AIR FORCE DISCHARGE REVIEW BOARD DECISIONAL DOCUMENT  
	CASE NUMBER

FD-2021-00675	
					
SUMMARY: 

The applicant was discharged on 15 March 2016 in accordance with AFI 36-3208 with a General Discharge for Misconduct (Drug Abuse). The applicant appealed for an upgrade of his discharge characterization and a change to the discharge narrative reason.

The applicant was not represented by counsel.    

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

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, and multiple Letters of Counseling.  His misconduct included:  Wrongfully used marijuana on two occasions; wrongfully consumed alcohol under the age of 21; and failed to report to work at the time prescribed. 

The applicant through counsel contended that due to the member being diagnosed with PTSD for traumatic events during service, his marijuana use is mitigated. They explained that the member did not seek help because of the stigma and he believed it would risk his career. They also contended that the legal review was overly subjective, harsh, and the member should have qualified for retention using the 7 criteria. Lastly, they contended that other Airmen involved in the same incident were not discharged because of the proximity to their date of separation. The applicant would like an upgrade so that he may use his GI Bill for school.

The DRB reviewed the applicant’s entire service record and found no evidence of impropriety or inequity to warrant an upgrade of the discharge. There was no evidence to indicate the applicant was unaware of the Air Force policy of zero tolerance for illegal drug use.  Also, there was no evidence presented to establish that the applicant received consequences that were harsher than any other airmen who committed similar misconduct. The Board found the negative aspects of the applicant’s willful misconduct outweighed the positive aspects of his military service.  Although the board acknowledges that the applicant expressed his concern that he met the seven retention criteria, the evidence provided was not sufficient for the Board to deem the discharge characterization warranted an upgrade.   

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 contends, through counsel, “at the time and currently, [the applicant] was suffering from service-related PTSD, although at the time he did not seek diagnosis and treatment because he had been warned- and he believed- that seeking help would cause him to lose his job.” The applicant, through counsel, also contend [the applicant’s] request qualifies for liberal consideration due to service-connected Post Traumatic Stress Disorder (PTSD).” 

2. Did that condition exist/experience occur during military service? 

There is no evidence or records to substantiate that the applicant was diagnosed with or exhibited any symptoms of PTSD during his time in service.  Based on review of available records, there is no evidence the applicant’s duty performance in service was impaired as evidenced by his personal statement and EPRs.

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

The applicant’s incident(s) of misconduct occurred prior the applicant’s timeline of events, and deployment, that the applicant contend led to his post-service diagnosis of PTSD-delayed onset. Per review of the evidence, the applicant acknowledged that he smoked marijuana two times in 2013. In the applicant’s personal statement, included with his application, he detailed events and a deployment that he contends led to his post-service diagnosis of PTSD.  The applicant’s claims of events that led to his post service PTSD diagnosis that occurred after his incident(s) of smoking MJ (noted to be in 2014, 2015, 2016- after the time provided by the applicant in which he smoked marijuana) do not pertain to the mitigation of the misconduct that led to the applicant’s discharge as the events occurred after the misconduct. 
A 9 Mar 2016 MFR from the applicant’s Commander also indicated “There is no indication that [the applicant’s] misconduct is a result of post-traumatic stress disorder or traumatic brain injury.”
The applicant makes no claims in his discharge notification, and there is no evidence to substantiate based on the available records, that his smoking marijuana was to medicate a mental health condition. The applicant stated in his response to discharge notification that he “experimented with marijuana because he was young, impressionable, and easily manipulated. He admitted he was hanging with a bad crowd and fell victim to peer pressure. He understood using marijuana was in poor judgment and assures he has learned from his mistake.”

4. Does that condition or experience outweigh the discharge? 

The applicant was discharged due to misconduct, drug use. Based on the available evidence and records, the applicant’s mental health condition likely developed post-service. Regarding the applicant’s concurrence with his VA diagnoses, the VA, operating under a different set of laws than the military, is empowered to offer compensation for any medical or mental health 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 VA 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. At the “snapshot in time” of the applicant’s service, there is no evidence the applicant had a mental health condition that caused or mitigated the misconduct(s) which led to the applicant’s discharge.  Because the applicant’s condition does not mitigate his discharge, it does not outweigh his 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)(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 contended that due being diagnosed with PTSD for traumatic events during service, it mitigates the use of marijuana. However, There is no evidence or records to substantiate that the he was diagnosed with or exhibited any symptoms of PTSD during his time in service. Based on review of available records, there is no evidence the applicant’s duty performance in service was impaired as evidenced by his personal statement and EPRs. Additionally, the applicant made no claims in his discharge notification. He stated in his response that he “experimented with marijuana because he was young, impressionable, and easily manipulated. He admitted he was hanging with a bad crowd and fell victim to peer pressure. He understood using marijuana was in poor judgment and assures he has learned from his mistake.”

FINDING:  The DRB voted unanimously to deny the applicant’s request to upgrade his 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 a General, the narrative reason for separation shall remain Misconduct (Drug Abuse) and the reentry code shall remain 2B. The AFDRB results were approved by the board president on 29 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)