AIR FORCE DISCHARGE REVIEW BOARD DECISIONAL DOCUMENT  
	CASE NUMBER

FD-2021-00635	
					
SUMMARY: 

The applicant was discharged on 11 January 2013 with a Bad Conduct Discharge after being convicted of wrongful use of cocaine on diverse occasions during a Special Court-Martial.

The applicant was 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 through counsel contended that an upgrade is warranted because his service-related PTSD and mental health conditions prompted the substance abuse that led to his discharge. Additionally, they stated that it should be upgraded on the grounds off clemency based on the totality of his life and circumstances, including the positive aspects of his military service and his capability to serve. The applicant explained that he still needs treatment for his in-service incurred mental health conditions and the upgrade of the discharge would enable him to receive the support he needs for his mental health condition.

Upon review of an applicant’s Bad Conduct Discharge as adjudged by a Special Court-Martial, the DRB may change the punitive discharge to an administrative discharge for the purposes of clemency, if warranted.  The DRB found sufficient evidence to grant the applicant’s request. Specifically, the board felt that the applicant was actively trying to improve himself and his circumstances. Additionally, the Board felt that his recognition of wrongdoing as well as the absence of any negative information affirmed that the applicant has been rehabilitated. 

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, through counsel, contended the applicant incurred “substantial mental health injuries” during active duty.  

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

There is evidence the applicant sought mental health treatment intermittently during his time in service. There is no evidence the applicant received a diagnosis of PTSD in service, although there is evidence based upon the available records the applicant was diagnosed with Adjustment disorder (2006) and Depression (2007) during his time in service. 

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

There is evidence the applicant sought- or attempted to seek- mental health and substance use treatment during his time in service.  There is evidence in the applicant’s record that his performance declined as identified on his Enlisted Performance Reviews between the July 2005- July 2006 rating period and the July 2006- July 2007 rating period. Although there is no evidence the applicant’s mental health condition rose to the level of unfitting during his time in service, there is evidence the applicant exhibited a mental health condition in service that may have contributed to the misconduct that led to his discharge. 

4. Does that condition or experience outweigh the discharge? 

There is evidence the applicant may have had a mental health condition in service; however, the applicant’s mental health condition could not completely explain or sufficiently excuse the totality of the misconduct to warrant outweighing 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)(b).  Relief should not be reserved only for those with exceptional aptitude; rather character and rehabilitation should weigh more heavily than achievement alone.  An applicant need not, for example, attain high academic or professional achievement in order to demonstrate sufficient rehabilitation to support relief.

The applicant demonstrated that he is trying to improve himself by seeking help. Additionally, the member has shown great remorse and has accepted responsibility for his action. There has been no other repeated infractions since discharge and therefore the board felt he has been rehabilitated.

Additionally, the Board considered the following applicable factors listed in paragraphs (7)(a)-(7)(r) of the “Wilkie memo:”

(7)(d).  Positive or negative post-conviction conduct, including any arrests, criminal charges, or any convictions since the incident at issue;

The applicant’s record does not indicate any convictions, charges or arrests since his discharge.

(7)(g).  Acceptance of responsibility, remorse, or atonement for misconduct;

The applicant demonstrated his remorse for his actions and took full responsibility for the misconduct that resulted in his court-martial and subsequent discharge.

FINDING:  The DRB voted unanimously to approve the applicant’s request to upgrade his discharge characterization to Under Other Than Honorable Conditions, to change the discharge narrative reason to Secretarial Authority, and to change the reenlistment eligibility code to 2B.
 
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. However, the applicant met the criteria for an upgrade based on clemency, and the board felt it was warranted. Therefore, the awarded characterization of service shall change to “Under Other Than Honorable Conditions”, the narrative reason for separation shall change to “Secretarial Authority” and the reentry code shall change to 2B.  The AFDRB results were approved by the board president on 14 March 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)