AIR FORCE DISCHARGE REVIEW BOARD DECISIONAL DOCUMENT  
	CASE NUMBER

FD-2022-00030	
					
SUMMARY: 

The applicant was discharged on 12 November 2019 in accordance with AFI 36-3208 with a General Discharge for Misconduct (Sexual Perversion). The applicant appealed for an upgrade of his discharge characterization.

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 an Article 15.  His misconduct included: Broadcasted a sexual visual image without explicit consent from the individual; failure to go to his place of duty; willfully sold a prescription drug to another Airman; wrongful use of Government travel card; unlawful entrance into another’s property.

The applicant did not make any contentions to the equity or propriety of the circumstances surrounding his discharge.  He requested an upgrade in order to use his GI Bill Benefits. He stated that he was not in his right mind because of the lack of knowledge about recourse, the toxic leadership, immaturity and his mental health issues, and it wasn’t until he was punished for his actions that he realized he had these issues. 

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 acknowledges the applicant’s present service characterization renders him ineligible for Department of Veterans Affairs education benefits.  However, this is not a matter of inequity or impropriety which would warrant 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 contended, “The last thing I want this explanation to sound like is me pointing the finger for decisions I’ve made but I'm wholeheartedly convinced that I wasn't in my right mind during my period of service that was considered "under honorable" and because of my lack of knowledge about recourses, toxic leadership, immaturity, and mental issues that I didn't even realize I was plagued with until I was getting punished for them.” 

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

There is evidence the applicant sought and received mental health treatment during his time in service from both the mental health clinic and the behavioral health provider within the primary care clinic.  

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

The applicant was discharged due to misconduct. The applicant’s most serious misconduct(s) were premeditated and thus are excluded from liberal consideration. Per review of the available records, the applicant had twelve documented incidents of misconduct during his two years and eleven months of service. Based on review of the available records, the applicant’s claim that he was unaware of the resources available to him is contradicted by the plethora of mental health and supportive services he received during his time in service, including psychological testing to conclusively rule out a mental health condition. 
There is no evidence or records to suggest the applicant was mentally incapacitated or “not in his right mind” at the time of his discharge process as evidenced by the applicant’s response to administrative discharge statement “I do not think that I should be labeled as committing a serious offense; sexual perversion, for an offense that was not serious enough to go to court martial.” The burden of proof is upon the applicant to substantiate his claims; based on the available records, there is no evidence a mental health condition caused, mitigated, or excused the misconduct(s) that led to the applicants discharge. 

4. Does that condition or experience outweigh the discharge? 

There is no evidence to indicate the applicant’s condition mitigated or excused the premeditated, willful misconduct that led to his discharge and therefore the applicant’s condition does not outweigh 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 this factor: 

(6)(j).  Similarly situated Service members sometimes receive disparate punishments.  A Service member in one location could face court-martial for an offense that routinely is handled administratively across the Service. While a court-martial or a command would be within its authority to choose a specific disposition forum or issue a certain punishment, DRBs should nevertheless consider uniformity and unfair disparities in punishments as a basis for relief. 

The board felt that similarly situated Airman would receive the same or a more harsh discharge than the applicant. Not only did the applicant commit serious infractions, he also developed a pattern of misconduct. The board determined that the General discharge is warranted.

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 General, the narrative reason for separation shall remain Misconduct (Sexual Perversion) and the reentry code shall remain 2B. The AFDRB results were approved by the board president on 16 May 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)