AIR FORCE DISCHARGE REVIEW BOARD DECISIONAL DOCUMENT  
	CASE NUMBER

FD-2022-00107	
					
SUMMARY: 

The applicant was discharged on 8 May 2015 with a Bad Conduct Discharge after being convicted of Drug Offenses during a Special Court-Martial.

The applicant was represented by counsel.    

The applicant requested the board be completed base on a records review 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 the totality of the circumstances regarding the discharge were not considered. Therefore, the punitive discharge is harsh, in light of the member’s character, record of service and post incident rehabilitation. 
The applicant’s counsel made the following specific contentions in regards to this clemency request:
- The member showed remorse, took responsibility, and has been held accountable.
- Considering the circumstances regarding his mental distress, his positive contributions outweighed the negative aspects of his conduct. 
- His post-incident actions mitigate his prior misconduct. 
- The member’s civilian life is unjustly affected by the BCD as the discharge is disproportionate to the minor offense that occurred during a time of mental anguish.

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 reviewed the applicant’s entire service record and found insufficient evidence to grant the applicant’s request. Specifically, the applicant through counsel did not provide sufficient evidence to support their contentions for clemency. The applicant has not shown that he has overcome the acts of misconduct and paid his dues to society for his misdeeds. His post-service conduct, while commendable, does not demonstrate that he has been fully rehabilitated and become a model citizen. The characterization of the discharge received by the applicant was deemed 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, through counsel, contended “Had the circumstances for AB Baily’s mental distress over childhood sexual trauma been known to investigators and to his chain of command at the time, AB Baily may have been recommended for treatment or administrative separation rather than court martial. Apart from the use of drugs that is explained by AB Baily’s attempt to cope with this trauma, nothing in his record indicates any misconduct or problems.” 
	
2. Did that condition exist/experience occur during military service? 

There is evidence the applicant sought and received mental health care during his time in service. The counsel contended that “AB Baily thought he had put the disgusting treatment behind him but while he was serving in the Air Force he started to experience mental trauma that stemmed from his childhood experiences.” There is evidence the applicant reported “childhood emotional trauma” to mental health providers during his time in service and this was noted to be an EPTS condition. There is no evidence of service aggravation. There is evidence the applicant received the diagnosis of adjustment disorder with depressed mood and anxiety in December 2012 that was reported to be resolved in Jan 2013 at the time the applicant requested to terminate mental health services. There is evidence the applicant received the diagnosis of adjustment disorder with depressed mood and anxiety in April 2013 after reporting to mental health providers significant distress related to ongoing legal stressors. 

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

In accordance with the intent of Liberal Consideration “Liberal consideration is not required for cases involving pre-existing conditions which are determined not to have been aggravated by military service”. The applicant, through counsel, contended he was experiencing distress due to an experience of childhood emotional abuse. This is an EPTS condition. There is no evidence of service aggravation. The applicant, through counsel, contend the applicant had “significant personal stressors” that affected his mental health. Financial stress related to purchasing a new car, anticipated bereavement, and a history of childhood emotional trauma, while all distressing, do not constitute a mitigating mental health condition, and are not indicative of service aggravation for the applicant’s contended EPTS condition. 

The applicant’s counsel contended his discharge is “disproportionate to the minor offense that occurred during a time of severe mental anguish”. The applicant’s lack of candor (including falsification of documents in attempt to purchase a weapon), possession, use, and distribution of multiple classes of illicit drugs over a period of at least 7 months and after he had already been convicted of drug offenses by General Court Martial is indicative of more than a “minor offense”. For the purpose of Liberal Consideration by DRBs, premeditated misconduct is generally not excused by mental health conditions. Distribution of controlled substances is a premeditated offense, and thus excluded from the intent of liberal consideration. While there is evidence the applicant reported “childhood emotional trauma” to military mental health providers, as noted above this is an EPTS condition, there is no evidence of service aggravation, and there is no evidence the applicant gave any indication he was using or distributing drugs to cope with an underlying mental health condition as the applicant reported to the mental health providers he was innocent of the charges against him. 

4. Does that condition or experience outweigh the discharge? 

Because the applicant’s discharge is not mitigated, it is also not outweighed. 

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.

FINDING:  The DRB voted unanimously to deny the applicant’s request to upgrade his discharge characterization, 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 “Bad Conduct Discharge”, the narrative reason for separation shall remain “Court Martial (Other)” and the reentry code shall remain “2L”. The AFDRB results were approved by the board president on XX 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)