SECOND ADDENDUM TO RECORD OF PROCEEDINGS

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

XXXXXXXXXXXXXX	COUNSEL: XXXXXXXXX
	
	HEARING REQUESTED: YES

APPLICANT’S REQUEST

The Board reconsider his request as follows:

1. He be granted a medical retirement with a disability rating of at least 50 percent, and

2. He be granted Combat Related Special Compensation (CRSC), or

3. In the alternative, he be processed through the Integrated Disability Evaluation System (IDES).

RESUME OF THE CASE

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

On 6 Sep 12, by virtue of a DD Form 149, Application for Correction of Military Record, the applicant requested a medical retirement.  His application was returned without action because he had a present case before the Air Force Discharge Review Board (AFDRB) requesting his reenlistment code be changed/upgraded, allowing him reentry into the military.  The applicant was advised he could not have two cases being simultaneously adjudicated before different Air Force review boards.  On 13 Dec 12, the AFDRB denied his request.

On 22 Mar 13, the applicant requested his narrative reason for separation be changed to reflect he was medically retired and to credit him with active duty pay for almost 10 years of service.  The Board considered and denied the applicant’s request.  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 F.

On 13 July 2015, 11 May 2016, 13 Oct 16, 25 Oct 16 and 28 Oct 16, the applicant appealed to the Board for reconsideration without new and relevant information; therefore, the requests were filed without action.

On 13 May 21, through counsel, the applicant requested reconsideration of his request for a medical retirement with additional requests to grant CRSC, or as an alternative, process him through the IDES to determine if his condition is service-connected.  The applicant provides new evidence, specifically a Department of Veterans Affairs (DVA) rating decision, dated 4 Oct 18 and the Kurta memorandum and contends that the Air Force improperly separated him without considering whether his psychological condition was connected to his service.  He had no mental health issues prior to his enlistment into the Air Force Reserve in 2004.  The Air Force should have processed him through the IDES in 2005, instead he served four more years before being disqualified from military service as a result of a psychological disorder.  His condition is now rated at 100 percent by the DVA and he should at least receive another assessment from the Air Force to examine him for service-connection based on the current standards and knowledge.

The applicant’s complete submission is at Exhibit G.

APPLICABLE AUTHORITIES/GUIDANCE

1. 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.

2. 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.

3. On 3 Sep 14, the Secretary of Defense 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?

Copies of all liberal consideration guidance memoranda can be found at Exhibit H.

AIR FORCE EVALUATIONS

The BCMR Psychological Advisor finds insufficient evidence to support the applicant’s request for a medical retirement and recommends the Board obtain an advisory from a subject matter expert to address his request for CRSC.  The applicant received an advisory from the medical advisor, dated 10 May 13, and recommends the Board review the previous advisory again as the applicant’s mental health history was comprehensively summarized and will not be fully reiterated in this advisory.

The applicant and his legal counsel contends he first experienced “abnormal thoughts and delusions” during his active duty/training period in 2005 to demonstrate his condition was incurred In the Line of Duty (ILOD).  The psychological advisor acknowledges liberal consideration allows for personal testimony to be considered as evidence; however, simply stating a situation may have occurred during service without any corroborating evidence would not suffice.  The evidence presented by the applicant and his legal counsel still requires elements of being compelling and substantive.  There was no objective evidence in the applicant’s service treatment records reporting he had experienced any psychosis or other mental health conditions in 2005.  There was no mental health evaluation or an evaluation from his medical provider performed at the snapshot in time of service when the alleged incident/experience occurred to rule out or determine whether he was actually experiencing a bona fide mental health condition, the onset of psychosis or a psychotic disorder, a medical or physical condition, or other issues.  There was also no character witness statement submitted from the supposed drill instructor to corroborate the alleged observation and experience.

Three different duly qualified mental health professionals from different organizations at different times had consistently reported the onset, occurrence, and exacerbation of his mental health condition was not associated with his military duties.  The applicant received inpatient psychiatric hospitalization three times from 3-7 Mar 06, 15-25 Apr 06, and 09-18 Jan 07 that coincided with his time with the Air Force Reserve.  There was no evidence he was on Reserve orders or status at the time these experiences occurred that would make his experience or condition be considered ILOD.  Therefore, the psychological advisor concurs with the previous medical advisor’s opinion that there was no Line of Duty (LOD) determinations within his medical records to support anything other than a “non-duty related impairment or condition.”  There was also no error identified with his discharge processing from service.  Nevertheless, the Board may elect to apply liberal consideration to the applicant’s petition based on the contention of a mental health condition.

The complete advisory opinion is at Exhibit I.

AFPC/DPFDC recommends denying the application.  CRSC is designed to restore military retirement pay that has been offset by DVA compensation.  Since the applicant is not receiving retirement pay, he is not eligible to receive CRSC.  The applicant submitted two claims for CRSC compensation on 5 Aug 16 and 9 Mar 17.  Both claims were disapproved as insufficient service.

The complete advisory opinion is at Exhibit J.

APPLICANT’S REVIEW OF AIR FORCE EVALUATIONS

The Board sent copies of the advisory opinions to the applicant on 4 Apr 21 for comment (Exhibit K), and the applicant replied on 26 Apr 21.  In his response and through counsel, the applicant reiterates his contention that his mental health condition was incurred or aggravated by his military service and requests the Board grant a personal appearance so that he may answer any questions they may have.  Additionally, in order to answer the advisor’s concern, the applicant underwent a psychological assessment so that the Board may better understand his mental health disorder.  In the assessment, the Psychologist concluded that it is at least as likely as not that the applicant’s Schizoaffective Disorder developed during his military service.  With his response, the applicant provided a Psychological Evaluation Report, dated 20 Apr 21.  

The applicant’s complete response is at Exhibit L.

FINDINGS AND CONCLUSION

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 and recommendation of the BCMR Psychological Advisor and AFPC/DPFDC and finds a preponderance of the evidence does not substantiate the applicant’s contentions.  The Board considered liberal consideration and believes the applicant’s medical condition is 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 is 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 ILOD.  Therefore, the Board recommends against correcting the applicant’s records.

The applicant has not shown a personal appearance, with or without counsel, would materially add to the Board’s understanding of the issues involved.

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-2012-04086-4 in Executive Session on 14 Jun 21:

Panel Chair
Panel Member
Panel Member

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

Exhibit F:	Record of Proceedings, w/ Exhibits A-E, dated 5 Mar 14.
Exhibit G:	Application, DD Form 149, w/atchs, dated 13 May 20.
Exhibit H:	Notification of Clarifying Guidance, SAF/MRBC to applicant, dated 
		24 Mar 21.
Exhibit I:	Advisory opinion, BCMR Psychological Advisor, dated 25 Mar 21. 
Exhibit J:	Advisory opinion, AFPC/DPFDC, dated 1 Apr 21. 
Exhibit K:	Notification of advisories, SAF/MRBC to applicant, dated 5 Apr 21.
Exhibit L:	Applicant’s response, w/atchs, dated 26 Apr 21.

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.

							_______________________________
							Board Operations Manager, AFBCMR