RECORD OF PROCEEDINGS AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS IN THE MATTER OF: DOCKET NUMBER: BC-2013-01766 COUNSEL: HEARING DESIRED: YES ________________________________________________________________ APPLICANT REQUESTS THAT: She be medically retired due to severely exacerbated Traumatic Brain Injury (TBI). ________________________________________________________________ APPLICANT CONTENDS THAT: She did not have a mental disorder, but rather Frontal Brain Damage that was “exacerbated” by her time at Malmstrom Air Force Base (AFB), Montana. Her Line of Duty (LOD) determination was improper because her commander signed off on her discharge before the LOD investigation was complete. She continued to have physical trauma to her brain by her continuation of skydiving, which was approved by her health care providers and later revoked due to patient safety/re-injury concerns. In support of her appeal, the applicant provides personal statements from her and her husband; and, a plethora of military records, medical documentation, and communications. The applicant’s complete submission, with attachments, is at Exhibit A. ________________________________________________________________ STATEMENT OF FACTS: The applicant entered active service on 9 February 2009 and was involuntarily discharged on 5 June 2011 with a general (under honorable conditions) service characterization, under the provisions of Air Force Instruction 36-3208, by reason of Fraudulent Entry. She had previous service in the Air Force and Army National Guard and Air Force Reserve. On 30 December 2006, the applicant suffered a severe head injury while skydiving. At the time of the injury, she was serving in the Air Force Reserve, but was not on orders or travel status. An LOD determination for her TBI was initiated on 10 September 2010. Her condition was found to be “Existed Prior to Service (EPTS) – LOD Not Applicable.” On 13 April 2011, the applicant submitted evidence to support service aggravation of her condition; caused by stress and frustration that she suffered due to a hostile work environment and mistreatment by her supervisors, which aggravated her injury. As a result, her commander initiated an investigation by appointing an Investigating Officer (IO). The IO concluded his investigation on 19 May 2011, finding the applicant’s condition as “Not in the Line of Duty (NILOD) – Not Due to Own Misconduct.” The Appointing Authority and Reviewing/Approving Authority agreed with the IO’s findings and the LOD was finalized. On 15 October 2012, a majority of the Air Force Discharge Review Board (AFDRB) found the applicant’s discharge was inconsistent with the procedural and substantive requirements of the discharge regulation and found the applicant was not provided full administrative due process. As a result, the AFDRB directed the applicant’s discharge characterization be upgraded to honorable, and her reason for discharge be reflected as “Secretarial Authority,” and her reentry code as “3K.” The remaining relevant facts pertaining to this application are contained in the letters prepared by the Air Force office of primary responsibility and the BCMR Medical Consultant at Exhibits C and D. ________________________________________________________________ _ BCMR MEDICAL CONSULTANT EVALUATION: The BCMR Medical Consultant recommends denial. The BCMR Medical Consultant states the applicant suffered a hard landing while participating in skydiving in December 2006 affecting her level of consciousness and which required emergency treatment due to an altered mental state (characterized as “coma” in the record). She did demonstrate some mental health related problems prior to her December 2006 skydiving accident, to include feelings of hurting people, resulting in a diagnosis of “Adjustment Disorder.” She was promised a referral to a TBI program, but became distraught after learning the promise was suddenly revoked, resulting in an urgent referral for a mental health evaluation. As a result she was diagnosed with “Adjustment Disorder and Personality Disorder,” the latter which was considered to be the “Primary Diagnosis.” These types of conditions, except if chronic in the case of the Adjustment Disorder, are otherwise not eligible for Medical Evaluation Board (MEB) processing and could result in discharge under Air Force Instruction 36-3208 for “Unsuitability.” The initial proposed reason for discharge of “Unsuitability” was rescinded and replaced with “Fraudulent Entry” discharge for reasons of failure to make certain truthful entries on her Military Entrance Processing Station (MEPS) documents. Dueling medical opinions attribute the applicant’s pattern of behavior to her TBI, which, in some opinions was worsened by the occupational stressors experienced by her at Malmstrom AFB; while others assert that TBI could not be worsened by stressful interactions, but could be a manifestation of the TBI when under stressful situations, which then resolves when the stressor is removed. Nevertheless, all would agree that the applicant’s TBI and underlying personality structure existed prior to entry to active military service in 2009 and, for whatever reason, was not disclosed on her MEPS documents. The BCMR Medical Consultant indicates there must be a distinction made between the term “exacerbation,” utilized by some of her practitioners, and “permanent service aggravation,” which is required to render an individual eligible for disability processing for an EPTS condition; except if the individual has achieved at least eight years of active military service. An exacerbation, or acute behavioral flare-up of a mental condition, when under a given stressor, does not automatically incur or represent a permanent worsening of the existing medical condition, such as chronic recurrent “Adjustment Disorder;” particularly where there is a significant evidence of this pattern of behavior demonstrated prior to entering active military service. In the absence of pre-service neuropsychological testing and psychiatric testing, there is no way to objectively determine if there has been a comparative permanent worsening of the applicant’s (pre-active duty) cognitive and behavioral functioning above and beyond the expected natural progression or clinical expression of her baseline level of functioning; or the predisposition for acute exacerbation under certain stressors. Nevertheless, her “Adjustment Disorder” has been characterized as “greater than six months” duration [thus chronic]; and that in one instance it was reported as “chronic recurring.” Military medical official have been recently reminded by Department of Defense policy effective 10 April 2013, that a “Chronic Adjustment Disorder” is a compensable medical condition under the Veterans Affairs Schedule for Rating Disabilities and that it may warrant MEB processing, if found to be the cause for career termination. However, the policy implementation date is not retroactive. In order to rule in favor of the applicant, the Board would need to conclude that her TBI was in the line of duty (ILOD) or that her TBI was permanently aggravated through military service, that her “Chronic Adjustment Disorder” was either a de novo illness which first occurred during her period of active military service [even if organic-induced by head trauma], or represented permanent worsening of a pre-existing mental or functional impairment through military service. The BCMR Medical Consultant opines the evidence is insufficient to prove that an error or injustice has occurred to warrant the desired change of the record. The complete BCMR Medical Consultant’s evaluation is at Exhibit C. AIR FORCE EVALUATION: AFPC/JA recommends denial. JA states that despite the applicant’s contentions, there is no evidence that the IO, legal advisor, Appointing or Approving Authority were biased in any way towards her. On the contrary, the IO conducted an extremely thorough investigation which lasted four weeks and then provided an eleven-page report detailing his findings. The legal advisor reviewed the entire report and provided a five-page review concluding the investigation was conducted properly and the investigation was rooted in a reasonable application of the law to the facts. The Appointing and Approving Authorities reviewed the report and legal review and agreed with the IO’s recommended finding of NILOD – Not Due to Own Misconduct. JA indicates that although the applicant claims she was denied the due process of appealing the LOD determination, the evidence supports the opposite conclusion. On 1 June 2011, the applicant was given an Official Memorandum from her commander which served to notify her of the NIOLD finding. Contained therein, were the instructions that the determination could be reconsidered if she notified the Approving Authority within 45 day of receipt of the Memorandum, of new and relevant evidence. There is no requirement that an individual be on active duty to request reconsideration of an LOD determination. In fact, in those situations where the individual has died, his/her next of kin are notified of the LOD determination and the right to request reconsideration. The applicant did not exercise her right to request reconsideration. To obtain relief, the applicant must show by a preponderance of evidence some error or injustice warranting corrective action by the Board. Considering all the circumstances in this case, the applicant’s record should not now be altered, as she has failed to establish an error warranting the requested relief. The complete JA evaluation is at Exhibit D. ________________________________________________________________ _ APPLICANT'S REVIEW OF THE AIR FORCE EVALUATION: She would like to point-out to the Board some of the laws that apply to her situation. She has Post Traumatic Stress Disorder (PTSD) for her Military Sexual Trauma in which the Department of Veteran Affairs (DVA) has already given her service connection. DoD has revised its guidance to the services on rating PTSD to adhere to the DVA rating schedule. Service members being medically retired for PTSD be rated at least 50 percent disabled, a provision of the 2008 Defense Authorization Act. Guidance establishes that when a mental disorder develops on active duty as a result of a highly stressful event, which is severe enough to bring about release from active military service, the rating agency shall assign an evaluation of not less than 50 percent and schedule an examination within the six- month period following discharge to determine whether a change in rating and disposition is warranted. The applicant’s complete rebuttal is at Exhibit H. ________________________________________________________________ _ THE BOARD CONCLUDES THAT: 1. The applicant has exhausted all remedies provided by existing law or regulations. 2. The application was timely filed. 3. Insufficient relevant evidence has been presented to demonstrate the existence of an error or an injustice. After thoroughly reviewing the evidence of record and noting the applicant’s contention, we find no basis to adjust her records to reflect a disability retirement. We note the applicant’s assertion that her condition of TBI was permanently aggravated through military service; however, she does not provide sufficient evidence to prove this contention. As indicated by the BCMR Medical Consultant, the applicant’s TBI and personality structure existed prior to entry on active duty in 2009. In the absence of a pre-service neuropsychological testing and psychiatric testing, there is no way to objectively determine if there has been a comparative permanent worsening of the applicant’s pre-active duty cognitive and behavioral functioning above and beyond the expected natural progression. Therefore, we agree with the opinion and recommendations of the Air Force office of primary responsibility and the BCMR Medical Consultant and adopt his rationale as the basis for our conclusion that the applicant has not been the victim of an error or injustice. We note the applicant’s contention, in her rebuttal to the advisory opinions, that she is entitled to a disability rating of 50 percent based on her condition of PTSD as a result of Military Sexual Trauma; however, after a thorough review of her military service records, there is no evidence found that she was diagnosed with PTSD as a result of Sexual Trauma or that she was released from active duty as a result of PTSD. Therefore, 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-2013-01766 in Executive Sessions on 28 January 2014, under the provisions of AFI 36-2603: , Panel Chair , Member , Member The following documentary evidence was considered in connection with AFBCMR Docket Number BC-2013-01766: Exhibit A. DD Form 149, dated 5 Apr 13, w/atchs. Exhibit B. Applicant's Master Personnel Records. Exhibit C. Letter, BCMR Medical Consultant, dated 7 Aug 13. Exhibit C. Letter, AFPC/JA, dated 7 Aug 13. Exhibit E. Letter, SAF/MRBC, dated 8 Aug 13. Exhibit F. Letter, SAF/MRBR, dated 19 Aug 13. Exhibit G. Letter, Applicant, dated 27 Aug 13, w/atchs. Exhibit H. Letter, Applicant, dated 10 Dec 13. 5 6 7