AIR FORCE DISCHARGE REVIEW BOARD DECISIONAL DOCUMENT  
	CASE NUMBER

FD-2021-00652	
					
SUMMARY:  The applicant was discharged on 28 February 2012 in accordance with AFI 36-3207 with a DD 214 that shows a General discharge for Misconduct (Serious Offense).  The applicant appealed for an upgrade of his discharge characterization 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 7 June 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.  

Through counsel the applicant contended that the circumstances of the incidents and his supporting documentation support an upgrade.  Counsel argued the applicant served honorably for more than 18 years, and notwithstanding a single act of indiscretion, he was an outstanding member and asset to the Air Force.  The applicant resigned due to allegations that occurred a decade ago and no such allegations have occurred since.  Therefore, it is an injustice to continue to characterize and punish the applicant for this discharge.  Furthermore, the applicant’s counsel contended that the applicant has demonstrated his ability to overcome his mistakes and has moved forward in a positive light, has no criminal record, or any encounters with the law since his discharge.  Finally, the applicant contended that had he been allowed to correct his mistake, a strong argument could be made that he would not have been discharged.   

A review of the applicant’s record revealed that in 2010 he attended a “ComiCon” convention in San Diego, California.  A male witness observed him take several pictures of his younger sister, who was at the time under the age of 18.  The child was wearing a short costume dress of a fictional character.  The applicant gave directions to the child to pose in certain positions so the applicant was able to take pictures and/or videos of her under her dress.  The male witness confronted the applicant and asked to see his camera.  The applicant refused and a struggle between them ensued.  The San Diego Police Department arrived and questioned both the applicant and the witness about the incident.  Based on the witness’ and victim’s statements, police seized two cameras and a cell phone from the applicant.  After obtaining a search warrant to search the cameras and the cell phone, police uncovered numerous images and videos depicting young females ranging in age from about four years old to about sixteen years old.  The images showed the girls, many dressed in costumes for “ComiCon” type events, with their knees pulled up to their chests in such a way as to clearly show their underwear and genital region.  The images appeared to be taken at various comic conventions across the United States.
 
Police also obtained a search warrant to search the applicant’s home and seized the applicant’s desktop computer, one digital camera, and three external hard drives for forensic analysis.  The computer and one external hard drive contained additional images of young girls in similar poses.  One file contained four to five images of a young girl, aged eight to twelve years old, with her underwear off, seated on the applicant’s lap with her knees and legs spread apart, and held in place by the applicant.  The girl was wearing a costume dress or skirt, and the images clearly showed the exposed genital area of the girl.  Other images in the file show this and other young girls wearing skirts or dresses with their underwear still on, but seated in the applicant’s lap in a similar position to show their underwear and genital region.  The applicant could clearly be seen behind the girls holding their knees up and legs spread out.  In some of these photos the girls appeared to be crying or in distress.

Civilian authorities declined to grant jurisdiction over this matter to the Air Force and the Air Force pursued discharge proceedings.  The applicant submitted a Resignation in Lieu (RILO) of discharge proceedings.  The applicant’s RILO, with an Under Other Than Honorable Conditions (UOTHC) characterization, was approved by the delegated approval authority on behalf of the Secretary of the Air Force.  Although the administrative documentation reflects a UOTHC discharge was ordered, the applicant’s DD 214 reflects a General characterization, an administrative error in the applicant’s favor.  

During the applicant’s personal appearance hearing he testified that he had undiagnosed PTSD at the time of his misconduct and that he has since been diagnosed with this condition by the VA and been assigned a disability rating.  The applicant claimed his misconduct was directly a result of his PTSD and at the time he was suffering from impulsive judgment and social isolation.  

The applicant indicated during his personal appearance that he was seen by a mental health provider for one session during his time in service.  The applicant also noted during his personal appearance this session was during his discharge process and he confirmed that he reported to the mental health provider that he was feeling angry about his discharge and denied any other mental health symptoms, including symptoms of PTSD.  There is no evidence the applicant received a diagnosis of PTSD during his time in service and the applicant stated during his personal appearance that he did not seek treatment for symptoms of PTSD or any other mental health condition during his time in service.  The applicant reported he was diagnosed with PTSD post service; per records review, the applicant first sought help related to symptoms of PTSD in 2018, six years post discharge. 

Due to the applicant’s contention that he had a mental health condition, 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 considered the four questions laid out in the attachment to the Under Secretary of Defense memorandum, Clarifying Guidance to Military Discharge Review Boards and Boards for Correction of Military/Naval Records Considering Requests by Veterans for Modification of their Discharge Due to Mental Health Conditions, Sexual Assault, or Sexual Harassment, dated 25 August 2017, known as the “Kurta Memo.”  The Board noted this guidance does not mandate relief, but rather provides standards and principles to guide the DRB in application of their equitable relief authority.  The DRB also noted relief is generally more appropriate for non-violent offenses than for violent offenses. The Board considered the following: 

1. Did the veteran have a condition or experience that may excuse or mitigate the discharge? 
Neither the applicant nor counsel made any contentions of a mental health condition on any of the application documents nor submitted any substantiating evidence of a mental health condition prior to the board hearing. During the personal appearance hearing, the applicant stated he received a diagnosis of PTSD post service and is utilizing VA services for treatment. The applicant also reported during his personal appearance that he has also sought services with a private therapist for his inappropriate sexual impulses with children. No records were available for review from the private therapist; a review of the applicant’s military medical and administrative records reveal that applicant was seen one time by a mental health provider during his time in service. The applicant’s post-service records reveal he received a diagnosis of PTSD from the VA six-years post discharge. A review of the applicant’s military and post-service records indicate a lack of candor as it is noted in the VA’s records the applicant has maintained he left the military voluntarily to care for ill parents. The applicant, and counsel, reported during his personal appearance hearing that the trauma experienced during his deployment is what caused his single act of misconduct. While the applicant contends that his sexual misconduct was a one-time impulsive incident, the evidence in the applicant’s records indicates he had a history of premediated sexual misconduct against children, some in which he choreographed the scenes in which the minor children were to be photographed. There is no evidence these egregious misconducts were impulsive, rather, the evidence indicates these were premeditated events to satisfy his sexual impulses with no nexus to the applicant’s contention of PTSD.

2. Did that condition exist/experience occur during military service? 
The applicant indicated during his personal appearance that he was seen by a mental health provider for one session during his time in service. The applicant also noted during his personal appearance this session was during his discharge process and he confirmed that he reported to the mental health provider that he was feeling angry about his discharge and denied any other mental health symptoms, including symptoms of PTSD.  There is no evidence the applicant received a diagnosis of PTSD during his time in service and the applicant stated during his personal appearance that he did not seek treatment for symptoms of PTSD or any other mental health condition during his time in service. The applicant reported he was diagnosed with PTSD post service; per records review, the applicant first sought help related to symptoms of PTSD in 2018, six years post discharge. There is evidence the applicant was diagnosed with PTSD post-service. There is no evidence the applicant was diagnosed with or endorsed any clinically significant indicators of PTSD during his time in service.  The severe, repetitive, predatory, and premeditated nature of the applicant’s offenses that caused harm to children, and which occurred prior to and after the applicant’s report (per his testimony during the personal appearance) of his index trauma are excluded from the intent of liberal consideration.

3. Does that condition or experience actually excuse or mitigate the discharge? 
No, the applicant’s diagnosis of PTSD does not excuse or mitigate the discharge. As detailed above, the nature of his misconduct is severe and involved victims.  The severity of his misconduct has not changed over time.  Furthermore, after a thorough review of the record and the applicant’s testimony the DRB also determined there was evidence of similar misconduct by the applicant prior to his deployment and what he claimed was his PTSD causing event.  Premeditated misconduct is not generally excused by mental health conditions, including PTSD, TBI; or by a sexual assault or sexual harassment experience.  Review Boards will exercise caution in assessing the causal relationship between asserted conditions or experiences and premeditated misconduct.  While the applicant contended that his sexual misconduct was a one-time impulsive incident, the evidence indicated the applicant had a history of premediated sexual misconduct against children, some in which he choreographed the scenes in which the minor children were to be photographed.  There is no evidence these egregious misconducts were impulsive, rather, the evidence indicated these were premeditated events to satisfy his sexual impulses.

4. Does that condition or experience outweigh the discharge? No, the severity of the applicant’s misconduct outweighs any mitigation from his mental health condition of PTSD. The severe, repetitive, predatory, and premeditated nature of the applicant’s offenses that caused harm to children, and which occurred prior to and after the applicant’s report (per his testimony during the personal appearance) of his index trauma causing event are excluded from the intent of liberal consideration.

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) and the factors listed in paragraphs (7)(a)-(7)(r) of this memorandum.  The Board favors second chances, and commends the applicant for the steps he has taken to rehabilitate and contribute to society.  However, the strides he has made and his employment with the Navy do not overcome the misconduct.  The Board recognizes that an honorable discharge characterization does not require flawless military service; however, the applicant’s misconduct was not minor and involved victims.  His acts were not that of a youthful indiscretion and the applicant did not submit nor exhibit any evidence of responsibility or remorse. Moreover, the severity of his misconduct has not lessened overtime.  

FINDING:  The DRB voted unanimously to deny the applicant’s request to upgrade his discharge characterization to Honorable.  The DRB also voted unanimously to deny changing the discharge narrative reason to Secretarial Authority and changing 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, the narrative reason for separation, and the reentry code shall not be upgraded.  The AFDRB results were approved by the board president on 8 July 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)