AIR FORCE DISCHARGE REVIEW BOARD DECISIONAL DOCUMENT  
	CASE NUMBER

FD-2022-00478	
SUMMARY: 

The applicant was discharged on 16 January 2018 in accordance with AFI 36-3208 with a “Under Other Than Honorable Conditions” (UOTHC) after “In Lieu of Trial By Court Martial.”  The applicant appealed for an upgrade of his discharge characterization, a change to the discharge narrative reason, and a change to the reenlistment eligibility (RE) code.

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 07 March 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 Air Force Discharge Review Board (AFDRB), 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 multiple Letters of Reprimand.  His misconduct included failure to obey a direct order by being in an unprofessional relationship.  

The applicant requested an upgraded characterization to “Honorable” or “General” and a change to his narrative reason to “Secretarial Authority.” The applicant stated that the traumatic brain injury (TBI) he suffered on the job and his experiences during deployments affected him.  He stated when he finally returned from his deployments, he was given more responsibility within his shop.  The applicant stated that involvement with a female from his unit led to his discharge.  He stated he provided a ride one day, which lead to the female kissing him at his home.  The applicant mentioned another interaction with the same female where she wanted to come over to his house to talk.  He stated he did not think anything of it, but the female made another advance after the applicant provided her with a massage that led to her taking off her clothes in his bedroom.  He stated he questioned the status of what happened, and the female left upset.  He stated following that incident; he was accused of misconduct.  The applicant stated the accuser lied and manipulated people into thinking she was assaulted.  The applicant and counsel also stated that the accuser’s integrity was questionable due to her disobeying lawful orders and knowingly partaking in unprofessional relationships with NCOs within her unit.  

The AFDRB determined there was no connection between the applicant’s post-traumatic stress disorder (PTSD) and TBI and his misconduct.  After a thorough review of the record, the Board found no evidence to justify making any changes to the discharge.

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 clinical psychologist.  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 PTSD; 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 checked the boxes for “PTSD” and “TBI” on the application.  The applicant, through counsel, contended “[the applicant] was discharged with a classification of Under Other Then Honorable, following a period of suffering from PTSD and TBI.” 

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

Based on a review of the available records, there is evidence the applicant sought and received mental health treatment during his time in service. There is no evidence the applicant received the diagnosis of PTSD during his time in service. A review of the applicant’s records revealed the applicant symptoms of anxiety and poor sleep intermittently during his time in service. There is evidence the applicant informed his mental health provider while he was under investigation, he believed he had PTSD. A review of the applicant records revealed the applicant was screened and evaluated on multiple occasions for PTSD and received the diagnosis in service of Adjustment disorder with anxiety. 
Regarding the applicant’s contention of TBI, there is no evidence or records in the applicant’s military medical records that he reported six TBIs to medical providers (or anyone) during his time in service that would have prompted evaluation and/or medical treatment. As the applicant’s contention pertains to Liberal Consideration, a review of the applicant’s records revealed the applicant reported temporary headache and temporary blurry vision related to the incidents available for review; there is no evidence of mental health sequelae reported or evidenced. 

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

Based on a review of the applicant’s prior request to the Board, the applicant made no mental health contentions and contended he did not commit the misconduct that led to his discharge, and he was the scapegoat in the situation.  
The applicant, through counsel, contended “the applicant previously applied to this board that reviewed his case on 11 June 2020; however, this petition contains more evidence and arguments not previously discussed in [the applicant’s] first petition. The Board previously denied his request to upgrade his discharge because it was stated there was insufficient evidence of an inequity or impropriety to warrant a change to his discharge status. However, one key piece of evidence that was not previously reviewed  was diagnosis of PTSD and TBI by the VA.”
A diagnosis, in and of itself, does not mitigate misconduct. Further, the applicant contends he did not commit the misconduct(s) that led to his discharge, thus liberal consideration would not apply to mitigate the misconduct(s). There is evidence the applicant requested the Chapter 4 discharge in lieu of Court Martial proceedings and noted in his previous request to the board that his reputation was damaged, and the applicant believed the Chapter discharge was the best option. The applicant made no claim or contention that a mental health condition caused or substantially contributed to the misconduct(s) that led to the applicant’s discharge, as he denied committing the misconduct(s) that led to his discharge. There is evidence the applicant was sought and received mental health services during his military legal proceedings. While military legal proceeding can be stressful, they do not constitute a mental health condition that mitigates the misconduct that initiated the legal proceedings.
Regarding the applicant’s concurrence with his VA diagnoses, 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 had a mental health condition that caused or mitigated the misconduct(s) which led to the applicant’s 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)(g) of this memorandum. (the analyst shall discuss the below factors in determining whether to grant relief on the basis of equity, an injustice, or clemency grounds-delete anything not applicable) 

The Board considered the following applicable factors listed in paragraphs (6)(a)-(6)(l)

a.  It is consistent with military custom and practice to honor sacrifices and achievements, to punish only to the extent necessary, to rehabilitate to the greatest extent possible, and to favor second chances in situations in which individuals have paid for their misdeeds. 

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.

c.  An honorable discharge characterization does not require flawless military service.  Many veterans are separated with an honorable characterization despite some relatively minor or infrequent misconduct.

d.  Evidence in support of relief may come from sources other than a veteran’s service record. 

e.  A veteran’s or Service member’s sworn testimony alone, oral or written, may establish the existence of a fact supportive of relief.

f.  Changes in policy, whereby a Service member under the same circumstances today would reasonably be expected to receive a more favorable outcome than the applicant received, may be grounds for relief.

g.  The relative severity of some misconduct can change over time, thereby changing the relative weight of the misconduct in the case of the mitigating evidence in the case. 

h.  Requests for relief based in whole or in part on a mental health condition, should be considered for relief on equitable, injustice, or clemency grounds whenever there is insufficient evidence to warrant relief for an error or impropriety.

i.  Evidence submitted by a government official with oversight or responsibility for the matter at issue and that acknowledges a relevant error or injustice was committed, provided that it is submitted in his or her official capacity, should be favorably considered as establishing a ground for relief.

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. 

k.  Relief is generally more appropriate for non-violent offenses than for violent offenses.

l.  Changes to the narrative reason for a discharge and/or upgraded character of discharge granted solely on equity, injustice, or clemency grounds normally should not result in separation pay, retroactive promotions, the payment of past medical expenses, or similar benefits that might have been received if the original discharge had been for the revised reason or had the upgraded character. 

The Board considered the following applicable factors listed in paragraphs (7)(a)-(7)(g)

a.  The applicant’s candor;

b.  Whether the punishment, including any collateral consequences, was too harsh;

c.  The aggravating and mitigating facts related to the record or punishment from which the veteran or Service member wants relief;

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

e.  Severity of misconduct;

f.  Length of time since misconduct;

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

FINDING:  The Discharge Review Board (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 and equitable.  Therefore, the awarded characterization of service shall remain “UOTHC,” the narrative reason for separation shall remain to “In Lieu of Trial By Court Martial,” and the reentry code shall remain “2B.”  The DRB results were approved by the board president on 23 March 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)