul 05, the discharge authority directed the applicant be discharged for misconduct, with a general service characterization.  Probation and rehabilitation was not considered or offered.

On 26 Jul 05, the applicant received a general (under honorable conditions) discharge.  His narrative reason for separation is “Misconduct” and he was credited with 2 years, 11 months, and 7 days of total active service.

On 1 Sep 09, the applicant submitted a request to the Air Force Discharge Review Board (AFDRB) for an upgrade to his discharge.

On 10 Mar 11, the AFDRB concluded the discharge was consistent with the procedural and substantive requirements of the discharge regulation and was within the discretion of the discharge authority and the applicant was provided full administrative due process. 

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

POST-SERVICE INFORMATION

On 16 Aug 21, the Board sent the applicant a standard request for post-service information. This letter informed the applicant that a Federal Bureau of Investigation (FBI) background check would assist the Board in evaluating his case.  Although the applicant did reply to the request for post-service information (Exhibit G), his response did not include an FBI background check or other criminal history data.

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 16 Aug 21, the 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 recommends denying the applicant’s request finding insufficient evidence to support a discharge upgrade based on his mental health contention.  The applicant did not make any mental health contentions in his AFDRB application.  The applicant did not submit any medical or mental health records to substantiate his claims of “extreme depression and mental illness” during his time in service.  Based upon the records available, there is no evidence the applicant was diagnosed with depression during his time in service.  According to the records, the applicant attended a Healthy Thinking group at the Life Skills clinic but was not referred (by himself or by the group facilitators) for further mental health services.  The applicant was never placed on a duty limiting conditions profile for Adjustment disorder, there is no record of the applicant being prescribed any medications or individual therapy for any mental health condition.  He was never deemed not worldwide qualified due to a mental health condition, and there is no evidence a medical evaluation board (for a mental health condition) was initiated or was being considered for the applicant prior to his discharge.  The applicant’s performance reports and statements by his leadership do not indicate his performance was impaired by a mental health condition.  To the contrary, the applicant’s leadership noted he should be considered for promotion during the 18 Mar 04 through 17 Mar 05 rating period.  In the narrative of the Article15, the commander stated “you have made poor choices and you should now be prepared to accept the consequences of your actions.”  The applicant’s rebuttal to the Article 15 did not include any statements about how his mental health impacted his behavior or conduct; rather, he stated that he accepted the nonjudicial punishment, contested that he was late on one of the accused dates, and stated he felt the punishment was too harsh for the offenses.  

The applicant presented to the Department of Veterans Affairs, (DVA) for mental health services in 2015 (ten years post discharge).  In an intake note, dated 12 May 15 the DVA provider stated the applicant sought treatment “once he entered law school at Temple University in the spring of 2014.  He stated that his predominant symptoms included anxiety and fearfulness which manifest with stomach tightness and gastroesophageal reflux and vomiting.  He sought treatment through student health at Temple University and was in therapy weekly and received treatment with Zoloft with a resultant decreased anxiety.  He cites the main sources of stress at this time include: finances, being a single father and schoolwork.  He is enrolled in the National Guard and receives financial benefits, including tuition, for his service.  Because of scheduling conflicts, he was unable to continue receiving treatment at student health and consequently has not been taking Zoloft for the past two months.  He has noticed a recurrence of significant anxiety and would like to get back on medication and get back into therapy.  He admits to smoking marijuana perhaps once weekly and has 2-3 drinks of alcohol 1-2 times monthly.  He denies symptoms of persistently depressed mood and he denies suicidal or homicidal thoughts, intent or plan.  Based on the available evidence, it is more likely than not, the applicant’s mental health condition developed post service.  The board may elect to apply liberal consideration to the applicant’s request due to his contention of a mental health condition, however, he did not provide any evidence to substantiate his claim that his mental health condition caused his misconduct thus his condition does not mitigate, outweigh, or excuse his discharge due to misconduct.

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 16 Aug 21 for comment (Exhibit D), and the applicant replied on 21 Sep 21.  In his response, the applicant contends his Air Force career ended prematurely primarily due to his conduct which was impacted by his lack of maturity and his leadership’s failure to adequately address his mental health.  His discharge should be upgraded because it was for minor infractions and did not take into account his mental health at the time.  Since his discharge he has done his best to rehabilitate his character and moral standing in society by becoming a member of the Army National Guard,  graduated from Rutgers Law School, passed the bar exam in two states, and volunteers with his church and the Boy Scouts of America, and is an officer with the Freemasons.

In support of his request, the applicant submitted additional new evidence: (1) a revised Personal Statement; (2) Employee Assistance Program Evaluation; and (3) Mental Health Treatment Records.

The applicant’s complete response is at Exhibit F.

ADDITIONAL AIR FORCE EVALUATION

The AFBCMR Psychological Advisor reviewed and considered the information in the applicant’s rebuttal statement and additional evidence submitted and found insufficient evidence to support the applicant’s request for a change to his records.  The additional evidence submitted included a personal statement to which the applicant felt his discharge was excessively harsh and did not take his mental health into consideration.   Along with this statement, the applicant submitted documentation that he was required, in 2016, by the Pennsylvania Bar Association to participate in an EAP evaluation due to a driving under the influence (DUI) in 2011, and failed drug screen in 2011 and 2015 cannabis use.  The applicant’s responded to the EAP referral form “I want the board to know that I do take responsibility for the mistakes that I made…I am an honest person. I do the best that I can and do more right than wrong. I am not irresponsible.” In response to “client’s perception of the problem” the applicant referenced “lack of awareness” and “poor decision making.”  As stated in the previous advisory, the applicant did not submit any medical or mental health records to substantiate his claims of “extreme depression and mental illness” during his time in service.  The additional documents submitted by the applicant reveal he sought mental in/around 2013, twelve years post discharge.  Also as stated in the previous advisory, based on the available evidence, it is more likely than not, the applicant’s mental health condition developed post service.  

The complete advisory opinion is at Exhibit H.

APPLICANT’S REVIEW OF ADDITIOANL AIR FORCE EVALUATION

The Board sent a copy of the additional advisory opinion to the applicant on 18 Oct 21 for comment (Exhibit I), 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.  The Board concurs with the rationale and recommendation of the AFBCMR Psychological Advisor 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-2021-01486 in Executive Session on 20 Oct 21 and 30 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/atchs, dated 21 Jan 21.
Exhibit B:	Documentary Evidence, including relevant excerpts from official records.
Exhibit C:	Advisory Opinion, AFBCMR Psychological Advisor, dated 27 Jul 21. 
Exhibit D:	Notification of Advisory, SAF/MRBC to Applicant, dated 16 Aug 21.
Exhibit E: Letter, SAF/MRBC, w/atchs (Post-Service Request and Liberal Consideration  
                  Guidance), dated 16 Aug 21.
Exhibit F:	Applicant’s Response, w/atchs, dated 21 Sep 21.
Exhibit G:  Additional Evidence from Applicant, 10 Oct 21.
Exhibit H:	Advisory Opinion, AFBCMR Psychological Advisor, dated 18 Oct 21.
Exhibit I:	Notification of Advisory, SAF/MRBC to Applicant, dated 18 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.