AIR FORCE DISCHARGE REVIEW BOARD DECISIONAL DOCUMENT  
	CASE NUMBER

FD-2021-00557	
					
SUMMARY: 

The applicant was discharged on 21 September 2017 in accordance with AFI 36-3208 with a General Discharge for Misconduct (Drug Abuse). The applicant appealed for an upgrade of his discharge characterization, a change to the discharge narrative reason, and a change to the reenlistment eligibility code.  The Board was conducted on 13 January 2022.

The applicant was represented by counsel.    

The applicant requested the board be completed base on a records review only.

The attached examiner’s brief (provided to applicant only), extracted from available service records, contains pertinent data regarding the circumstances and character of the applicant’s military service. 

DISCUSSION:  The DRB, under its responsibility to examine the propriety and equity of an applicant’s discharge, is authorized to change the characterization of service and the narrative reason for discharge if such changes are warranted.  If applicable, the board can also change the applicant’s reenlistment eligibility code.  In reviewing discharges, the board presumes regularity in the conduct of governmental affairs unless there is substantial credible evidence to rebut the presumption, to include evidence submitted by the applicant.  The Board completed a thorough review of the circumstances that led to the discharge and the discharge process to determine if the discharge met the pertinent standards of equity and propriety.  

The applicant’s record of service included an Article 15.  His misconduct included:  Wrongfully used Oxymorphone, a schedule II controlled substance.

The applicant and counsel contended that the member’s use of the medication was not wrongful by definition as he used it for a medical purpose. They also contend that the applicant met all 7 retention criteria and therefore shouldn’t have been separated. They contended that this was an isolated incident and thus did not warrant a General Characterization. And lastly, they contended that liberal consideration should be applied since the member was diagnosed with anxiety disorder and it occurred during service. 

The DRB determined that sufficient evidence existed to convince the board that the discharge was improper. Specifically, after a thorough review of the medical record, it found that the applicant had ongoing pain issues even after being in compliance with medical recommendations. In consideration of the aggravating and mitigating facts related to the record from which the applicant requested relief, the DRB concluded there is basis for upgrade due to mitigating medical circumstances.  

LIBERAL CONSIDERATION:

Due to evidence of a mental health condition found in the applicant’s medical record, the Board considered the case based on the liberal consideration (LC) standards required by guidance from the Office of the Under Secretary of Defense for Personnel and Readiness and 10 USC §1553.  The Board included a member who is a physician, clinical psychologist, or psychiatrist.  Specifically, the Board reviewed the four questions the Under Secretary of Defense provided that boards should consider when weighing evidence in requests for modification of discharges due in whole or in part to mental health conditions, including post-traumatic stress disorder (PTSD); Traumatic Brain Injury (TBI); sexual assault, and sexual harassment.  The Board considered the following: 

1. Did the veteran have a condition or experience that may excuse or mitigate the discharge? 
Yes, although there is no evidence the applicant had any mental health conditions or sought MH treatment prior to testing positive for prescription medications not prescribed to him, there is evidence the applicant may have had EPTS conditions. There is evidence the applicant sought mental health treatment after he came under investigation for drug abuse.  

2. Did that condition exist/experience occur during military service? 
Yes, the applicant’s mental health records reveal he did not meet criteria for PTSD in service, but the applicant was diagnosed with Adjustment disorder during his time in service.

3. Does that condition or experience actually excuse or mitigate the discharge? 
There is evidence the applicant’s PTSD was an EPTS condition, there is no evidence or records to suggest a mental health condition caused the misconduct that lead to the applicant’s discharge.

4. Does that condition or experience outweigh the discharge? 
There is no evidence the applicant’s mental health condition outweighs the discharge.

Additionally, the Board considered the factors laid out in the attachment to the Under Secretary of Defense memorandum, Guidance to Military Discharge Review Boards and Boards for Correction of Military/Naval Records Regarding Equity, Injustice, or Clemency Determinations, dated 25 June 2018, known as the “Wilkie Memo.”  The Board considered the factors listed in paragraphs (6)(a)-(6)(l) of this memorandum, and concluded the following with regard to each factor: 
 
(6)(e). A veteran’s or Service member’s sworn testimony alone, oral or written, may establish the existence of a fact supportive of relief.
The applicant’s testimony regarding the reason for the use of the prescription drug, coupled with evidence from the member’s medical record was sufficient to support the upgrade of the member’s discharge.

(6)(k). Relief is generally more appropriate for non-violent offenses than for violent offenses.
In this instance, the misconduct of taking a prescription pill for the relief of his ongoing pain was an isolated offense and was not violent in any way.   

FINDING:  The DRB voted unanimously to approve the applicant’s request to upgrade his discharge characterization to Honorable and to change the discharge narrative reason to Secretarial Authority. The reenlistment eligibility code was changed to a 2C. 

CONCLUSION:  After a thorough review of the available evidence, to include the Applicant’s contentions, summary of service, service/medical record entries, and discharge process, the Board found the discharge was improper. Therefore, the awarded characterization of service shall change to Honorable, the narrative reason for separation shall change to Secretarial Authority, and the reentry code shall change to 2C. The AFDRB results were approved by the board president on 29 January 2022.  If desired, the applicant can request a list of the board members and their votes by writing to:  

Air Force Review Boards Agency
Attn: Discharge Review Board
3351 Celmers Lane
Joint Base Andrews, NAF Washington, MD 20762-6602  
Instructions on how to appeal an AFDRB decision can be found at 
https://afrbaportal.azurewebsites.us

Attachment:
Examiner's Brief (Applicant Only)