AIR FORCE DISCHARGE REVIEW BOARD DECISIONAL DOCUMENT  
	CASE NUMBER

FD-2021-00637	
					
SUMMARY: 

The applicant was discharged on 23 August 2011 in accordance with AFI 36-3208 with a General Discharge for Misconduct (Minor Infractions). The applicant appealed for an upgrade of her discharge characterization, a change to the discharge narrative reason, and a change to the reenlistment eligibility code.

The applicant appeared and testified before the Discharge Review Board (DRB), with counsel, via video teleconference using Zoom on 5 April 2022. No witnesses were present to testify on the applicant’s behalf. 

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 multiple Letters of Reprimand.  Her misconduct included:  involved in a motor vehicle accident, left the scene, and failed to report it; had an unprofessional relationship with a married Airman; derelict in the performance of duties by failing to assist with entry control; used position of authority to harass fellow Airmen in an attempt to gain information that was not related to duty; and disobeyed a direct order on how to handle an incident.

The applicant through counsel contended that although she admits to her multiple mistakes, her misconduct was a direct result of being sexually assaulted by a fellow Airman. She highlighted that she was never accused of any misconduct prior to March of 2011, approximately 3 months after the assault. 

During the personal appearance, the applicant stated that she wanted this upgrade for herself. She wanted to feel the wrong was righted. When asked about mental health treatment, the applicant stated that she saw counselors but the provider kept changing and she essentially had to restart the treatment every time. Because of this, she felt it wasn’t beneficial and did not return. The applicant highlighted that after the investigation, she was treated differently and they were out to get her because the accused was also a member of her career field. During the closing statement, counsel concluded that OSI didn’t take the investigation seriously and they searched medical records without the applicant’s consent. Counsel also highlighted the main contention, which was that the misconduct was due to the sexual assault that the applicant experienced. 

The DRB reviewed the applicant’s entire service record and found no evidence of impropriety or inequity to warrant an upgrade of the discharge.  The Board acknowledged that the experience of the sexual assault may have mitigated the misconduct. However, it does not completely excuse the continuous pattern of misconduct that the applicant had during her short time in service. Additionally, the applicant did not provide any evidence to indicate that her chain of command acted in a manner that was inequitable or improper regarding the circumstances surrounding her discharge.  The applicant acknowledged that assault occurred, but did not provide any evidence in her testimony nor was there any in her record to indicate that the misconduct in the applicant’s record was inappropriately addressed by her leadership. Thus, the Board deemed the characterization of the discharge received by the applicant to be appropriate.

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? 

The applicant contended “I was sexually assaulted by a fellow Airman, and my misconduct was a direct result of being sexually assaulted.”
 
2. Did that condition exist/experience occur during military service? 

There is evidence the applicant reported a sexual assault during her time in service. The applicant signed a “declination of intent to cooperate”; she acknowledged that AFOSI opened an investigation, but she refused to talk to investigators and declined to pursue criminal charges. 

3. Does that condition or experience actually excuse or mitigate the discharge? 

There is evidence the applicant reported a sexual assault during her time in service. The applicant was discharged due to misconduct (minor infractions), with five documented incidents of misconduct during her fourteen months of service. Based on available records, there is no evidence of a mitigating nexus between the applicant’s experience of military sexual assault and the misconduct(s) that led to her discharge.  

The applicant stated in her written application statement “While I stand by what I wrote in rebuttal to the UIFs contained in my Military Record, all of my misconduct is related to the effects of my sexual assault. I would like to highlight the fact that I was never accused of any misconduct until 19 March 2011, which was approximately three months after my sexual assault.” This statement is inconsistent with the timeline provided earlier in her statement. More to the point, the applicant did not report the sexual assault when it occurred, and declined to participate in or receive investigative or SARC services when the incident was reported by a third party. Additionally, the applicant was involved in mental health services but at no time mentioned to providers the impact of the sexual assault; rather, the focus of the applicant’s session was on difficulty adjusting to her new base environment, trying to find friends, and not feeling challenged by her job. The applicant expressed minimal interest in mental health therapy during her time in service.  

4. Does that condition or experience outweigh the discharge? 

Although there is evidence the applicant’s experience of military sexual assault may have mitigated her discharge, it does not outweigh it. The severity and continuous nature of the applicant’s acts of misconduct do not outweigh the characterization of service or narrative reason for separation. 

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)(h).  Requests for relief based in whole or in part on a mental health condition, should be considered for relief on equitable, injustice, or clemency grounds whenever there is insufficient evidence to warrant relief for an error or impropriety.

The applicant stated that the misconduct was a direct result of the sexual assault. Although the experience of sexual assault mitigates the misconduct, it does not outweigh it. The member had a pattern of various infractions that started just after arrival to her first base. 

FINDING:  The DRB voted unanimously to deny the applicant’s request to upgrade her discharge characterization to Honorable, to change the discharge narrative reason to Secretarial Authority, and to change the reenlistment eligibility code to 2C or 3K.
 
CONCLUSION:  After a thorough review of the available evidence, to include the Applicant’s issues, summary of service, service/medical record entries, and discharge process, the Board found the discharge was proper. Therefore, the awarded characterization of service shall remain General, the narrative reason for separation shall remain Misconduct (Minor Infractions), and the reentry code shall remain 2B. The AFDRB results were approved by the board president on 6 April 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)