ADDENDUM TO RECORD OF PROCEEDINGS

IN THE MATTER OF:	DOCKET NUMBER: BC-2012-04086-5

	COUNSEL: YES

	HEARING REQUESTED: NO

APPLICANT’S REQUEST

The Board reconsider his request for a medical retirement and Combat Related Special Compensation (CRSC).

RESUME OF THE CASE

The applicant is a former Air Force Reserve (AFR) senior airman (E-4) who received an honorable discharge on 21 May 09 for Physical Disqualification, Disqualification-Not Disability-Medically Disqualified for Worldwide Duty and credited with 8 years 9 months and 24 days of total reserve service.

On 14 Jun 21, the Board considered and denied his request for a medical retirement, CRSC or as an alternative, to be processed through the Integrated Disability Evaluation System (IDES); finding the applicant had provided insufficient evidence of an error or injustice to justify relief.  The Board considered his request under liberal consideration and believed the applicant’s medical condition was not warranted to process through the IDES as a matter of equity or good conscience IAW DoDI 1332.18, Disability Evaluation System, Appendix 1 to Enclosure 3, paragraph 4.  Specifically, there was no evidence the applicant was on Reserve orders or status at the time his mental health condition occurred that would make his condition be considered In Line of Duty (ILOD).

For an accounting of the applicant’s original request and the rationale of the earlier decision, see the AFBCMR Letter and Record of Proceedings at Exhibit M. 

On 8 Nov 21, the applicant requested reconsideration of his request for a medical retirement and to grant CRSC.  The applicant contends his conditions are military related and his DVA psychiatrist’s opinion favors service connection for military medical retirement and combat pay.  In support of his reconsideration request, the applicant submitted new evidence in the form of a letter from his doctor (Doctor of Osteopathic Medicine (D.O.)) with the Department of Veterans Affairs (DVA), dated 1 Nov 21.

The applicant’s complete submission is at Exhibit N.

APPLICABLE AUTHORITIES/GUIDANCE

Department of Defense Instruction (DoDI) 1332.38, Physical Disability Evaluation, paragraph E2.1.20, Non-duty related impairments of members of the Reserve components that were neither incurred nor aggravated while the member was performing duty, to include no incident of manifestation while performing duty which raises the question of aggravation and members with non-duty related impairments are eligible to be referred to the Physical Evaluation Board (PEB) for solely a fitness determination but not a determination of eligibility for disability.

The Department of Defense (DoD) and the Department of Veterans Affairs (DVA) disability evaluation systems operate under two separate laws. Under Title 10, United States Code, PEBs must determine if a member's condition renders them unfit for continued military service relating to their office, grade, rank, or rating. The fact that a person may have a medical condition does not mean the condition is unfitting for continued military service. To be unfitting, the condition must be such that it alone precludes the member from fulfilling their military duties. If the board renders a finding of unfit, the law provides appropriate compensation due to the premature termination of their career.  Further, it must be noted the Air Force disability boards must rate disabilities based on the member's condition at the time of evaluation, in essence a snapshot of their condition at that time. It is the charge of the DVA to pick up where the Air Force must, by law, leave off.  Under Title 38, the DVA may rate any service-connected condition based upon future employability or reevaluate based on changes in the severity of a condition.  This often results in different ratings by the two agencies.

On 3 Sep 14, the Under Secretary of Defense for Personnel and Readiness (USD P&R) issued a memorandum providing guidance to military correction boards regarding liberal consideration for Vietnam veterans claiming Post-Traumatic Stress Disorder PTSD (Hagel Memo). In addition, time limits to reconsider decisions would be liberally waived for applications covered by this guidance.  Subsequent guidance expanded liberal consideration protections to include all veterans who requested a modification of their discharge, to include character of service, narrative reason for discharge and reenlistment code, due in whole or in part to any mental health condition rather than just PTSD or Traumatic Brain Injury and included those veterans who were victims of sexual assault or sexual harassment. Liberal consideration would be given to veterans petitioning for discharge relief when the application for relief is based in whole or in part on the aforementioned conditions.

Under Consideration of Mitigating Factors, it is noted that PTSD is not a likely cause of premeditated misconduct. Correction Boards will exercise caution in weighing evidence of mitigation in all cases of misconduct by carefully considering the likely causal relationship of symptoms to the misconduct. Liberal consideration does not mandate an upgrade. Relief may be appropriate, however, for minor misconduct commonly associated with the aforementioned mental health conditions and some significant misconduct sufficiently justified or outweighed by the facts and circumstances.  Boards are directed to consider the following main questions when assessing requests due to mental health conditions including PTSD, TBI, sexual assault, or sexual harassment:

a. Did the veteran have a condition or experience that may excuse or mitigate the discharge?
b. Did that condition exist/experience occur during military service?
c. Does that condition or experience actually excuse or mitigate the discharge?
d. Does that condition or experience outweigh the discharge?

On 24 Mar 21, Board staff provided the applicant a copy of the liberal consideration guidance (Exhibit H).

AIR FORCE EVALUATION

The AFRBA Psychological Advisor completed an extensive review of the available records and newly submitted evidence for a reconsideration of his previous request and continues to find insufficient evidence to support the applicant’s desired changes to his records.

The letter from the applicant’s DVA provider stated the applicant began to have paranoid thoughts stemming from his experiences during his first enlistment period from Oct to Nov 99.  While it may be possible, he may have experienced paranoid thinking from his experience with his drill instructors, his symptom/condition would be considered as a prior service impairment or condition.  This is because the applicant had successfully transferred to the AFR on 31 Aug 04 by meeting accession standards and rendering him to be fit for duty.  The DVA provider believes his prior service impairments were exacerbated and aggravated by his military service with the Reserve, and there is no evidence to corroborate this claim.  The DVA provider did not provide any specific details of his actual military duty or experience that aggravated his prior service condition.  The DVA provider discussed the applicant had delusional thoughts and a strong sense of derealization during his second enlistment from Aug 04 to Jun 05 and had multiple inpatient admissions and intensive outpatient (IOP) treatment following his transfer to the Reserve.  These events and experiences may have coincided or occurred in tandem with his time in the Reserve, but there was no evidence these events and experiences were caused directly by his military service and had occurred when he was on Reserve orders/ILOD.  In fact, and as discussed in the previous psychological advisory, three mental health providers, military and DVA, had concluded the applicant’s psychosis were not related or triggered by his military service and reported his psychosis was brought on by his family/parental problems.  His military medical records also designated his mental health condition as a “non-duty related impairment or condition”.  The DVA provider nor the applicant did not provide any clarifying or compelling evidence that would convincingly dispute or invalidate information documented in his objective military records or the congruent opinions by three duly qualified mental health providers who had observed his behaviors and clinical presentation at or near the time of his service.

The applicant is also requesting combat pay.  Although the CRSC criteria is out of the scope of the psychological advisor’s expertise, he would not be eligible for CRSC because a medical retirement is required for CRSC designation.  Since he is not eligible for a medical retirement for his mental health condition according to his military records, he would not be eligible for CRSC due to current policy.

The Board applied applied liberal consideration to the applicant’s petition based on the contention of a mental health condition.  The following are responses based on information presented in the records to the four questions in the policy/Kurta memorandum:

1. Did the veteran have a condition or experience that may excuse or mitigate the discharge?  The applicant is requesting to be medically retired at 100 percent disability rating for schizoaffective disorder.

2. Did the condition exist or experience occur during military service?  There is evidence his mental health condition of bipolar disorder was determined to be disqualified for continued military duty by HQ AFRC/SGP on 22 Jan 07 and his condition of paranoid schizophrenia was unfit for continued military service by SAFPC on 13 Feb 09.

3. Does the condition or experience excuse or mitigate the discharge?  Despite his mental health condition being declared unfit for continued military service, there is no evidence his unfitting mental health condition was incurred ILOD and/or was caused by his military duties. Therefore, his condition/experience does not excuse or mitigate his discharge.

4. Does the condition or experience outweigh the discharge?  Since there is no evidence his unfitting mental health condition was ILOD, which is also required for his unfitting condition to receive any disability rating or compensation, his condition or experience does not outweigh his original discharge with no rating and compensation.

The complete advisory opinion is at Exhibit O.

APPLICANT’S REVIEW OF AIR FORCE EVALUATION

The Board sent a copy of the advisory opinion to the applicant on 18 Jul 22 for comment (Exhibit P), and the applicant replied on 21 Jul 22.  In his response, the applicant provided a personal statement reiterating how his mental health condition was ILOD and how the military screwed him and others over.  The applicant indicated his counsel will be responding by 18 Aug 22.  On 18 Aug 22, the applicant’s counsel provided a response on the applicant’s behalf and contended the psychological advisor failed to recognize the applicant was displaying the early symptoms of schizoaffective disorder during his military service.  The early stages of schizoaffective disorder condition and the associated symptoms are often misdiagnosed, as was the case with the applicant when medical providers attributed his early symptomology to bipolar disorder.  There is ample evidence to suggest that it is at least more likely true than not true that the applicant’s schizoaffective disorder was incurred while he was in a qualified duty status in 2004.  Despite displaying the symptoms associated with the prodrome phase of schizoaffective disorder, the applicant was not formally diagnosed with this condition until several years later. The retrospective diagnosis of schizoaffective disorder is consistent with medical practices associated with these types of medical conditions.  The psychologist’s assertion that the applicant’s medical condition was not incurred in the line of duty is patently false and sufficient evidence has been presented to overcome this assertion.

The applicant’s complete response is at Exhibit Q.

FINDINGS AND CONCLUSION

1.  The application was timely filed.

2.  The applicant exhausted all available non-judicial relief before applying to the Board.

3.  After reviewing all Exhibits, to include the applicant’s response to the advisory opinion, the Board remains unconvinced the evidence presented demonstrates an error or injustice.  The Board concurs with the rationale of the AFRBA Psychological Advisor and finds a preponderance of the evidence does not substantiate the applicant’s contentions for award of a medical retirement nor CRSC.  Specifically, the new evidence provided by the applicant is not compelling evidence nor does it persuade our previous decisions.  The Board again considered his request under liberal consideration and believes the applicant’s medical condition was not warranted to process through the IDES as a matter of equity or good conscience IAW DoDI 1332.18, Disability Evaluation System, Appendix 1 to Enclosure 3, paragraph 4.  Therefore, the Board recommends against correcting the applicant’s records.

RECOMMENDATION

The Board recommends informing the applicant the evidence did not demonstrate material error or injustice, and the Board will reconsider the application only upon receipt of relevant evidence not already presented.

CERTIFICATION

The following quorum of the Board, as defined in Air Force Instruction (AFI) 36-2603, Air Force Board for Correction of Military Records (AFBCMR), paragraph 1.5, considered Docket Number BC-2012-04086-5 in Executive Session on 24 Aug 22 and 29 Aug 22:

Panel Chair 
Panel Member
Panel Member

All members voted against correcting the record.  The panel considered the following:

Exhibit M:	Record of Proceedings, w/ Exhibits A-L, dated 14 Jun 21.
Exhibit N:	Application, DD Form 149, w/atchs, dated 8 Nov 21.
Exhibit O:	Advisory Opinion, AFRBA Psychological Advisor, dated 6 Jul 22. 
Exhibit P:	Notification of Advisory, SAF/MRBC to Applicant,, dated 18 Jul 22.
Exhibit Q:	Applicant’s Response, w/atchs, dated 20 and 21 Jul 22 and 18 Aug 22.

Taken together with all Exhibits, this document constitutes the true and complete Record of Proceedings, as required by AFI 36-2603, paragraph 4.11.9.