ADDENDUM TO
RECORD OF PROCEEDINGS
AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS

IN THE MATTER OF: 			DOCKET NUMBER: BC-2012-00473

 						COUNSEL:   

						HEARING DESIRED:  YES 

APPLICANT REQUESTS THAT:

His Under Other Than Honorable Conditions (UOTHC) discharge be changed to a medical retirement.

He receive payment of all denied disability compensation due to him under 10 U.S.C. § 1201 and all other applicable laws and regulations.

He receive payment of all out of pocket medical expenses incurred since 10 December 2010.

In the alternative of a medical retirement, his UOTHC discharge be upgraded to honorable or general (under honorable conditions).

He be awarded costs and attorney’s fees.

Any other relief as the Court deems just and proper.  

On 3 March 2017, Counsel amended the request to include removal of the November 2009 and October 2010 Article 15, Nonjudicial Punishment (NJP) actions, removal of the November 2009 Letter of Reprimand (LOR) and that the applicant’s four years at Uniformed Services University of Health Sciences (USUHS) be credited toward his Total Active Federal Military Service.  

APPLICANT CONTENDS THAT:

Counsel, on behalf of the applicant, states that on 23 August 2016, the United States Court of Federal Claims (CoFC) remanded the applicant’s case to the AFBCMR.  The AFBCMR was ordered to consider the applicant’s claim that the AFBCMR failed to properly consider the status of his medical disability case at the time of his discharge and to consider any other matters presented by the applicant.  

The applicant, thru counsel, states the Department of Veterans Affairs (DVA) rating decisions dated 5 June 2015 and 14 April 2016 demonstrate he had disabling conditions which are service-connected and warranted a medical discharge.  The conditions existed at the time of separation, continue to exist and have significantly worsened since his discharge.  On 14 April 2016, the DVA modified the applicant’s disability rating from 70 to 100 percent.  He continues to suffer from tension headaches, benign paraoxysmal positional vertigo, essential hypertension, skull fracture sequelae, memory deficit, cognitive defects, degenerative joint disease in his right ankle, and permanent visual defect in his left eye, among other issues.  He suffered and continues to suffer from disabling conditions for which an MEB was appropriate and necessary for proper disposition of his case and his conditions rendered him unfit for service.  The medical evaluation and Narrative Summary (NARSUM) prepared for the MEB unequivocally demonstrated he suffered from unfitting conditions which qualify him for disability retirement compensation.  This information was prohibited from being entered into evidence considered by the Board of Inquiry (BOI).  

The applicant’s complete submission, with attachments, is at Exhibit F.

RESUME OF CASE:

The applicant Entered Active Duty (EAD) on 19 May 1990 in the grade of captain (O-3) after attending the Uniformed Services University of Health Sciences (USUHS).  

On 17 May 2005, the applicant received an Article 15 for conduct unbecoming an officer.  Reasons for the Article 15 include fabrication of an Officer Performance Report (OPR), a nomination for an award and a decoration package, making a false official statement to an Air Force Office of Special Investigations (AFOSI) agent and he absented himself from his place of duty on two occasions.      

The applicant received a referral OPR for the reporting period ending 30 June 2005.  Reasons for the referral OPR include a lack of integrity in creating and submitting a false OPR, nomination for an award and medal, making a false statement to the AFOSI and absenting himself without proper leave; for which he received an Article 15.  

On 28 April 2006, the applicant’s request for a humanitarian deferment to remain in the National Capital Region (NCR) in lieu of a Permanent Change of Station (PCS) assignment to Fairchild AFB, WA with 15 June 2006 Report Not Later Than Date (RNLTD) was disapproved.  The basis of his request was his mother’s failing health and the need to remain in the local vicinity to provide care and support.  His application was denied based on medical documentation which revealed his mother suffered from chronic medical conditions which required prolonged and ongoing medical treatment.  There was no indication of resolution within a reasonable period of time.  AFPC stated in the denial they were unable to provide the applicant with special assignment consideration not provided to others in the same or similar situation. 

In accordance with AFI 36-2110, Assignments, paragraph A24.5, basic eligibility for a humanitarian reassignment/deferment includes that the problem can be resolved within a reasonable period of time (normally 12 months).  The member must experience a problem involving a family member that is more severe than usually encountered by other Air Force members with a similar problem and the member’s presence is absolutely essential to alleviate the problem.  Paragraph A24.7 states humanitarian reassignment or deferment requests are usually disapproved when it is probable that the problem will exist for an indefinite period of time or the request is based on a desire to provide physical, emotional, or other support to help with the activities of daily living to a parent or parent-in-law due to age, non-terminal or chronic illness or disability, or recent death in the family.  

On 16 January 2008, the applicant received a Letter of Reprimand (LOR) for recurring issues with timeliness, lack of accountability, attendance of required meetings and effectiveness as a provider.    

The applicant received a subsequent referral OPR for the reporting period ending 8 June 2008.  Reasons for the referral report include shortcomings in personal accountability, officership, patient care and meeting attendance which led to issuance of a LOR.  His clinical duties were reduced during the rating period because of repeated lapses in his conduct, leadership and integrity.  

AF Form 469, Duty Limiting Condition Report, dated 11 August 2009, reflects the applicant was placed on duty and mobility restrictions to include no motorcycle or bicycle riding, no flying of private airplane and no complex medical decision making thru 11 August 2010.  Remarks include that the applicant was undergoing an MEB to determine fitness for continued worldwide duty and retention.  

The Commander’s Statement for MEB dated 1 September 2009, states the applicant was pending general court-martial charges and had submitted a resignation in lieu of (RILO) which was currently pending.  His commander further stated that the applicant sustained a concussion and skull fracture, spent a day in the intensive care unit and was now suffering from memory and head complaints.  The applicant has documented residual memory issues and his practice of medicine had been restricted.  It was recommended he be placed on the Temporary Disability Retired List (TDRL) to permit him time to convalesce and recuperate.   

AF IMT 348, Line of Duty (LOD) Determination, dated 11 September 2009 reflects the applicant was riding his bicycle on 15 May 2009 when a park care taker trimming hedges on the side of the road backed into him as he was traveling 15 to 20 miles per hour.  The applicant went over the handlebars and landed on his left side and his head.  He was wearing a helmet.  The ambulance arrived within several minutes and noted he was awake and alert but reported that he had a loss of consciousness which lasted approximately two minutes.  He was seen in the emergency room and admitted overnight for monitoring and was discharged the following day.  Injuries included superficial skull fracture (left temporal bone) with small associated subdural hematoma and multiple superficial abrasions on his left side, arm and shoulder.  The AF Form 348 shows on 28 September 2009, his unit commander recommended the finding of in the LOD and on 2 November 2009, the staff judge advocate concurred with the finding of in the LOD.      

According to the NARSUM for MEB dated 15 September 2009, the applicant presented for disqualifying condition of Cognitive Disorder, Not Otherwise Specified (NOS).  A head CT scan showed a two inch left temporal skull fracture without hematoma but soft tissue scalp abrasion.  The applicant reported being tired and sleepy for three weeks following the accident and spending up to 18 hours per day in bed.   The applicant’s diagnoses included Cognitive Disorder, NOS and subsequent documented cognitive impairment as noted on the neuropsychological testing and mood and personality changes that appeared to be due to the head injury.   The applicant also reported he was experiencing significant financial issues and had withdrawn money from his Thrift Savings Plan (TSP).  His wife was living in Maryland and most of his paycheck was going to support her and their child.  He felt destitute and was not receiving his usual extra medical pays since he was not working fully as a flight doctor. 

The applicant was identified by the PO690A Colonel (Medical Corps) Central Selection Board (CSB) which convened on 14 September 2009 for having a record which required possible show cause action.  Promotion selection boards are required by 10 U.S.C. § 617 to identify officers considered for promotion whose records indicate they should show cause for retention in the Air Force.  

In a memorandum dated 15 September 2009, the applicant requested the Secretary of the Air Force (SecAF) offer medical disability retirement as part of a dual action board in lieu of court martial (CM) proceedings.  He was falsely accused of misconduct and undeservedly subjected to wrongful legal and unfair punitive administrative actions.  He was subjected to inordinate psychological stressors and administrative abuse for two years and requires prolonged convalescence to recover from lasting consequences of his Traumatic Brain Injury (TBI).  In consideration of the alleged violations of pass and leave rules, in every instance his leave requests were filed and duly approved by his commander in accordance with policy.  In light of his failing health, he indicated his willingness to concede if the SecAF found it appropriate to characterize his service discharge as general (under honorable conditions).  

AF IMT 618, Medical Board Report, dated 2 October 2009, referred the applicant to the Informal Physical Evaluation Board (IPEB) for Cognitive Disorder, NOS.  

According to the AF Form 348 in the applicant’s records, on 2 November 2009, the applicant’s injury was determined in the LOD.  

On 10 November 2009, the applicant received an Article 15 for dereliction of his duties.  The AF Form 3070C, Record of Nonjudicial Punishment Proceedings, reflects the applicant on four occasions failed to refrain from using his Government Travel Card (GTC) for only official travel related expenses.  Additionally, on two separate occasions, he willfully failed to pay the full amount of his GTC bill by the due dates.  

On 18 November 2009, the applicant was convicted by CM.  General Court-Martial Order, Number 21, dated 19 February 2010 reflects the following charges and specifications:  

	Charge I: Article 86.  Plea: Not Guilty. Finding Guilty.

	Specification 1: Did at or near Fairchild AFB, WA on or about 16 January 2008, without authority, go from his appointed place of duty.  Plea: Not Guilty.  Finding: Not Guilty.

	Specification 2: Did on or about 11 November 2006, without authority, absent himself from his unit and remained absent until on or about 12 November 2006.  Plea: Not Guilty.  Finding: Guilty.

	Specification 3: Did on or about 23 November 2006, without authority, absent himself from his unit and remained absent until on or about 27 November 2006.  Plea: Not Guilty.  Finding: Guilty.

	Specification 4: Did on or about 29 December 2006, without authority, absent himself from his unit and remained absent until on or about 2 January 2007.  Plea: Not Guilty.  Finding Guilty. 

	Specification 5: Did on or about 6 January 2007, without authority, absent himself from his unit, and remained absent until on or about 7 January 2007.  Plea: Not Guilty.  Finding: Guilty.  

	Specification 6: Did on or about 20 January 2007, without authority, absent himself from his unit and remained absent until on or about 20 January 2007.  Plea: Not Guilty.  Finding: Guilty.

	Specification 7: Did on or about 18 February 2007, without authority, absent himself from his unit and remained absent until on or about 19 February 2007.  Plea: Not Guilty.  Finding: Guilty.

	Specification 8:  Did on or about 24 February 2007, without authority, absent himself from his unit and remained absent until on or about 25 February 2007. Plea: Not Guilty.  Finding: Guilty.

	Specification 9:  Did on or about 4 May 2007, without authority, absent himself from his unit and remained absent until on or about 6 May 2007.  Plea: Not Guilty.  Finding: Guilty.

	Specification 10:  Did on or about 30 June 2007, without authority, absent himself from his place of duty and remained absent until on or about 1 July 2007.  Plea: Not Guilty.  Finding: Guilty.

	Specification 11:  Did on or about 4 July 2007, without authority, absent himself from his unit and remained absent until on or about 4 July 2007.  Plea: Not Guilty.  Finding Guilty.  

	Specification 12: Did on or about 22 November 2007, without authority, absent himself from his unit and remained absent until on or about 26 November 2007.  Plea: Not Guilty.  Finding: Guilty.

	Specification 13:  Did on or about 29 December 2007, without authority, absent himself from his unit and remained absent until on or about 29 December 2007.  Plea: Not Guilty. Finding: Guilty.

	Specification 14:  Did on or about 5 January 2008, without authority, absent himself from his unit and remained absent until on or about 6 January 2008.  Plea: Not Guilty.  Finding: Guilty.

	Specification 15:  Did on or about 1 March 2008, without authority, absent himself from his unit, and remained absent until on or about 1 March 2008.  Plea: Not Guilty.  Finding Guilty.

Charge II: Article 107. Plea: Not Guilty.  Finding: Guilty.  

Specification 1: Did on or about 29 November 2006, with intent to deceive, sign an official record, Leave Request/Authorization, for the dates of 13 November 2006 through 22 November 2006, which was false in that he was absent from the Fairchild AFB, WA area from 10 November 2006 through 27 November 2006 and was required to take leave from 11 November 2006 through 27 November 2006.  Plea: Not Guilty.  Finding:  Guilty.

Specification 2: Did on or about 10 January 2007, with intent to deceive, sign an official record, Leave Request/Authorization, for the dates of 3 January 2007 through 5 January 2007, which was false in that he was absent from the area from 29 December 2006 through 7 January 2007 and required to take leave from 29 December 2006 through 7 January 2007.  

Specification 3:  Did on or about 30 January 2007, with intent to deceive, sign an official record, Leave Request/Authorization, for the dates of 16 January 2007 through 19 January 2007, which was false in that he was absent from the area from 15 January 2007 through 20 January 2007 and was required to take leave from 16 January 2007 through 20 January 2007.  Plea: Not Guilty.  Finding: Guilty.  

Specification 4: Did on or about 5 March 2007, with intent to deceive sign an official record, Leave Request/Authorization, for the dates of 20 February 2007 through 23 February 2007, which was false in that he was absent from the area from 17 February 2007 through 25 February 2007 and required to take leave from 18 February 2007 through 25 February 2007.  Plea: Not Guilty. Finding: Guilty.  

Specification 5:  Did on or about 24 May 2007, with intent to deceive, sign an official record, Leave Request/Authorization, for the dates of 7 May 2007 through 23 May 2007, which was false in that he was absent from 3 May 2007 through 23 May 2007 and required to take leave from 4 May 2007 through 23 May 2007.  Plea: Not Guilty.  Finding: Guilty.

Specification 6: Did on or about 13 July 2007, with intent to deceive, sign an official record, Leave Request/Authorization, for the dates of 2 July 2007 through 3 July 2007, which was false in that he was absent from 29 June 2007 through 4 July 2007 and required to take leave from 30 June 2007 through 4 July 2007.  

Specification 7:  Did on or about 8 January 2008, with intent to deceive, sign an official record, Leave Request/Authorization, for the dates of 11 November 2007 through 21 November 2007, which was false in that he was absent from 11 November 2007 through 26 November 2007 and required to take leave from 11 November 2007 through 26 November 2007.  Plea: Not Guilty.  Finding: Guilty.

Specification 8:  Did on or about 8 January 2008, with intent to deceive, sign an official record, Leave Request/Authorization, for the dates of 30 December 2007 through 4 January 2008, which was false in that he was absent from the area from 28 December 2007 through 6 January 2008 and required to take leave from 29 December 2007 through 6 January 2008.

Specification 9:  Did on or about 12 March 2008, with intent to deceive, sign an official record, Leave Request/Authorization, for the dates of 2 March 2008 through 10 March 2008 which was false in that he was absent from the area from 29 February 2008 through 10 March 2008 and required to take leave 1 March 2008 through 10 March 2008.  Plea: Not Guilty.  Finding: Guilty.  

Specification 10:  Did on or about 26 November 2007, with intent to deceive, make to his supervisor an official statement that his car was not functioning properly and he was having it repaired, which statement was totally false.

Additional Charge, Article 133, Plea: Not Guilty.  Finding Guilty.   

Specification 1: Did on or about 26 February 2007, knowingly, wrongfully and dishonorably submit to the AFBCMR a fabricated memorandum purportedly authored by his commander.  Plea: Not Guilty.  Finding: Guilty.

Specification 2, on or about 17 September 2007 he wrongfully and dishonorably submitted to the SecAF a package requesting he reexamine the decision of the AFBCMR which denied his appeal to remove an Article 15 from his record, knowing that it contained a fabricated memorandum.
 
The sentence adjudged on 18 November 2009 included 11 months confinement and a reprimand.  The reprimand states, “The applicant violated and rejected the core values of integrity and service before self by lying to superiors and cheating the system and repeatedly used lies and deceit to serve his personal desires.  The fact that the CM did not adjudge a punitive discharge is not a free ticket for him to remain in the Air Force unchanged.”

On 20 November 2009, the applicant received a LOR for failure to report to the sentencing portion of his CM with proper uniform items for confinement.  

On 2 April 2010, 18 AF/CC issued a show-cause letter related to the applicant’s disciplinary actions over the past five years.  The applicant acknowledged receipt of the show-cause action on 7 April 2010.  

In a letter dated 30 April 2010, the applicant’s Area Defense Counsel (ADC) in the second response to the show cause notification memorandum indicated that because the applicant was facing CM charges, his MEB could not undergo disability evaluation in accordance with AFI 36-3212, Physical Evaluation for Retention, Retirement and Separation, and a new MEB would be required since the medical documentation would be more than six months old upon his release from confinement.  Because the MEB was held in abeyance, dual action processing would be required.  

In a letter dated 4 May 2010, the 18 AF/CC indicated he understood that the applicant was at the time pending a MEB which required dual processing of the case.  The 18 AF/CC declined to delay the matter further and noted his intent to convene a Board of Inquiry (show cause for retention).  

On 25 August 2010, a BOI convened and recommended the applicant be discharged with a UOTHC pursuant to AFI 36-3206, Administrative Discharge Procedures for Commissioned Officers, paragraph 3.6.5 for serious or recurring misconduct.  In accordance with AFI 36-3206, Administrative Discharge Procedures for Commissioned Officers, Chapter 7, Board of Inquiry, BOI is an administrative forum whereat a panel of three officers outside of the Respondent’s chain of command hears evidence adduced by the government and the Respondent; the applicant was represented by counsel with an opportunity to present evidence and cross examine government witnesses and make opening and closing arguments.

In the applicant’s Post-Board Submission of Matters to Show Cause Memorandum dated 1 October 2010, the applicant requested the show-cause authority non-concur with the BOI’s recommendation that he be discharged with a UOTHC and that he be permitted to retire with a general discharge to preserve his VA benefits.  The applicant stated in the course of his career he flew in operations around the world, to include Bosnia in 1996 to 1997, a relief trip to Maputo, Mozambique and was twice posted in Bangladesh for support of flooding operations.  He also participated in 18 separate joint training exercises in Thailand, Australia and Korea and served in the skies over Kuwait, Kyrgyzstan and Afghanistan and was awarded the Air Medal for his accomplishments.  He also made highly valued contributions to medical science to include the rare opportunity to rediscover and treat a long forgotten parasitic disease when seven special operators became sick while on a field training exercise in Malaysia.  He asked that his disability be considered and notes he was badly impaired by a serious TBI which he has not fully recovered from.  Because of his injury, he may have difficulty finding gainful employment should he be discharged and that his family would most certainly lose their home.  He would need access to VA health care as he has a confirmed diagnosis of PTSD and suffers from various infirmities.  He was prohibited from introducing the entire NARSUM document to the BOI.  It was outside of the scope and authority to limit his unsworn statement and eliminate medical information that was material to the board members’ decision.  The legal error resulted in substantial prejudice.  He has been punished to the full extent of the law in accordance with the sentence of his CM.  He served 264 days in confinement and has been duly reprimanded.  

A subsequent AF Form 3070, dated 6 October 2010, reflects the applicant received an Article 15 for violation of Article 92 in that on or about 22 August 2010 at or near Port Angeles, WA he was derelict in the performance of his duties by failing to refrain from using his GTC for other than official travel related expenses with a purchase of $192.56 at Rite Bros. Aviation, Incorporated.  He was also derelict in the performance of his duty on or about 31 August 2010 in that he willfully failed to refrain from using his GTC with a purchase of $220.68 at Silver Wing Flight Services.  He was also in violation of Article 107, UCMJ in that on or about 23 September 2010, near Fairchild AFB, WA he knowingly, with intent to deceive, make an official statement to a detective that his GTC purchases had been authorized by his commander which he knew to be false.    

On 19 October 2010, the 18 AF/CC transmitted the BOI record to AFPC/DPPRS in accordance with AFI 36-3206, Administrative Discharge Procedures for Commissioned Officers, paragraph 7.36.2. He stated he considered the record of proceedings of the BOI, the advice of the staff judge advocate and the applicant’s post-board submission matters and concurred with the BOI’s recommendation that the applicant be discharged with a UOTHC.  The applicant committed serious and recurring misconduct over the span of six and one half years.  Despite corrective actions, he escalated his misconduct with further unauthorized absences, false leave requests and false official statements.  While under charges for the significant misconduct, he misused and failed to pay his GTC.  As further evidence of his blatant disregard for rules, he disobeyed a written order to bring the appropriate items necessary for confinement to the sentencing portion of his CM.  The 18 AF/CC stated the applicant is not suitable for continued service in the Air Force.  

On 23 November 2010, AF/JAA concluded the case file was legally sufficient to support the 18 AF/CC endorsement of the BOI’s recommendation the applicant be discharged with a UOTHC.  AF/JAA found no errors or irregularities that prejudiced any of the applicant’s substantive rights and that the 37 substantiated allegations presented a compelling portrait of the applicant who should be discharged with a UOTHC service characterization.

In a letter dated 3 December 2010 to AFPC/DPSD, the 92nd Medical Group, Chief, Medical Staff (92 MDG/SGH) requested retraction of the applicant’s MEB.   The letter states the applicant was court-martialed and sentenced to 11 months confinement which stopped the MEB process at the DPSD level.  By the time the applicant was released from confinement on 7 August 2010, it had been nearly 17 months since his injury.  The applicant did not have any obvious mental difficulty or physical difficulty.  He engaged in complex planning and held long goal directed conversations without apparent difficulty and had even piloted his private aircraft without incident.  Evaluation and treatment of his various medical complaints continued to include a referral to Madigan Army Medical Center on 14 October 2010 where he was given a full neuropsychological test battery.  Their diagnosis was malingering and history of at most a concussion and lack of genuine impairment.  The MEB was retracted for lack of an unfitting condition.  

AFI 36-3212, Physical Evaluation for Retention, Retirement and Separation, 2 February 2006, paragraph 2.6, states “Recall of Case.  If a major change in the diagnosis or in member’s condition is discovered, the referring Medical Treatment Facility (MTF) commander may recall the case for further medical evaluation and new medical board or addendum as appropriate.  The commander sends a report of circumstances and request for recall to AFPC/DPSD.” 

On 8 December 2010, the Secretary of the Air Force directed the applicant be discharged with a UOTHC discharge.  

On 10 December 2010, he was furnished a UOTHC discharge and a narrative reason for separation of “Misconduct” (Serious Offense).  His DD Form 214, Certificate of Release or Discharge from Active Duty, reflects he served 19 years 9 months and 29 days of active service.  The applicant’s period of confinement from 18 November 2009 to 7 August 2010 is noted in Item 29, Dates of Time Lost During this Period.   The applicant’s Total Active Federal Military Service Date (TAFMSD) and Total Active Federal Commissioned Service Date (TAFCSD) were adjusted to 9 February 1991 as a result of the confinement.  

In accordance with AFI 36-2134, Air Force Strength Accounting Duty Status Program, paragraph 3.4, Any time a member spends in Absent Without Leave (AWOL) status, desertion or any confinement is considered non-creditable service; also referred to as lost time or “bad time.”  When lost time is charged, a member's service dates are adjusted forward.  

Per AFI 36-3203, Service Retirements, paragraph 2.1.1, Unless granted a waiver under some provision of law, to be eligible for a non-disability active duty retirement, officers and enlisted members of the active or Reserve Component must complete 20 years of Total Active Federal Military Service (TAFMS).  

In a memorandum dated 11 January 2012, AFPC/DPSDD informed the applicant he was erroneously discharged prior to the finalization of his disability case.  The letter states his administrative separation package and disability case should have been forwarded to the Secretary of the Air Force Personnel Council (SAFPC) for adjudication and recommended he apply to the AFBCMR for a correction of his record.

On 2 February 2012, the applicant submitted a DD Form 149, Application for Correction of Military Record, requesting his UOTHC discharge be revoked, he be reinstated on active duty pending disposition of a MEB, he be retired with a 80 percent disability rating, his discharge be upgraded to honorable or in the alternative, general (under honorable conditions), his narrative reason for separation be changed from “Misconduct” to “Secretarial Authority,” his Article 15 actions of November 2009 and October 2010 be voided and removed from his record, his LOR issued in 2009 be removed from his record and he be medically retired with 24 plus years of service.    

On 2 July 2013, the Board denied the applicant’s requests.  The Board noted the applicant’s assertion of error was supported by a memorandum dated 11 January 2012 sent to him by the AFPC Disability Operations Branch.  However, the Board considered what the likely outcome of the applicant’s case would have been had no error occurred.  In this respect, the Board agreed with the SAFPC analysis dated 3 January 2013, that the applicant’s MEB was appropriately held in abeyance, the 92 MDG retracted the MEB case on 3 December 2010 and that even if the likely outcome of the applicant’s cognitive disorder had been deemed unfitting at the time of his discharge, the fact that a majority of his misconduct occurred before his head injury, SAFPC found no mitigating factors to disregard the disciplinary action and determined the administrative action would have been appropriate.  Further, the Board also found no error in the convening of the BOI and therefore found his assertion he was denied rights due him to be unfounded.  In conclusion, the Board found the discharge proceedings were proper and the characterization of the discharge was appropriate and found no basis to upgrade the discharge, change the narrative reason for separation or grant any of the requested relief.  

According to the DVA rating decision dated 5 June 2015, the applicant’s rating for PTSD with persistent depressive disorder claimed as adjustment disorder with anxiety/major depression dysthymia/dysphoria was increased from 70 percent to 100 percent effective 6 November 2015 

Secretary of Defense, Supplemental Guidance to Military Boards for Correction of Military/Naval Records Considering Discharge Upgrade Requests by Veterans Claiming Post Traumatic Stress Disorder, dated 3 September 2014, states the BCMR will fully and carefully consider every petition based on PTSD brought by each veteran.   Liberal consideration will be given in petitions for changes in characterization of service for members whose service treatment record entries document one or more symptoms with the diagnostic criteria of PTSD or PTSD related conditions.  Special consideration will be given to VA determinations which document PTSD or PTSD related conditions connected to military service and liberal consideration in cases where civilian providers confer the diagnosis of PTSD or PTSD related symptoms at the time of service or the PTSD or a PTSD-related disorder existed at the time of discharge which might have mitigated the misconduct that caused the under other than honorable conditions characterization of service.  Under Consideration of Mitigating Factors, it noted 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.   

Per McCourt v. United States, 215 Ct. Cl. 894, 895 (1977); Alyeska Pipeline Service Co. v. Wilderness Society, 421 U.S. 240 (1975); 28 U.S.C. § 2412 (1976); the United States cannot be made to pay legal expenses absent the authorization of a specific statute or contractual provision.

Per 10 U.S.C. § 533, officers may receive Constructive Service Credit (CSC) for experience as a medical professional in regards to initial grade and Date of Rank (DOR) but time at USUHS is not creditable for pay or active duty length of service.   

The remaining relevant facts pertaining to this application are contained in the memorandum prepared by the Air Force office of primary responsibility (OPR), which are attached at Exhibits M thru T.    

AIR FORCE EVALUATION:

AFPC Disability Office states it is out of their purview to make a recommendation due to the manner in which the applicant was discharged.  The applicant was referred to the Disability Evaluation System (DES) on 7 October 2009.  On 3 November 2009, prior to the IPEB’s review of the applicant’s case, their office was notified the applicant was pending CM charges which could result in a punitive discharge.  In accordance with AFI 36-3212, Physical Evaluation for Retention, Retirement and Separations, the case was placed on hold pending the outcome of the CM proceedings.

In January 2012, during a MEB status check by the MEB case manager, their office was informed the applicant had been administratively discharged.  Discharge was verified, special orders were confirmed and a letter of erroneous discharge was sent to the applicant.  Per AFI 36-3212, Chapter 1, paragraph 1.3.1, those charged with one or more offenses that could result in dismissal or punitive discharge and those convicted and sentenced to dismissal or punitive discharge, may not undergo a disability evaluation.  As such, the PEB will be suspended to allow completion of CM proceedings.  Only upon appellate review, if the punitive charges are overturned, the member would be eligible to continue the PEB process and a new/updated MEB would be required.

In the applicant’s case, the CM findings, dated 19 February 2010, did not include a punitive discharge but rather confinement.  Upon completion of the confinement, the AFPC Disability Office should have been notified of the applicant’s release and the MEB should have resumed at this point by the base level Medical Treatment Facility (MTF) for PEB processing and further consideration under the dual action process, instead the applicant was erroneously discharged under administrative actions with 19 years, 10 months and 2 days of active service.

A complete copy of the AFPC Disability evaluation is at Exhibit M.

In an additional advisory, the AFPC Disability Office states had their office been notified when the applicant was released from confinement and the PEB resumed, it would have taken approximately two weeks for the IPEB to conclude.  If the applicant disagreed with the IPEB findings and requested a formal board hearing the timeline for the Formal PEB (FPEB) would have been approximately 45 days.  If the applicant non-concurred with the FPEB, SAFPC processing time would have been approximately two weeks under the legacy DES.  The AFPC Disability Office finds it difficult to fathom the DES could have protracted for 10 months to get the applicant to 20 years, which is specifically prohibited by AFI 36-3212, paragraph 1.6.  In the best case scenario, the DES processing would have likely added three months to the applicant’s TAFMS (9 February 1991).

On the other hand, had the PEB resumed when the applicant came out of confinement and he agreed with the IPEB, the case would still have been sent to SAFPC for a dual action determination, administrative or medical discharge.  Additionally, the findings of the IPEB, FPEB and SAFPC can vary depending on the medical condition(s) and the severity of the unfitting condition(s), to include Discharge With Severance Pay (DWSP), TDRL or permanent retirement regardless of years, with the rating of the unfitting condition being at 30 percent or higher for a TDRL or permanent retirement.  The AFPC Disability Office cannot speculate on how the boards may have adjudicated this case as no boards were conducted.

A complete copy of the additional AFPC Disability Office evaluation is at Exhibit P.

In another additional evaluation, the AFPC Disability Office states upon further review, the IPEB board advised that had they received the attached 92 MDG/SGH memorandum dated 3 December 2010 requesting retraction of the MEB; in which the applicant demonstrated ability to perform complex tasks, to include piloting a privately owned aircraft, the board would have approved the recall, and the applicant’s disability case would have been closed and returned without action, effective the date of receipt of the memorandum per AFI 36-3212, paragraph 2.6.

A complete copy of the additional AFPC Disability Office evaluation, with attachment, is at Exhibit S.

AFPC/DP2STM-SEP found no evidence of an error or injustice in the discharge processing and provides their evaluation for informational purposes only.  In accordance with AFI 36-2306,  Administrative Discharge Procedures for Commissioned Officers,  any time before the SecAF takes final action on the case, a respondent who is eligible to retire may apply for retirement under AFI 36-2603, Service Retirements.  If a BOI recommends discharge of an officer who is otherwise eligible for voluntary retirement under any provision of law, the officer shall be retired in the grade and with the retired pay for which he would be eligible if he retired under such provisions regardless of the BOI’s recommendation.  

In the applicant’s case, his TAFMSD and TAFSCD were 9 February 1991.  The BOI convened on 25 August 2010 and the SecAF decided on 8 December 2010.  This indicates the applicant was not retirement eligible and he would not have been able to apply for retirement.  Further, the applicant’s record includes a letter dated 22 October 2010 indicating that the applicant had not yet reached retirement eligibility.  The applicant’s 20th year of service would have been reached in February 2011.  

A complete copy of the AFPC/DP2STM-SEP evaluation is at Exhibit N.

AFPC/DP2STM found no evidence of an error or injustice in the discharge versus retirement processing and provides their evaluation for informational purposes only.  The applicant’s TAFMSD and TAFSCD were 9 February 1991.  He would not have been eligible to retire until 1 March 2011.  The SecAF determination was made on 8 December 2010 and the applicant was separated on 10 December 2010, which made him ineligible to retire under resignation in lieu of (RILO).  Had the applicant been undergoing a PEB, then he would be ineligible to apply for retirement until cleared by the MTF and if approved for a medical retirement, his retirement would not have been processed by their office.  Per AFI 36-3212, paragraph 4.5, the MPF must not retire, discharge, nor release a member from active duty before receiving the final decision in the form of retirement orders or instructions from AFPC/DPFD directing disposition.  AFPC/DPFDD (Medical Standards) provides orders for members who are determined to retire for medical disabilities.  

AFI 36-3203, paragraph 2.1.1 states, to be eligible for non-disability retirement, officers and enlisted members must complete 20 years of TAFMS.  Paragraph 2.1.4.1, states, if no restrictions, the retirement application may be submitted up to 12 months in advance of the desired retirement date.  The applicant was under restrictions due to his pending administrative discharge.  If a member is subject to action that could lead to involuntary discharge and is retirement eligible as of the date of application, then the restriction can be waived if it is in the best interest of the Air Force and when the discharge board convening authority decides to suspend discharge processing.  In this case, on 8 December 2010, SAF/MRBP, acting under the authority delegated by the SecAF, directed the applicant be discharged with a UOTHC service characterization.  

A complete copy of the AFPC/DP2STM evaluation is at Exhibit N.  

SAF/MRBP provides information on the FY2010 processing time for dual action cases.  Based on the available FY2010 data on dual actions cases from the Air Force Review Boards Agency’s Case Management and Tracking System (CMTS) data base, the average processing time of a dual action case from intake to case closure was 47.2 days and the median was 21.5 days.  The SAFPC has a long-standing practice of expediting case processing when requested and for good cause.  For example, if a respondent is approaching Date of Separation (DOS), Expiration Term of Service (ETS), scheduled CM date, retirement eligibility date, has a severe medical issue warranting expedited resolution or for other good cause, the SAFPC could choose to hear the case ahead of the normal first-in, first-out workflow.  In such cases, processing times were usually faster than average.

A complete copy of the SAFPC evaluation is at Exhibit Q.

AFPC/JA recommends denial of the requests.  The applicant has not shown, by a preponderance of evidence, that his administrative discharge was the result of an error or that it constituted an injustice.  AFPC/JA agrees with the SAFPC conclusion in the initial case that execution of the applicant’s administrative discharge processing over disability processing would have been correct.  Finally, there is no reason to dispute AFPC/DPFDD’s conclusion that completion of the disability process and dual action determination would not have extended to the applicant’s retirement eligibility date.

The crux of the applicant’s contention is that the AFBCMR improperly failed to consider his pending medical disability case when upholding the applicant’s discharge from service.  The key factor missing from both the AFPC 11 January 2012 letter to the applicant and the AFPC/DPFDD evaluation dated 18 October 2016 to the AFBCMR is the 3 December 2010 notification from the Chief, Medical Staff, at the applicant’s MTF withdrawing the MEB’s conclusion.  Withdrawal of an MEB’s conclusions is authorized pursuant to AFI 36-3212, paragraph 2.6. The letter was allegedly sent to AFPC/DPSD.  The unavailability of the letter at APFC has bearing on the conclusions contained in the 18 October 2016 advisory; however, the SAF/MRBP memorandum dated 11 January 2013 contains language quoted from the letter, therefore, there is no reason to dispute the letter’s existence and that it ultimately made it to the decision-makers at SAFPC.  AFPC/JA confirmed with AFPC/DPFDD that if a MEB recall request is received, a disability case is not processed any further.

Given the 3 December 2010 letter withdrawing the MEB’s conclusions, the SAF/MRPB memorandum of 11 January 2013 determined the disability processing was closed and that it would have been improper to forward as a dual action case for SAFPC adjudication. AFPC/JA defers and ultimately agrees with the SAFPC opinion on the termination of the applicant’s disability processing and the subsequent inappropriateness of forwarding the applicant’s case for adjudication.  

A timeline of the events established from the case file and advisories reflect that on 9 May 2009, the applicant suffered a bicycle accident that resulted in a head injury among other injuries.  On or about 2 October 2009 an MEB was conducted.  On 22 October 2009, the MEB was received by AFPC/DPSD.  On 3 November 2009, the MEB was held in abeyance from consideration by the IPEB based on the pending CM charges.  On 18 November 2009, the applicant was sentenced to confinement and a reprimand based on the CM sentence but did not receive a discharge.  Subsequently, on 2 April 2010, administrative discharge action was initiated.  On 25 August 2010, a BOI convened and recommended the applicant be discharged with a UOTHC.  On 3 December 2010, the Chief, Medical Staff, at the applicant’s MTF allegedly submitted a letter to AFPC/DPSD withdrawing the MEB’s conclusion.  The letter noted the 17 months since the injury, lack of obvious mental or physical difficulty, and full neuropsychological test battery for the conclusion that the MEB findings were withdrawn for lack of an unfitting conditions.  The UOTHC was ultimately approved and the applicant was discharged on 10 December 2010 with a UOTHC characterization.   Via a memorandum dated 11 January 2012, AFPC/DPSDD notified the applicant he was erroneously discharged prior to finalization of his case and that his case should have been forwarded to SAFPC for adjudication.  AFPC/JA confirmed with AFPC/DPFDD that if a MEB recall request is received, a disability case is not processed any further.

A complete copy of the AFPC/JA evaluation is at Exhibit R.

The BCMR Psychiatric Consultant finds insufficient evidence to supplant the applicant’s administrative discharge with a medical retirement.

The applicant sustained a mild concussion, also referred to as mild TBI on 15 May 2009.  The initial course of the applicant’s disease was very typical, as majority of patients with mild or moderate TBI initially experience headaches, fatigue, dizziness, decreased attention, memory disturbance, slowed speed of information processing, distractibility, hypersensitivity to noise and light, irritability, easy loss of temper, sleep disturbances and anxiety.  On review of records, it is apparent that when the applicant presented for a follow-up on 26 May 2009, he experienced only one of the symptoms, dizziness.  During the applicant’s later evaluations, he recalled significantly more numerous symptoms than he had experienced during the initial recovery period; however, they remained to be consistent with typical presenting complaints of individuals with mild brain injury.

The Psychiatric Consultant is puzzled by the applicant’s rushed referral for a MEB within three months of his bicycle accident without giving him enough time to recover and without referrals for neurocognitive rehabilitation.  The outcome of mild TBI is a subject of debate in the medical community and is more unpredictable with milder injuries.  However, the majority of patients with mild TBI experience substantial resolution of cognitive, somatic and emotional symptoms within one to six months after injury.  Despite favorable outcomes, there is a subcategory of patients who continue to experience cognitive and psychological ailments.  The major issue is post-concussive symptoms following a mild TBI/concussion.  These symptoms are very nonspecific and occur with high rates in healthy individuals as well as in persons with depression and other chronic illnesses which can potentially present diagnostic and rating challenge.  Risk factors shown to be predictors of poor outcome after concussion include premorbid psychiatric illness, family history, certain personality traits, mental disorders, depression and anxiety.   Based on the review of the applicant’s 2009 records, it is apparent his post-concussive symptoms grew with time as opposed to the expected resolution/improvement.  The Psychiatric Consultant opines the symptoms experienced by the applicant in the first month of the injury can be attributed to mild TBI; however, the worsening of the illness and addition of new symptoms signify the arousal of comorbid conditions.

The Psychiatric Consultant has identified problems with all three of the applicant’s neuropsychological evaluations which range from significant cognitive impairment to malingering.  As stated by the evaluator in the applicant’s October 2010 evaluation, the original testing performed in August 2009 lacked any validity measurement scales.  The report states there was “no indication of malingering or exaggeration of his condition,” however, it is unclear how the neuropsychologist arrived to that determination.  Specialized tests were developed for recognition of exaggeration of symptoms, poor effort and inconsistent reporting, nevertheless, it appears they were not included in the test batteries used in the 2009 evaluation.  Furthermore, some tests have embedded validity scales but were not mentioned in the final report.  It is not a surprise that a neuropsychologist questioned the original results and invalidated them.  

The neuropsychological evaluation in September 2010 portrayed a very different picture of the applicant’s abilities.  The evaluator concluded the applicant’s neurocognitive deficits are largely exaggerated and malingered.  The Psychiatric Consultant does not question the testing results but opines that the conclusion reached is too harsh and biased.  It is extremely difficult in medicine to accuse an individual of malingering with 100 percent certainty and there are a multitude of factors that can decrease effort.  However, none of the variables were entertained by the evaluating provider and the MRI findings of axonal injury, which confirms the TBI, were not considered.  Moreover, in the event of true malingering, the underlying cognitive deficits or psychological dysfunction cannot be ruled out.  Consequently, the Psychiatric Consultant finds both neuropsychological reports unbalanced, presenting two ends of the spectrum.  Despite some shortcomings in the third evaluation of October 2010, the overall findings are mostly within normal range with minimal cognitive impairments and is used in reaching the final conclusion about the applicant’s cognitive capacity at the time of his discharge.

Any number of emotional and behavioral difficulties that existed in milder form before the brain injury can be accentuated after it.  The applicant’s psychosocial environment was not conducive to recovery.  He experienced tremendous psychosocial stressors and he lacked the vital component of recovery, a support network.  As time advanced, his mental health symptoms dominated his presentation.  However, the treating psychiatrist insisted on the diagnosis of cognitive disorder and persistently misattributed his complaints to the brain injury.   The Psychiatric Consultant opines the applicant’s concussion resolved, however, he continued to exhibit significant psychiatric symptoms.  The post-discharge DVA records support this view and clearly document his present inability to hold employment due to his anger, impatience and interpersonal conflicts, not due to cognitive deficits.

In the fall of 2010, the applicant had minimal symptoms of TBI and it was not an unfitting condition.  However, his mental health issues were disabling and caused significant impairment of function.  Unfortunately, the assortment of psychiatric and behavioral symptoms demonstrated by patients with TBI do not always allow for specific diagnosis based on Diagnostic and Statistical Manual of Mental Disorders (DSM) criteria.  Nevertheless, diagnosis of Depression, NOS and Anxiety, NOS would be very appropriate given the applicant’s symptom and functional impairment.  The Psychiatric Consultant found no evidence of PTSD at the time of his separation from military service.  

Addressing the applicant’s implicit desire for a medical retirement, the military Disability Evaluation System (DES) established to maintain a fit and vital fighting force can by law, under 10 U.S.C., only offer compensation for those service incurred diseases or injuries which specifically rendered a member unfit for continued active service and were the cause for career termination; and then only for the degree of impairment present at the “snap shot” time of separation and not based on post-service progression of disease or injury.  To the contrary, the DVA under 38 U.S.C. is empowered to offer compensation for any medical condition with an established nexus with military service, without regard to its impact upon a member’s fitness to serve, the narrative reason for release from service or the length of time transpired since date of discharge.  

A complete copy of the BCMR Psychiatric Consultant’s evaluation is at Exhibit T.   

APPLICANT'S REVIEW OF AIR FORCE EVALUATION:

Counsel states that none of the applicant’s three neuropsychological examinations should have been used as a basis for recalling and cancelling the MEB.  The BCMR Psychiatric Consultant invalidated the first and second neuropsychological examinations following his 15 May 2009 TBI and found shortcomings with the third evaluation reported on 19 November 2010.  The Psychiatric Consultant also incorrectly states the third evaluation was conducted in October 2010; however, it was conducted on 19 November 2010.  

Despite clear evidence his medical conditions rendered him unfit, his MEB was stopped and not processed as a dual action case resulting in an injustice to the applicant.  It was unfair to exclude his mitigating medical conditions from consideration during the BOI; thereby depriving him of an affirmative defense to several allegations.  The applicant previously raised improper constitution of the BOI and other related legal errors and the CoFC expressly incorporates those claims herein.  It is in the interests of both propriety and equity that the applicant’s records be corrected to reflect mitigating effect that his devastating illnesses and injuries had on his distinguished military career.

The third neuropsychological examination showed TBI and documented PTSD which existed at the time of his discharge and has since been supported by three examinations conducted by the DVA between October 2010 and March 2012.  On 3 September 2014, the SecDef directed BCMRs give liberal consideration in petitions for changes of characterization of service when service treatment record entries document PTSD or related conditions.  It further states “In cases where service records or any document from the period of service substantiate the existence of one or more symptoms of what is now recognized as PTSD or PTSD-related condition during the time of service, liberal consideration will be given to finding that PTSD existed at the time of service.”  Additionally, in cases which PTSD or PTSD related conditions may be reasonably determined to have existed at the time of discharge, those conditions will be considered potential mitigating factors in the misconduct that caused the under other than honorable conditions characterization of service.  

The BCMR Psychiatric Consultant appears to have considered only those records subsequent to the applicant’s head injury.  She failed to consider the impact of the applicant’s 2006 assignment to Fairchild AFB when his request for humanitarian deferment reassignment was denied.  Thus, beginning in 2006, the applicant experienced family circumstances and extraordinary duty stressors which constitute mitigating factors addressed in the SecDef memorandum.  Following denial of his humanitarian deferment, the applicant's wife and child remained in Maryland for more than four years to better care for his ailing mother.  The BCMR Psychiatric Consultant recognized the applicant’s “mood and anxiety symptoms reached the level of unfitness” but erroneously denied that “mental health condition had no nexus with administrative charges.”  The applicant’s mental health conditions were clearly linked to work stress, documented harassment from his supervisor and life circumstances related to the misconduct adjudicated as his court martial.  These mental health conditions were mitigating circumstances which should not be ignored or discounted.  Following a period of increasing stress and unmanageable work stress, the applicant experienced a nervous breakdown.  The applicant was placed on a psychological profile which restricted him from sensitive duty and his medical credentials were held in abeyance.  At the intake evaluation, his medical evaluator noted “possible paranoid delusions” and that he had filed a restraining order against his supervisor.  

In a note dated 30 September 2009, a clinical psychiatrist considered the diagnosis of PTSD and that the applicant reported symptoms of disturbing dreams and imagery associated with sleep disturbance, anxiety and depressed mood, a sense of depersonalization, hypervigilance and an exaggerated startle reflex, consistent with PTSD.  Clinical notes from examinations of 10 September 2009 to 11 December 2009 state, “Applicant participated in mental health treatment with psychiatrist.  He continued to have multiple psychosocial stressors and various cognitive and psychiatric symptoms.  The psychiatrist entertained the idea of PTSD once, but it was never explored and the diagnosis remained Cognitive Disorder.”  

The Psychiatric Consultant’s omission of certain findings which support the diagnosis of PTSD is significant because these omitted findings are evidence that the condition existed, whether a diagnosis was rendered or not.  The Psychiatric Consultant also omitted the 13 August 2009 assessment and plan which stated “brain injury traumatic: profile updated for MEB and no flying, bicycle, motorcycle riding and some job restrictions.”  The Psychiatric Consultant recognized that the applicant suffers from mood disturbance, including clinical depressions and anxiety disorder although she illogically refutes a PTSD condition in spite of medical evidence.   

On 10 September 2010, the Federal Aviation Administration (FAA) denied the applicant issuance of an airman medical certificate based on his head injury.  This denial led to the revocation of his pilot’s license on 5 July 2011.  Therefore, the applicant was medically unfit for civil aviation which is contrary to the 3 December 2010 memorandum that the applicant was flying his plane.  

The applicant was in disability channels at the time of his release as documented by the 11 January 2012 AFPC Disability memorandum. Allegedly, the cancellation of the MEB was requested, yet no hard or digital copy of this request has been found in any agency records.  Assuming arguendo that the request exists, the legal advisory opinion indicates it was invalid because it was based on the invalid October 2010 psychological evaluation.  The legal advisory conclusion that dual action processing was unnecessary is invalidated by the BCMR Psychiatric Consultant’s findings and the applicant’s medical records.

The AFPC Disability Office advisory opinion makes broad generalizations and assumptions without knowing anything about the applicant’s case.  The advisory opinion is neither reliable nor determinative for the outcome of the applicant’s approval.  The applicant requests that the Board consider his four years of USUHS training retroactive for his TAFSD even though those four years are ineligible for calculating retirement eligibility.  Accordingly, his TAFSD of 17 May 1986 would yield 24 years of service for calculation of pay.

Counsel requests the Article 15s, initiated in November 2009 and October 2010 be removed.  Both alleged he misused his GTC and both were mitigated by his medical conditions and other extenuating circumstances, to include that his pay was not restarted until he had been out of confinement for three months.  Counsel also requests removal of the November 2009 LOR for failure to show up to the confinement facility in proper uniform as there was no need for this petty administrative action as it served no purpose.  These actions served only to pile on to the CM conviction and to build a paper trail for an eventual administrative discharge in light of the fact that the CM did not sentence the applicant to a dismissal.

The applicant’s CM convictions arose during, and are attributed to, a period of psychiatric distress dating from August 2006.  His medical conditions are established on record as having been present and concurrent with all 14 instances of AWOL specified at the CM.  Similarly, his repeated absences and GTC misuse were directly attributed to his effort to support his family and social isolation during what amounted to a hardship tour, including intense repeated participation in aerial combat resulting in PTSD with depressed mood, anxiety disorder, paranoid delusions and possibly a psychotic element, consistent with extreme psychiatric and emotional distress.

The applicant’s work related stress and anxiety became severe enough in August 2006 to compel him to resign from the service.  Although he tendered his resignation which was endorsed the next day by his commander, it was lost in a paper shuffle and eventually he was told to forget about it.  An unfortunate event which precipitated the decline of his mental health and ultimately resulted in the allegations that formed the basis of the CM and two Article NJPs.  The applicant should be given liberal consideration under the circumstances and the mitigating conditions in the interest of equity and propriety pursuant to the SecDef memorandum regarding the disposition of cases involving PTSD.  Counsel is confident the AFBCMR will conclude the applicant’s medical disability case was ongoing at the time of his discharge and that he is entitled to a medical retirement and disability compensation as a result of his unfitting conditions incurred in the line of duty.

Counsel’s complete submission, with attachments, is at Exhibit W.  

THE BOARD CONCLUDES THAT:

1.  The applicant has exhausted all remedies provided by existing law or regulations.

2.  The application was timely filed.

3. Pursuant to the remand order of the CoFC that the AFBCMR reconsider the applicant’s claim that he is entitled to a medical retirement with a determination of disability and to consider any other matters the applicant presents in writing, the Board reconsidered the applicant’s case to include counsel’s request the applicant be granted a medical retirement, payment of all wrongfully denied disability compensation due to him, payment of out of pocket expenses for medical care incurred since 10 December 2010, an upgrade of his UOTHC discharge to honorable or in the alternative general (under honorable conditions), award of costs and attorney’s fees and removal of the November 2009 and October 2010 NJP actions and the November 2009 LOR.   The Board also considered counsel’s rebuttal response to the Air Force evaluations which requested the Board grant the applicant a medical retirement per the 3 September 2014 SecDef memorandum directing BCMRs to give liberal consideration in petitions for changes of characterization of service in cases where PTSD or PTSD-related symptoms exist, and that the applicant’s USUHS service be credited towards his TAFMS date.  

Having carefully reviewed the complete submission, to include counsel’s rebuttal response, the totality of the evidence and the applicant’s quality of service, we do not find that it supports a determination he was denied a medical retirement and improperly discharged with a UOTHC discharge.  

In the initial case, the applicant claimed he was denied dual action processing (medical or administrative) and was erroneously discharged while pending a MEB.  We also note his contention was supported by the AFPC/DPSDD letter dated 11 January 2012 informing him he was erroneously separated as he had a pending disability case at the time of his discharge.  However, it has come to light that due to an administrative error AFPC/DPSDD was not in receipt of the 92 MDG/SGH letter dated 3 December 2010 retracting the applicant’s MEB based on the medical evaluation completed on 14 October 2010 upon his release from his eight months of confinement.  The 92 MDG/SGH letter submitted in accordance with AFI 36-3212 for recall of MEB stated that it had been 17 months since the applicant’s injury and based on a full neuropsychological test battery, he did not have an unfitting condition which warranted his processing through the Military DES, a prerequisite for a medical retirement.  The AFPC Disability Office has since acknowledged that had they been in receipt of the 3 December 2010 letter recalling the MEB, his disability case would have been closed with no further action.   Therefore, the AFPC/DPSDD letter dated 11 January 2012 informing the applicant he was erroneously separated while pending a disability case was in error.  

While counsel questions the existence of the 3 December 2010 letter which recalled the MEB, we find no reason to question the authenticity of it, which is a matter of record and contained in the applicant’s master personnel records.  Additionally, the psychiatric evaluation which led to the recall of the MEB is also contained in the applicant’s records.   Moreover, the applicant acknowledged in a letter dated 2 February 2013 in his initial AFBCMR application that he had been medically evaluated upon his release from confinement, although in his opinion he was still suffering from the effects of his TBI.  Counsel also acknowledges the applicant was medically evaluated prior to discharge but disputes the findings.  While it is unfortunate the applicant was incorrectly informed he was discharged erroneously while pending a disability case, the evidence clearly substantiates the MEB had been properly recalled in accordance with AFI 36-3212, Physical Evaluation for Retention, Retirement and Separation, paragraph 2.6., based on a full neuropsychological test battery and medical evaluation.  In view of this, it is our summation that the applicant was pending PEB action in October 2009 as a result of his bicycle accident in May 2009, his disability case was then held in abeyance pending CM action and confinement from 18 November 2009 to 7 August 2010 as required and recalled on 3 December 2010 in accordance with AFI 36-3212 based on a complete medical evaluation performed at Madigan Army Hospital which determined he did not have an unfitting condition warranting processing through the Military DES, a prerequisite to a medical retirement.   Therefore, it is our conclusion the applicant was not entitled to dual action consideration at the time of his discharge. We further find no error or injustice in his UOTHC discharge which was approved by the Secretary of the Air Force and was the result of his own misconduct over a six year period.  The occurrence of the administrative error, while unfortunate, does not rise to a level of an injustice to warrant granting the applicant a medical retirement on this basis.  

With respect to counsel’s assertion that the BOI denied the applicant his full due process rights; we find no evidence of this to be the case.  In this respect, we are persuaded that on 23 November 2010, AF/JAA reviewed the entirety of the BOI proceedings and found the recommendation of the BOI that the applicant be discharged with a UOTHC discharge legally sufficient.  

Counsel asserts the applicant was suffering the effects of his TBI/PTSD at the time of his discharge and still suffers today.  However, the Psychiatric Consultant reviewed the October 2010 evaluation and although she noted shortcomings in the evaluation, the overall findings indicated a normal range with minimal cognitive impairments.  The Psychiatric Consultant also concluded that the medical evaluation indicates the applicant had recovered from his mild TBI and there was no evidence of PTSD at the time of his discharge.  We note counsel disputes the Psychiatric Consultant’s advisory and states that the errors in the evaluations confirm he was entitled to a MEB/dual action consideration and that the applicant was diagnosed with PTSD on 19 November 2010 (three weeks prior to his discharge) by the St Luke’s Rehabilitation Institute.  In this respect, counsel should be advised a diagnosis of any medical condition in itself is not sufficient to determine a service member is unfit to perform their duties and entitled to a MEB.  As stated, we do not dispute the applicant was pending a PEB prior to his confinement as a result of hitting his head while wearing a helmet in a bicycle accident in May 2009; however, the medical evidence substantiates he had fully recovered from his TBI upon his release from confinement per the October 2010 psychiatric evaluation which was completed 17 months after his bicycle accident.  

Counsel also asserts the applicant should be medically retired based on the DVA rating decisions dated 5 June 2015 and 14 April 2016 which assigned him a compensable rating of 100 percent for his PTSD and other medical conditions.  However, we find no basis to warrant granting the requested relief on this basis.  As pointed out by the BCMR Psychiatric Consultant, the DVA under 38 U.S.C., is empowered to offer compensation for any medical condition without regard to its impact upon a member’s fitness to serve while the Military Department under 10 U.S.C. can only offer compensation for those service incurred diseases or injuries which specifically rendered a member unfit for continued service and were the cause for career termination.  In this case, the evidence clearly indicates the applicant’s misconduct, not his medical condition, was the cause of the termination of his career.  Nonetheless, the Board is pleased to see the applicant is receiving treatment, and compensation from the DVA.   

Counsel also requests the applicant’s UOTHC discharge be upgraded to honorable or in the alternative, general (under honorable conditions).  However, we find no evidence to indicate the applicant’s service characterization, which was the result of his misconduct over a six year period and included LORs, Article 15s, CM proceeding and show cause action was improper or unduly harsh or that the applicant was denied any rights due to him.   Based on the evidence, it appears the applicant was afforded every opportunity for rehabilitation but continued to engage in misconduct.  We further see no reason to disturb the recommendation of the officers comprising the BOI who saw and heard first-hand the presentation of the government’s evidence and the applicant’s counsel’s response thereto.  We considered upgrading the discharge based on clemency; however, we find the limited passage of time since his discharge and the available evidence insufficient to recommend relief on that basis.  

Counsel also requests the Board upgrade the applicant’s UOTHC discharge based on the 3 September 2014 guidance from the Secretary of Defense requiring Service Correction Boards to liberally consider PTSD or PTSD-like symptoms in requests for discharge upgrades.  We note this guidance requires us to first liberally consider whether or not PTSD or PTSD-related symptoms existed during service.  This guidance also requires us to liberally consider whether or not there is a causal nexus between the PTSD or PTSD-related symptoms and the misconduct that precipitated the discharge.  After a careful review of the evidence of record, we are not convinced the applicant’s discharge should be upgraded on this basis.  In this respect, while the applicant provides documentation from the Department of Veterans Affairs (DVA) indicating his service was honorable for VA purposes and he was assigned a rating of 70 percent for his condition of PTSD, we are still not convinced there could have been a causal nexus between his purported PTSD and the misconduct which formed the basis of his discharge.  In this respect, we note the majority of the misconduct which formed the basis for the applicant’s discharge was comprised of pre-meditated misconduct and occurred prior to his head injury as a result of his bicycle accident in May 2009.  Therefore, even if we concluded it was possible that symptoms of PTSD or a PTSD-related condition were present during the applicant’s service, there is no basis for us to conclude there could have been a causal nexus between such symptoms and the misconduct which formed the basis of his UOTHC discharge. 

Counsel states the applicant began experiencing undue stress when his humanitarian deferment request was denied.  However, based on the evidence, it appears the applicant’s humanitarian deferment request to remain in the National Capital Region was denied given the medical evidence which indicated his mother suffered from a long-term, chronic illness rather than a short term situation (normally less than 12 months).  Counsel provides a copy of the applicant’s mother’s death certificate which indicates her date of death as 21 July 2016, over 10 years after the denial of his humanitarian deferment request.  Therefore, we find no error or injustice in the denial of his humanitarian deferment request.  

Counsel also contends the applicant submitted an AF Form 780, Officer Separation Action, on 15 August 2006 but due to an administrative error, the request was not processed.  However, we find no evidence a separation request was ever placed in official channels at this time.  Furthermore, we are persuaded a separation request from an officer with only two months’ time on station would likely not have been approved given the active duty service commitment he would have incurred for the permanent change of station (PCS).  

Counsel also argues the applicant suffered harassment and stalking by his supervisor and that he flew in combat missions while performing duties as a flight surgeon and was fired upon.  We find no evidence to substantiate the applicant was harassed or stalked by his supervisor.  While we note the Air Medal the applicant received in support of Operation Enduring Freedom (OEF) indicates a threat of enemy fire, we find no evidence in his records, nor did the applicant provide any eyewitness statements, in support of his assertion that he received enemy fire while serving as a flight surgeon on the KC-135 aircraft.  Moreover, the SecDef guidance states that PTSD is not a likely cause of premeditated misconduct.  In this case, the applicant engaged in similar misconduct both before and after his TBI and he repeatedly violated standards which in our opinion were premeditated acts of misconduct, to include improper use of GTC, failure to pay his GTC bill, absenting himself from his place of duty without authority and falsifying documents.  In view of the above, we find insufficient evidence to remove the applicant’s 10 November 2009 and 6 October 2010 Article 15, Nonjudicial Punishment (NJP) actions or the 20 November 2009 Letter of Reprimand (LOR) which were the results of his own misconduct.  

Furthermore, we disagree with counsel’s argument the LOR for reporting to confinement without the proper items was petty and intended to pile on.  He contends the items were actually not required.  Even if that was the case, a lawful (written or verbal) order to report with specific equipment, uniforms and personal items cannot be disobeyed without consequences.  The requirement to obey lawful orders is amplified in the confinement barracks and the commander must enforce all rules evenhandedly in order to maintain discipline while members are confined.  This is not petty but necessary to ensure the safety of all members. 

Counsel also requests the Board consider the applicant’s four years of USUHS training be credited towards his TAFMS; however, per 10 U.S.C. § 533, USUHS time is not creditable for length of service.  Therefore, the Board is without authority to grant the applicant active duty service for his USUHS service.  

Counsel’s contends that had the applicant undergone a MEB and dual action consideration prior to his discharge it would have protracted out to permit the applicant to reach 20 years of satisfactory service.  However, as noted above, we are not convinced the applicant was entitled to dual action processing as his MEB was properly terminated when he was released from confinement.  Even if we assume for the sake of argument that he was entitled to dual action processing, we are not persuaded the applicant could have remained on active duty long enough to attain 20 years of satisfactory service.  In this respect, we note the comments of SAF/MRBP indicating the median processing time for dual action processing during the events under review was 21.5 days.  Additionally, we note the comments of SAF/MRBP indicating their long-standing practice of expediting dual action processing cases when requested and for good cause. Furthermore, as SAF/MRBP indicated in the initial case, had the applicant been processed for dual action consideration they would not have recommended a medical retirement in lieu of the UOTHC discharge based on the seriousness and repeated misconduct which pre-dated his TBI.  While we recognize the applicant’s length of service, we are not convinced he was entitled to dual action processing, or that he could have attained 20 years of satisfactory service even if he was afforded dual action processing. 

With respect for recovery of attorney fees and costs, counsel has not directed attention to any statute or contract authorizing recovery of attorney's fees.  The law with respect to recovery of attorney’s fees is well settled and 10 U.S.C. § 1552 does not authorize the BCMR to award attorney's fees.  The applicant’s case has undergone an exhaustive review by the Air Force offices of primary responsibility (OPR) and we did not find the evidence provided, sufficient to overcome their assessment of the case.  In view of the above, we agree with the conclusion of the Board in the applicant’s initial case and adopt the opinions and recommendations of the Air Force OPRs as the basis for our conclusion that counsel has not sustained the burden of proof that the applicant has suffered from an injustice to warrant granting any of the requested relief.   Therefore, in the absence of evidence to the contrary, we find no basis to recommend granting any of the relief sought in this application. 

4.  The applicant’s case is adequately documented and it has not been shown that a personal appearance with or without counsel will materially add to our understanding of the issues involved.  Therefore, the request for a hearing is not favorably considered.  

THE BOARD DETERMINES THAT:

The applicant be notified the evidence presented did not demonstrate the existence of material error or injustice; the application was denied without a personal appearance; and the application will only be reconsidered upon the submission of newly discovered relevant evidence not considered with this application.

The following members of the Board considered AFBCMR Docket Number BC-2012-00473 in Executive Session on 23 March and 17 April 2017 under the provisions of AFI 36-2603:

	 , Panel Chair
	 , Member
	 , Member

The following documentary evidence was considered:

	Exhibit F.  Letter, Counsel, 9 September 2016, w/atchs.
	Exhibit G.  CoFC, Remand, filed date 22 August 2016.
	Exhibit H.  CoFC, Order, filed date 23 August 2016.
	Exhibit I.  Applicant’s Master Personnel Records.
	Exhibit J.  Letter, AFBCMR, dated 25 August 2016.
	Exhibit K.  Letter, SAF/MRBC, dated 28 August 2013, 
			  w/Exhibits.	
	Exhibit L.  Memorandum, SecDef, dated 3 September 2014,
			  w/atchs.
	Exhibit M.  Memorandum, AFPC Disability, dated 18 October 
			  2016.
	Exhibit N.  Memorandum, AFPC/DP2STM-SEP, dated 29 November
       2016.  
	Exhibit O.  Memorandum, AFPC/DP2STM, dated 29 November
			  2016.
	Exhibit P.  Memorandum, AFPC Disability, dated 
			  6 December 2016.
	Exhibit Q.  Memorandum, SAF/MRBC, dated 27 December 2016.
	Exhibit R.  Memorandum, AFPC/JA, dated 4 January 2017.
	Exhibit S.  Memorandum, AFPC, Disability, dated 
  13 January 2017.
     Exhibit T.  Memorandum, AFBCMR Psychiatric Consultant, 
       dated 26 January 2017.
	Exhibit U.  Letter, AFBCMR, dated 2 February 2017.
	Exhibit V.  Letter, AFBCMR, dated 9 February 2017.  
	Exhibit W.  Letter, Counsel, dated 3 March 2017, w/atchs.

Pursuant to paragraph 1 of AFI 36-2603 (Title 32 Code of Federal Regulations, Part 865.1), it is certified that a quorum was present at the Board's review and deliberations, and that the foregoing is a true and complete record of the Board's proceedings in the above entitled matter.