RECORD OF PROCEEDINGS

IN THE MATTER OF:	DOCKET NUMBER: BC-2022-00601

XXXXXXXXXXXXXX	COUNSEL: NONE
	
	HEARING REQUESTED: NO

APPLICANT’S REQUEST

Reconsideration of the 2 Mar 20 grade determination under the provisions of Title 10 United States Code, Section 8964 (10 U.S.C. § 8964)  and Secretary of the Air Force Personnel Council (SAFPC) Memorandum, dated 23 Jul 19.  

APPLICANT’S CONTENTIONS

He accepts the grade reduction before his retirement, but during his retirement he was just beginning treatment for post-traumatic stress disorder (PTSD) and was not in the right frame of mind to provide information requested for the SAFPC grade determination proceedings.  While on active duty he was an Independent Duty Medical Technician (IDMT) and felt a responsibility to take care of patients and his squadron members, which made him hide his condition (diagnosed with PTSD about a year or so before retirement), feeling that others would question his ability to take care of their medical needs, if they knew he was being treated.  He is currently rated 100 percent disabled for PTSD by the Department of Veterans Affairs (DVA) and Social Security Administration (SSA).  

The applicant’s complete submission is at Exhibit A.

STATEMENT OF FACTS

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

On 8 Apr 19, the applicant was rendered nonjudicial punishment (NJP) Article 15: Reprimand, and demotion to technical sergeant, with new date of rank of 8 Apr 19.  The reason for the action was he willfully failed to follow AFI 36-2706, Equal Opportunity Program Military and Civilian, paragraph 1.2., by wrongfully failing to refrain from sexually harassing an Air Force junior enlisted member for approximately two months, in violation of Article 92, Uniform Code of Military Justice (UCMJ).

On 15 Apr 19, the applicant appealed his reduction in rank.  

On 30 Apr 19, the Appellate Authority denied the applicant’s appeal.  

On 31 May 19, Special Orders No. AC – XXXXXX, relieved the applicant from active duty, retiring him effective 1 Jun 19, in the rank of technical sergeant, having served 20 years, 5 months, and 2 days of active service.  

On 23 Jul 19, SAFPC, on behalf of the Secretary of the Air Force, determined the applicant did not serve satisfactorily in any higher rank than technical sergeant and will not be advanced on the retired list under the provisions of 10 U.S.C. § 9344 (prior to Aug 18, this statute was numbered 10 U.S.C. § 8964).

On 2 Mar 20, Special Orders No. AC –XXXXXX were issued amending his retirement orders with the following remarks: The Secretary of the Air Force determined [Applicant] will not be advanced to any higher grade under the provisions of 10 U.S.C. § 8964, and SAFPC Memorandum, dated 23 Jul 19.  

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

AIR FORCE EVALUATION

SAF/MRBP recommends denying the application.  While the applicant contends he sought PTSD treatment approximately six years after his noted traumatic event of a failed civilian kayaking rescue in Nov 13, he took responsibility for sexually harassing an Air Force junior enlisted member for approximately two months in 2018, resulting in an Article 15 and demotion to E-6.  He does not present any evidence that his PTSD contributed to his sexual harassment misconduct.  

In accordance with AFI 36-3203, Service Retirements, paragraph 8.5.1., “When Regular enlisted members’ and certain reserve enlisted members’ active service plus service on the retired list totals 30 years, they may be advanced on the retired list to the highest grade served on active duty satisfactorily and receive retired pay in that grade, as determined by the Secretary of the Air Force or designee under 10 U.S.C. § 9344 (previously numbered 10 U.S.C. § 8964).”  The applicant retired on 1 Jun 19 and his record met the Air Force Personnel Board on 12 Jul 19, for consideration for advancement on the retired list.  After weighing the applicant’s misconduct against his accomplishments while holding the rank of master sergeant (E-7), the board majority determined the applicant did not serve in that rank satisfactorily; therefore, he would not be advanced to the higher grade upon his 30 years of service date (29 Dec 28).  The Air Force Personnel Center notified him of the decision in Jul 19. 

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 8 Jul 22 for comment (Exhibit D) but has received no response.

AIR FORCE EVALUATION

The AFRBA Psychological Advisor finds insufficient evidence to support the applicant’s request.  The applicant accepts his grade reduction before his retirement but is requesting reconsideration of his grade determination by SAFPC.  He contends he was just beginning treatment for PTSD at the time of the grade determination and was not in the right frame of mind to “provide the information necessary” for the proceedings.  The applicant's available case file was reviewed, including records he provided with his appeal package and those found in various electronic systems, such as the Joint Legacy Viewer and the Armed Forces Health Longitudinal Technology Application.  The applicant’s record, while generally outstanding during much of his service, revealed he received the following disciplinary actions towards the end of his career while a master sergeant:

a. Letter of Reprimand/Unfavorable Information File with subsequent Referral Enlisted Performance Report, dated 14 Nov 17, for unprofessional behavior which, created the appearance of favoritism and improper association.

b. Article 15 on 11 Mar 19 for violation of the UCMJ, Article 92; Failure to Obey an Order or Regulation by willfully failing to follow Air Force Instruction 36-2706, paragraph 1.2 by wrongfully failing to refrain from sexually harassing a female Air Force member between approximately 1 Sep 18 to 31 Oct 18. 

The applicant’s service treatment record revealed:

a. 14 May 98: Psychiatric evaluation was performed at the time of entry to military service due to reported “anger control” issues at school.  No detailed records available but applicant was cleared to enlist.

 b. 15 Jan 10: The applicant completed an intake for command-directed Alcohol and Drug Abuse Prevention and Treatment program due to an alcohol-related incident whereby he made unwanted advances toward a female co-worker.  He completed several sessions and was discharged later that month.

c. 1 Mar 17 to 19 Jul 17: The applicant was evaluated for a possible Depersonalization/Derealization disorder, after he reported symptoms present since his 2006 Afghanistan deployment, that included “episodes of feeling like he was floating outside his body and not making decisions.”  Also, he reported changes in his behavior, difficulty discerning right from wrong, and doing things out of character.  He attributed these symptoms to the anti-malarial agent he received during his 2006 deployment.  Extensive tests, lab work, head scans, and neuropsychiatric tests did not reveal any organic pathology and did not support the diagnosis of a Depersonalization/Derealization disorder.  

d. 7 Dec 18 to 18 Mar 19: The applicant re-engaged with Mental Health, reporting previous similar concerns, with the addition of PTSD-like symptoms related to a prior failed rescue of a civilian kayaker in Nov 13.  He was diagnosed with an Unspecified Anxiety disorder and an Other Specified Trauma disorder.  It appears he did well with anti-anxiety and sleep medication, as his symptoms improved, and the provider noted his “PTSD-like symptoms do not meet threshold for that diagnosis.”  

The applicant’s post service treatment record revealed in Jul 19, he completed a self-referred intake to receive mental health treatment from the DVA, approximately two months post retirement, “due to having to continue meds he has found effective to assist him with PTSD symptoms that resulted from the Nov 13 failed rescue mission.”  Subsequently, he was diagnosed with PTSD and a persistent depressive disorder and received a 100 percent disability rating for this condition from both the DVA and the SSA.

While a review of the applicant’s service and post-service medical records did indicate ongoing treatment for various mental health conditions since at least Mar 17, there was no evidence he was mentally impaired during the period when the misconduct occurred (Sep/Oct 18) or when he was subject to NJP proceedings and the subsequent SAFPC grade determination.  Liberal consideration has been applied to this application due to the contention of a mental health condition. The following are questions/answers from the policy memorandum based on the available records for review:

a. Did the veteran have a condition or experience that may excuse or mitigate the discharge?  During the year prior to the misconduct, the applicant was treated for vague psychiatric symptoms and was evaluated for a possible Depersonalization disorder, his symptoms improved and he ultimately received no diagnosis.

b. Did the condition exist, or experience occur during military service?  The year prior to the applicant’s retirement, he was diagnosed with an Unspecified Anxiety disorder and Other Specified Trauma disorder, which were deemed to be related to trauma he experienced during military service.  Post-service DVA records endorsed a diagnosis of PTSD, although he did not previously appear to meet criteria for this condition.

c. Does the condition or experience excuse or mitigate the discharge?  The applicant acknowledged responsibility for his misconduct and did not contend any mental health condition mitigated it.  Also, there is no evidence in his records that he was mentally impaired at the time of his retirement and unable to appropriately represent his interests. A Mental Health Termination of Care Summary written at the time of his retirement noted he did not meet PTSD criteria and was functioning well, with a good prognosis. 

	d. Does the condition or experience outweigh the discharge?  The applicant’s mental health condition did not excuse or mitigate the circumstances surrounding his reduction in rank, nor outweigh SAFPC’s decision to deny advancement on the retired list.  

There is insufficient evidence to support the applicant’s request for reconsideration of his grade determination, namely that he be advanced on the retired list to his highest rank held of master sergeant.  

The complete advisory opinion is at Exhibit E.

APPLICANT’S REVIEW OF AIR FORCE EVALUATION

The Board sent a copy of the advisory opinion to the applicant on 15 Aug 22 for comment (Exhibit F), 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 opinion of the AFRBA Psychological Advisor that there is insufficient evidence the applicant’s mental health condition excused or mitigated the circumstances surrounding his misconduct. The applicant contends he sought PTSD treatment approximately six years after a failed kayaking rescue in Nov 13.  However, he took responsibility for sexually harassing an Air Force junior enlisted member for approximately two months in 2018,  resulting in his demotion to the rank of technical sergeant.  The applicant does not present any evidence his PTSD contributed to his misconduct for sexual harassment, NJP proceedings, or the subsequent SAFPC grade determination not to advance him on the retired list.  SAFPC weighed the applicant’s misconduct against his accomplishments while holding the rank of master sergeant and determined he did not serve in that rank satisfactorily.  Therefore, the Board concurs with the rationale and recommendation of SAF/MRBP and finds a preponderance of the evidence does not substantiate the applicant’s contentions. Lastly, the Board is satisfied that the application of liberal consideration does not warrant relief.  In view of the forgoing, the Board recommends against correcting the applicant’s record.

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-2022-00601 in Executive Session on 20 Oct 22:

, 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 14 Feb 22.
Exhibit B:	Documentary evidence, including relevant excerpts from official records.
Exhibit C:	Advisory Opinion, SAF/MRBP, dated 7 Jul 22.
Exhibit D:	Notification of Advisory, SAF/MRBC to Applicant, dated 8 Jul 22.
Exhibit E:	Advisory Opinion, AFRBA Psychological Advisor, dated 15 Aug 22.
Exhibit F:	Notification of Advisory, SAF/MRBC to Applicant, dated 15 Aug 22.

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.