AIR FORCE DISCHARGE REVIEW BOARD DECISIONAL DOCUMENT  
	CASE NUMBER

FD-2022-00460	
					
SUMMARY:  The applicant was discharged on 2 April 2019 in accordance with AFI 36-3208 with a General discharge for Misconduct (Serious Offense).  The applicant appealed for an upgrade of his discharge characterization and a change to the discharge narrative reason.

The applicant was represented by counsel.    

The applicant appeared and testified before the Discharge Review Board (DRB), with counsel, via video teleconference using Zoom on 2 February 2023.  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 Discharge Review Board (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 a Letter of Reprimand for an unwanted sexual act upon his ex-spouse.        

In his application to the DRB, the applicant contended his mental health was a mitigating factor.  He also contended he was innocent and the accusations against him were false.  During the personal appearance hearing, the applicant, through counsel, contended there were errors in the investigation that led to his discharge.  Specifically, he contended the timing, motivation, and nature of the accusations against him did not provide sufficient evidence for the command to move forward with court-martial charges, and instead they administratively discharged the applicant without opportunity for him to defend himself and prove his innocence.

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 (4) 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 contend that a condition or experience may have excused or mitigated their misconduct or discharge?  

The applicant, through counsel stated on the application his mental health was a mitigating factor.  The applicant, nor counsel provided any further evidence or substantiating documentation in support of the applicant’s claim and stated in box 8 of the application “equity to follow upon hearing date.”

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

The applicant reported during his personal appearance hearing that he received the diagnosis, in service, of depression and anxiety.  There is evidence the applicant sought and received mental health services during his time in service.  Based on a review of the applicant’s records, the applicant reported feelings of anxiety and shame due to his marital situation and pending investigation.  A review of the applicant’s records revealed the applicant received the diagnosis in service of adjustment disorder with mixed anxiety and depressed mood.

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

In the applicant’s response to the discharge notification, he claimed he stood by his innocence and the claims against him were false.  In the applicant’s response to his Letter of Reprimand he stated “I own all of the wrongdoings that contributed to the decay of my marriage. The fact that the marriage did not work and that she filed for divorce is 100% on me.  I was deathly afraid of losing her, and unfortunately, my own actions caused exactly that to happen.”  The applicant described his wrongdoings in the response to the Letter of Reprimand as being unfaithful to his wife prior to his marriage, lying to cover it up, and continuing to live the lie throughout his marriage.  The records revealed the applicant described symptom development (anxiety, difficulty sleeping, poor concentration) in response to marital stressors and legal problems.  There is no evidence a mental health condition caused the misconduct that led to the applicant’s discharge.  There is evidence the applicant was referred to and received mental health services during his military investigations and legal proceedings.  While military investigations and legal proceedings can be stressful, they do not constitute a mental health condition, nor do they mitigate the misconduct that initiated the legal proceedings.  Additionally, the applicant reported during his personal appearance that his mental health did not have any impact on his duty performance and that he found his work to be enjoyable during his time in the service. 

The applicant also reported during his personal appearance that his VA rating should be considered.  The applicant noted he had not received any services with the VA, including mental health services, post-service. Regarding the applicant’s concurrence with his VA rating, 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’s mental health condition caused or mitigated the misconduct which led to the applicant’s discharge.  Because the applicant’s condition does not mitigate his discharge, it does not outweigh his discharge.

4. Does that condition or experience outweigh the 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) and (7)(a)-(7)(r) of this memorandum and found no evidence of inequity or impropriety.  

FINDING:  The DRB voted unanimously to deny the applicant’s request to upgrade his discharge characterization to “Honorable” and to change the discharge narrative reason to “Secretarial Authority.”  The DRB also voted unanimously to deny 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 change.  The Air Force DRB (AFDRB) results were approved by the board president on 8 February 2023.  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)