02a_AFDRB Decisional Rationale_Class Action Lawsuit.docx

AIR FORCE DISCHARGE REVIEW BOARD DECISIONAL DOCUMENT

CASE NUMBER

SUMMARY:

As a part of the class action lawsuit, Johnson, et al. v. Frank Kendall, Case No. 3:21-cv-01214, settled on DATE, the applicant was in the [Automatic Reconsideration Class] [Reapplication Rights Class] and will be Boarded as a records only review case. The Board was conducted on DATE.

The applicant was discharged on DATE in accordance with Department of the Air Force Instruction 36-3211, Military Separations, / Air Force Instruction 36-3208, Administrative Separation of Airmen, / Air Force Instruction 36-3207, Separating Commissioned Officers,/ Air Force Instruction 36-3209, Separation and Retirement Procedures for Air National Guard and Air Force Reserve Members, with a Character of Service for narrative reason taken from DD 214. The applicant originally appealed for an upgrade of his / her discharge characterization, a change to the discharge narrative reason, and a change to the reentry code on DATE.

The applicant was/was not represented by counsel.

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 reentry 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 DRB 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/multiple Article 15/s, a/Multiple vacation/s of suspended non-judicial punishment, a/multiple Letter/s of Reprimand, and a/multiple Letter/s of Counseling. His / Her misconduct included:

The documentary evidence the DRB considered as part of the review includes, but is not limited to the DD Form 293, Application for the Review of Discharge from the Armed Forces of the United States, and any additional documentation submitted by applicant and/or counsel; the applicant’s personnel file from the Automated Records Management System (ARMS); and the DRB Brief detailing the applicant's service information and a summary of the case to include the DRB’s medical opinion which included a narrative explanation as to the following: a) whether the available record reasonably supports that a mental health condition existed at the time of the applicant’s military service; b) whether these conditions were present at the time of the misconduct; c) whether these conditions were mitigating for the misconduct; d) whether the applicant received mental health and/or medical evaluations prior to their administrative separation.

As an Automatic Reconsideration Group Applicant, the DRB sent a notice to both the service member’s last known mailing address and e-mail address on file which stated that 1) the DRB would reconsider the service member’s case without a need for further response from the applicant; 2) if the applicant wished to supplement their application, they should submit supplemental evidence within 60 days of the notice; 3) submitting medical evidence in support of the application benefits the applicant; 4) provided examples of the types of evidence that may be relevant; and 5) included information regarding available resources to assist Applicants in supplementing their applications.

As a Reapplication Rights Applicant, the plaintiff sent a notice to the service member’s last known mailing address and email address on file. The notice referred them to the Class Notice and included details on the process for applying for reconsideration.

The applicant contended …

The DRB determined… (address any non-LC related propriety or equity contentions or issues here)

LIBERAL CONSIDERATION:

Due to evidence of a mental health diagnosis and/or experiences of sexual assault or sexual harassment and/or records documenting that one or more symptoms of mental health conditions and/or experiences of sexual assault or sexual harassment existed/occurred during military service found in the applicant’s 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, psychiatrist or social worker with training on mental health issues connected with post-traumatic stress disorder (PTSD) or traumatic brain injury (TBI) or other trauma. 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?

Yes/no. If yes, explain the condition/experience, if any (See Notes on Important Considerations)

(Important LC Considerations: a. A diagnosis rendered by a licensed psychiatrist or psychologist is evidence the veteran had a condition that may excuse or mitigate the discharge. b. A veteran asserting a mental health condition without a corresponding diagnosis from a licensed psychiatrist or psychologist, will receive LC of evidence that may support the existence of such a condition. c. DRB not required to find that a crime of sex assault or an incident of sexual harassment occurred in order to grant LC to a veteran that the experience happened during military service, was aggravated by military service, or that it excuses or mitigates discharge.)

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

Yes/no, state when condition began.

(Important LC Considerations: a. A diagnosis made by a licensed psychiatrist or psychologist that the condition existed during military service will receive LC. b. A determination made by the VA that a veteran’s mental health condition is connected to military service, while not binding on the Department of Defense, is persuasive evidence that the condition existed or experience occurred during military service.) c. LC is not required for cases involving pre-existing conditions which are determined not to have been aggravated by military service.

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

Yes/no and detailed explanation as to why it does or does not. This will be gleaned from the Board’s discussion of the merits of the applicant’s case.

(Important LC Considerations: a. Conditions or experiences that may reasonably have existed at the time of discharge will be liberally considered as excusing or mitigating the discharge. b. Evidence that may reasonably support more than one diagnosis or a change in diagnosis, particularly where the diagnosis is listed as the narrative reason for discharge, will be liberally construed as warranting a change in the narrative reason to “Secretarial Authority,” “Condition not a disability,” or another appropriate basis.)

4. Does that condition or experience outweigh the discharge?

This will be gleaned from the Board’s discussion of the merits of the applicant’s case.

(Important LC Considerations: a. In some cases the severity of misconduct may outweigh any mitigation from mental health conditions, including PTSD; TBI; sexual assault; or sexual harassment. B. Premeditated misconduct is not generally excused by mental health conditions, however, substance-seeking behavior and efforts to self-medicate symptoms of a mental health condition may warrant consideration. Review Boards will exercise caution in assessing the casual relationship between asserted conditions or experiences and premeditated misconduct.

(When there is record evidence of post-discharge information include a Wilkie Analysis)

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].

The Board considered the following applicable factors listed in paragraphs (7)(a)-(7)(r) (the analyst should briefly discuss any of the following factors the DRB considered in determining whether to grant relief on the basis of equity, an injustice, or clemency grounds)

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;

h. The degree to which the requested relief is necessary for the applicant;

i. Character and reputation of applicant;

j. Critical illness or old age;

k. Meritorious service in government or other endeavors;

l. Evidence of rehabilitation;

m. Availability of other remedies;

n. Job history;

o. Whether misconduct may have been youthful indiscretion;

p. Character references;

q. Letters of recommendation;

r. Victim support for, or opposition to relief, and any reasons provided.

FINDING: The DRB voted unanimously / 2 to 1 to approve / to deny the applicant’s request to upgrade his / her discharge characterization, to change the discharge narrative reason, and to change the reentry code.

Should the applicant wish to appeal this decision, the applicant must request a personal appearance before this Board before applying for relief to the Air Force Board for Correction of Military Records (AFBCMR). In accordance with DAFI 36-2603, Air Force Board for Correction of Military Records, all applicants before the AFBCMR must first exhaust available administrative avenues of relief before applying to the AFBCMR, otherwise their AFBCMR case will be administratively closed until such time that the applicant avails themselves of the available avenue of relief. Therefore, should the applicant wish to appeal this decision, they must first exercise their right to make a personal appearance before the AFDRB, provided they have not already had one and are within 15 years of discharge.

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/improper/inequitable]. Therefore, the awarded characterization of service shall [change to/remain] “Character,” the narrative reason for separation shall [remain or change] to “reason,” and the reentry code shall [remain or change] to “code.” The Air Force DRB (AFDRB) results were approved by the Presiding Officer on DATE. 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)