RECORD OF PROCEEDINGS AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS IN THE MATTER OF: DOCKET NUMBER: BC-2013-00847 COUNSEL: NONE HEARING DESIRED: NO _________________________________________________________________ APPLICANT REQUESTS THAT: Her honorable discharge be upgraded to a medical retirement. _________________________________________________________________ APPLICANT CONTENDS THAT: She was the victim of a military sexual trauma while attending the United States Air Force Academy (USAFA). The Department of Veteran’s Affairs (DVA) granted her service-connection for Post- Traumatic Stress Disorder (PTSD) and Major Depressive Disorder with a 70 percent disability rating. The disability rating falls under the presumptive period pursuant to the provisions of 38 CFR §3.304(f)(5) and 3.307(3). In support of her request, the applicant provides copies of her DD Form 214, Certificate of Release or Discharge from Active Duty; DVA Rating Decision memorandum and various other documentation associated with her request. The applicant's complete submission, with attachments, is at Exhibit A. _________________________________________________________________ STATEMENT OF FACTS: On 24 Jun 10, the applicant entered the USAFA in a cadet status. On 24 Jun 11, the applicant was separated from cadet status due to a voluntary resignation. At the time of her resignation, she was on an Administrative Turnback and elected not to return to the USAFA. She did not incur an Active Duty Service Commitment (ADSC) and received an honorable discharge. On 8 Feb 13, the DVA granted her service-connection for PTSD and Major Depressive Disorder with a 70 percent disability rating. _________________________________________________________________ AIR FORCE EVALUATION: The BCMR Medical Advisor recommends denial. The Medical Advisor states that no AF Forms 469, Duty Limiting Condition Report or AF Forms 422, Physical Profile Serial Report were submitted by the applicant for the period of time she served on active duty. There were no personnel or service treatment records for the period of service from 24 Jun 10 through 24 Jun 11. There are no documents that would substantiate an unfitting condition. Therefore, it appears that the applicant “voluntarily resigned” from the USAFA, rather than being turned back for administrative reasons. The military Disability Evaluation System (DES), established to maintain a fit and vital fighting force, can by law, under Title 10, United States Code (USC), can 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 time of separation and not based on future occurrences. Operating under a different set of laws (Title 38, USC), with a different purpose the DVA is authorized to offer compensation for any medical condition determined service incurred, without regard to and independent of its demonstrated or proven impact upon a service member’s retainability, fitness to serve, narrative reason for separation, or the intervening or transpired period since the date of separation. With this in mind, Title 38, USC which governs the DVA compensation system, was written to allow awarding compensation ratings for conditions that were not unfitting for military service or at the time of separation. This is the reason why an individual can be found fit for release from military service and yet sometime thereafter receive a compensation rating from the DVA for service-connected, but militarily non-unfitting conditions. The applicant has not provided facts warranting the desired change of the record, nor met the burden of proof of an error or injustice. The complete BCMR Medical Advisor evaluation is at Exhibit C. USAFA/A1A recommends denial. A1A states that the applicant in- processed the USAFA with the Class of 2014 on 24 Jun 10, and was granted an Administrative Turnback for personal reasons. On 23 Aug 10, the applicant filed an unrestricted report with the USAFA Sexual Assault Response Coordinator (SARC) alleging she was raped by a fellow cadet on the evening of 21 Aug 10. Based on the responses from the USAFA support agencies that dealt with her case, they do not agree that she should be granted a full medical retirement from the Air Force. On 16 Nov 10, she physically departed the USAFA and was subsequently separated from the Air Force rolls effective 24 Jun 11. The complete A1A evaluation, with attachments, is at Exhibit D. _________________________________________________________________ APPLICANT’S REVIEW OF AIR FORCE EVALUATION: A copy of the Air Force evaluation was forwarded to the applicant on 19 Sep 13, for review and comment within 30 days (Exhibit E). As of this date, this office has not received a response. _________________________________________________________________ THE BOARD CONCLUDES THAT: 1. The applicant has exhausted all remedies provided by existing law or regulations. 2. The application was not timely filed. 3. Insufficient relevant evidence has been presented to demonstrate the existence of error or injustice. We took notice of the applicant’s complete submission in judging the merits of the case and do not find that is supports a determination that the applicant was improperly discharged. The applicant has not provided sufficient evidence which would lead us to believe that at the time of her discharge, a physical condition existed that was determined by competent medical authority to be a physical disability which specifically rendered her unfit for continued military service. Therefore, we agree with the opinion and recommendation of the BCMR Medical Advisor and adopt his opinion as our findings in this case. It appears the applicant believes the DVA’s decision to award her a disability rating, substantiates that she should have received a medical retirement. However, we note that although the Air Force is required to rate disabilities in accordance with the DVA Schedule for Rating Disabilities, the DVA operates under a totally separate system with a different statutory basis. In this respect, we note that under Title 10, United States Code, the Air Force rates a member’s disability at the time of separation and then based only on the degree of severity at that time; whereas, under Title 38, United States Code, the DVA rates for any and all service-connected conditions, to the degree they interfere with future employability, without consideration of fitness or whether the condition was the cause for the termination of the member’s career. In the applicant’s case, at the time of her discharge there was no evidence that would substantiate she had an unfitting condition. In view of the above, we conclude the applicant has not provided sufficient evidence such as personnel or medical treatment records to warrant disturbing the record. However, should she provide medical treatment records to support her request, we would be willing to reconsider her request. In view of the above and in the absence of evidence to the contrary, we find no basis to recommend granting the relief sought in this application. ________________________________________________________________ THE BOARD DETERMINES THAT: The applicant be notified that the evidence presented did not demonstrate the existence of material error or injustice; that the application was denied without a personal appearance; and that 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-2013-00847 in Executive Session on 5 Dec 2013, under the provisions of AFI 36-2603: Panel Chair Member Member The following documentary evidence was considered: Exhibit A. DD Form 149, dated 14 Feb 13, w/atchs. Exhibit B. Applicant's Available Personnel Records. Exhibit C. Letter, BCMR Medical Advisor, dated 28 May 13. Exhibit D. Letter, USAFA/A1A, dated 29 Aug 13, w/atchs. Exhibit E. Letter, SAF/MRBR, dated 19 Sep 13. 1 2