RECORD OF PROCEEDINGS AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS IN THE MATTER OF: DOCKET NUMBER: BC-2013-00072 XXXXXXX COUNSEL: XXXXXXXXXX HEARING DESIRED: YES ________________________________________________________________ APPLICANT REQUESTS THAT: 1. The three year time limitation to submit a request to the Air Force Board for Correction of Military Records (AFBCMR) be waived. 2. She be given a 20 year active duty retirement with full retirement benefits. 3. She be promoted to the grade of senior master sergeant (SMSgt, E-8). 4. She be compensated for out of pocket medical expenses directly related to her Line of Duty (LOD) conditions. 5. She be given back pay and points accrual for 12 years of constructive active reserve credit at the pay grade of Master Sergeant (MSgt, E-7). 6. She receive any additional equitable relief which the AFBCMR deems appropriate. 7. This application be referred to the Administrative Law Division of the Office of the Judge Advocate General (JAG) for further advice and guidance. ________________________________________________________________ APPLICANT CONTENDS THAT: The applicant’s counsel presents the following major contentions: 1. The Air Force failed to follow the guidance provided in AFI 36-3212, Physical Evaluation for Retention, Retirement, and Separation, by failing to transfer her to another unit as she had proven that she could perform her duties. 2. The Air Force failed to remove her from a hostile work environment. Had the Air Force done so, she would have successfully completed her Air Force Career and retired at the 20 year point. 3. She was prevented from promotion to the grade of SMSgt in an unjust and arbitrary manner. 4. While she acknowledges that 10 USC § 1552, Correction of Military Records: Claims Incident Thereto and AFI 36-2603, Air Force Board for Correction of Military Records (AFBCMR), state that corrections shall be applied for within three years of discovery. Her mental condition, her failure to be counseled as required by AFI 36-2131, Administration of Sanctuary in the Air Reserve Components and her quality service are reasons waiving the three year requirement would be in the best interests of justice. In support of her request, the applicant provides copies of her counsel’s 15-page statement with 21 exhibits, which include AF Form 356, Findings and Recommended Disposition of USAF Physical Evaluation Board; Department of Veterans Affairs (DVA) Rating Decision, LOD Report, medical documentation, medical expenses and various other documents associated with her requests. Her complete submission, with attachments, is at Exhibit A. ________________________________________________________________ STATEMENT OF FACTS: On 16 Feb 1982, the applicant enlisted in the Air Force Reserve. The applicant developed severe mental health issues that were deemed In the Line of Duty (ILOD) on 31 Jan 2001. On 6 Aug 2001, the Informal Physical Evaluation Board (IPEB) rated the applicant’s Major Depressive Disorder and recommended discharge with severance pay with a disability rating of 10 percent. On 2 Oct 2001, the applicant was assigned to the Retired Reserve Section effective 26 Sep 2001, eligible for retired pay under 10 USC § 12731. She had 19 years, 1 month and 8 days satisfactory federal service. According to the 23 Apr 2008, DVA Rating decision provided by the applicant, on 6 Nov 2001, her medical condition of major depressive disorder with panic disorder, was increased from 50 percent to 100 percent. The remaining relevant facts pertaining to this application are contained in the letters prepared by the appropriate offices of the Air Force at Exhibits C, D and F. ________________________________________________________________ AIR FORCE EVALUATION: AFPC/DPFD recommends denial. DPFD states that the preponderance of evidence reflects that no error or injustice occurred during the disability process or at the time of separation. Because the applicant was a member of the Air Force Reserve when discharged in 2001, the record of her evaluation by the Physical Evaluation Board (PEB) are not contained in the Automated Records Management System. As such, some information available in conducting this review is reflected in the Military Personnel Data System (MilPDS) and the documents provided by the applicant. On 6 Aug 2001, the IPEB reviewed the applicant's medical board case for major depressive disorder and recommended she be discharged with severance pay with a disability rating of 10 percent. This recommendation was sent to the applicant on 14 Aug 2001 and on 28 Aug 2001, she concurred with the findings. She had over eighteen years of satisfactory service and had the option to elect transfer to the Inactive Status List Reserve Section (ISLRS) for the purpose of applying for a Reserve retirement at age 60 under Title 10, U.S.C., § 12731, in lieu of being discharged with severance pay. Per the screen shot in the Military Personnel Data System, on 31 Aug 2001, the applicant elected transfer to ISLRS for the purpose of applying for a Reserve Retirement at age 60. A discharge message was sent to her unit indicating she had exercised this option. Reserve Order EK-0006 issued on 2 Oct 2001, assigned the applicant to the Retired Reserve Section effective 26 Sep 2001. The complete DPFD evaluation, with attachments, is at Exhibit C. AFRC/A1K recommends denial. A1K states that the applicant acknowledged and accepted the findings of the PEB. As such, absent an Air Force level military medical authoritative source advising that the applicant's medical conditions did not warrant the decision made by the PEB; there is no basis for lending support to the applicant’s claims. 1. The applicant requests a waiver of the customary three year statute of limitations. However, this request would be more appropriately addressed by the AFBCMR; therefore, A1K does not make a recommendation. 2. Regarding the applicant’s request that she be given a 20 year active duty retirement with full retirement benefits, A1K states that her medical case which included the applicable documentation that ultimately led to a finding of ILOD was appropriately reviewed and a determination was made on that case by the PEB. The findings and recommended disposition of the PEB was that the applicant was entitled to be discharged with severance pay. Based on her Time in Service (TIS) and grade, she was awarded approximately $43,000, subsequently transferred to the Retired Reserve with the opportunity to receive retired pay at age 60 (Reference: Reserve Order EK-0006, 2 Oct 2001, published by HQ ARPC). The applicant acknowledged and accepted those findings. 3. In order to be promoted to the grade of SMSgt, she must have been recommended by the assigned supervisor and approved by the promotion authority in order to be considered and promoted to the next higher enlisted grade. It is solely at the discretion of the assigned supervisor to recommend promotion to the promotion authority when an individual has met the promotion eligibility requirements for promotion to the next higher grade. There is no supporting documentary evidence provided by the applicant from the required sources mentioned that validates her claim that there was intent to promote her to the next higher enlisted grade which was not properly enacted upon. 4. With regard to her request for out of pocket medical expenses that were directly related to her LOD conditions, A1K states that based on the PEB findings and recommendations and ultimate delivery of severance pay based on those findings, there is no viable basis for this request. She acknowledged and accepted the findings of the PEB. Regarding her request for back pay and points accrual for 12 years of constructive active reserve credit at the pay grade of MSgt, A1K states that per the PEB findings and recommendations and ultimate delivery of severance pay based on those findings, there is no viable basis for this request. The complete A1K evaluation is at Exhibit D. ________________________________________________________________ APPLICANT'S REVIEW OF AIR FORCE EVALUATION: The applicant certainly agrees that in 2001 a PEB recommended that she be discharged with severance pay with a disability rating of 10 percent. However, this recommendation occurred after she was within the "Sanctuary Zone" contemplated in AFI 36-2131. For that reason, any alleged consent on the part of her being separated or discharged was wholly ineffective because she did not receive the mandatory counseling also contemplated and ordered by AFI 36-2131. There was certainly nothing disqualifying in and of itself as to the 10 percent disability rating that would have prevented the Air Force from retaining her on active duty and thereby allowing her to reach retirement eligibility. Even more troubling is the continued reluctance on the part of the Air Force to acknowledge why she suffered from the major depressive disorder which was the basis of her discharge. Not only was she a deeply troubled woman at the time of the PEB but her emotional and psychological troubles were entirely and solely due to the work environment in which the Air Force placed her and from which she was granted no relief for over five years. In further support of the applicant’s request, counsel includes a chart which outlines the efforts undertaken by the applicant to obtain relief from the unremitting harassment by her supervisor which started in 1997. This chart depicts the good faith and ultimately desperate attempts by her to gain respite from the brutal harassment in her work place. It ends with an entry on 25 Apr 2001. For almost five years she was granted no relief whatsoever, not even a lateral transfer to another duty assignment. A Jun 2000 LOD investigation assessed all of her medical conditions as duty related, stating that her Adjustment Disorder with Mixed Anxiety and Depression was a direct result of "stressors in the duty environment." The 10 percent military disability rating which was assessed at the time of her discharge was ultimately amended on 28 Apr 2003, to a 100 percent disability rating by the DVA. Finally, the advisory opinion implies that the Air Force complied with its side of the bargain in granting the applicant severance pay. It did not. She was never paid the severance package which was intended to compensate her for electing not to apply for retirement at age 60. This is why she is now requesting not only full retirement benefits commensurate with 20 years of Active Service but also retroactive promotion to the grade of SMSgt. She is also requesting compensation for out of pocket medical bills directly related to her LOD conditions. Counsel once again asks the Board to correct this injustice and grant her the relief requested in her original Petition. Counsel’s complete response, with attachment, is at Exhibit E. ________________________________________________________________ ADDITIONAL AIR FORCE EVALUATION: AFRC/JA recommends denial. JA states that over 12 years ago, the applicant developed mental and physical problems due to her work environment. Her condition warranting medical care was found to be ILOD. A PEB determined that her mental and physical condition made her unfit for duty and recommended she be discharged with severance pay. At that time, she made it clear that she understood what was going on and that she wanted to be medically retired from the Air Force Reserve. Prior to her assignment to the 302nd Air Wing (302 AW) the applicant had an exemplary military record. She provided examples of her outstanding performance reports, medals, and awards. However, this situation changed upon her assignment to the 302 AW. She alleges that she began having physical and mental health issues based on sexual harassment and other retaliatory issues within the unit. She provided medical evidence supporting the mental and physical issues from which she suffered. A LOD investigation was conducted to determine if the mental and physical conditions were based on her military service. The LOD found that her medical condition was based on her workplace issues. Specifically, the LOD stated "the mental illness in this case would not have occurred but for the fact the member was present for duty. "The illness was aggravated by unusual stressors in her reserve duty environment while on active duty and inactive duty training." The PEB determined that she was unfit for duty because of a physical disability but stated N/A to whether the disability was incurred ILOD after 14 Sept 1978. The board recommended a 10 percent disability and discharge with severance pay. She had over eighteen years of satisfactory service and had the option to elect transfer to the ISLRS for the purpose of applying for a Reserve retirement at age 60 under 10 USC § 12731, Age and Service Requirements, in lieu of being discharged with severance pay. She elected to transfer to the ISLRS on 31 Aug 2001. Reserve Order EK-0006 issued on 2 Oct 2001, assigned her to the Retired Reserve Section effective 26 Sep 2001. The evidence submitted by the applicant shows that at the time she decided to transfer to the Retired Reserve, she had the mental capacity to make that election and it was her desire to do so. With regard to her contention that the Air Force failed to follow the guidance provided in AFI 36-3212, Physical Evaluation for Retention, Retirement, and Separation, by failing to transfer her to another unit as she had proven that she could perform her duties. In actuality, the PEB found her to be unfit for duty because of a physical disability. During the PEB, she stated that she desired to be medically retired from the Air Force Reserve. The applicant also contends she would have successfully completed her Air Force career and retired at 20 years had the Air Force removed her from a hostile work environment. However, she referred her issues to her member of Congress, local EEO, AFRC/IG, and SAF/IG. All appropriately investigated her complaints and all determined that the unit did not fail to follow any applicable Air Force rules, policies, or regulations. Although the stress of her work situation may have caused her mental and physical problems, the various investigations determined that the actions of the Air Force and her chain of command did not violate Air Force requirements. The applicant further claims her mental condition, her failure to be counseled as required by AFI 36-2131 and her quality service are examples of how waiving the three year requirement would be in the best interests of justice. She filed an appeal more than 11 years after she retired from the Air Force Reserve and the evidence she provided does not show that waiving the three year requirement would be in the best interests of justice. She was not unjustly discharged from the Air Force. A PEB found that she had a physical/mental problem that made her unfit for duty. During this process, she made it clear that she wanted to be medically retired from the Air Force Reserve and when given the opportunity, she elected to do just that. The EEO, AFRC/IG, and SAF/IG all determined that there were no actions on behalf of the unit that violated any Air Force policies or regulations. The complete JA evaluation is at Exhibit F. ________________________________________________________________ APPLICANT'S REVIEW OF ADDITIONAL AIR FORCE EVALUATION: She disputes the AFRC/JA advisory opinion, dated 13 Jun 2013. She has provided a tremendous amount of evidence that she needed help from leadership so that she could perform the job that she was being paid to perform. The LOD clearly shows evidence of harassment and inquiries support proof of retaliation, yet the actions taken by management seem to only minimize the hostility and mental degradation she incurred. The PEB provided only a 10 percent disability rating, yet the DVA rated her disabilities at 100 percent. It appears that not all medical information was forwarded from her unit to the PEB to make an accurate disability determination. Additionally she was never afforded the opportunity to meet with the PEB in person, possibly another oversight by her organization. Had the Air Force followed the guidelines in DoDD 1332.18, Separation or Retirement Disability, for assignment of disability ratings, a rating of 10 percent would not have been justified for “Major Depressive Disorder - Severe.” Had this occurred the military would have had to provide her a disability retirement. Moreover, no action was taken against the two men who harassed her. In further support of her request, the applicant provides recent witness statements and various other documents associated with her appeal. Her complete response, with attachments, is at Exhibit I. ________________________________________________________________ FINDINGS AND CONCLUSIONS OF THE BOARD: 1. After careful consideration of the evidence of record, we find the application untimely. The applicant did not file within three years after the alleged error or injustice was discovered as required by Title 10, United States Code, Section 1552 and Air Force Instruction 36-2603. The applicant has not shown a sufficient reason for the delay in filing on a matter now dating back over 12 years, which has greatly complicated the ability to determine the merits of her position. We are also not persuaded the record raises issues of error or injustice which require resolution on the merits. We note the numerous requests by the applicant, however, we believe these issues were appropriately addressed by HQ AFRC/JA and we agree with their rationale and recommendation. Therefore, it is our opinion that she has not provided substantial evidence that supports she is the victim of error or injustice. Thus, we cannot conclude it would be in the interest of justice to excuse the applicant’s failure to file in a timely manner. 2. 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 issue(s) involved. Therefore, the request for a hearing is not favorably considered. ________________________________________________________________ DECISION OF THE BOARD: The application was not timely filed and it would not be in the interest of justice to waive the untimeliness. It is the decision of the Board, therefore, to reject the application as untimely. ________________________________________________________________ The following members of the Board considered this application in Executive Session on 29 Oct 2013, under the provisions of AFI 36-2603: , Panel Chair , Member , Member The following documentary evidence was considered in AFBCMR BC- 2013-00072: Exhibit A. DD Form 149, dated 31 Dec 2012, w/atchs. Exhibit B. Applicant's Master Personnel Records. Exhibit C. Letter, HQ AFPC/DPFD, dated 7 Feb 2013, w/atchs. Exhibit D. Letter, AFRC/A1K, dated 1 May 2013, w/atchs. Exhibit E. Letter, SAF/MRBR, dated 3 May 2013. Exhibit F. Letter, Counsel, 28 May 2013, w/atchs. Exhibit G. Letter, AFRC/JA, dated 13 Jun 2013, w/atchs Exhibit H. Letter, SAF/MRBR, dated 13 Jun 2013. Exhibit I. Letter, Applicant, 1 Jul 2013, w/atchs. 1 2