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

IN THE MATTER OF: 			DOCKET NUMBER: BC-2013-03314

 						COUNSEL:   

						HEARING DESIRED:  YES 

APPLICANT REQUESTS THAT:

His records be corrected as follows based on being the victim of a substantiated case of reprisal pursuant to DODD 7050.06, Military Whistleblower Protection, dated 23 July 2007, and 10 U.S.C. § 1034.   

	He be awarded monetary damages in the amount of $423,828.29 for back pay, cost of health benefits and attorney fees and costs to date.

	Restoration of 140 days of lost leave.  

All documentation referencing his mental health condition be removed from his records.   

APPLICANT CONTENDS THAT:

Counsel, on behalf of the applicant, in a letter to the Office of the Under Secretary of Defense for Personnel and Readiness (OUSD P&R) dated 1 March 2016, states the applicant is not satisfied with the decision of the Board on 20 November 2015 because the decision rested on the assumed accuracy of the Air Force evaluations.

The applicant sought an independent evaluation from a licensed civilian psychologist who reviewed the applicant’s medical background records and issued a new report suggesting the Air Force evaluation was made in error.  This newly discovered relevant evidence is submitted to the Board for reconsideration under 10 U.S.C. § 1552.  This evidence was not available when the applicant submitted his original application.  

Counsel requests monetary award for damages in the amount of $423,828.29, to include $397,828.29 for lost wages from February 2007 to October 2014 as a result of his discharge due to the denial of reenlistment on 17 July 2006.  The applicant would have been approved for reenlistment if not for the reprisal actions taken against him.  Counsel requests 140 days of lost leave be restored and monetary damages to include $19,000 for out-of-pocket medical expenses and costs associated with obtaining health insurance benefits that he would have otherwise maintained under his military health benefits.  Counsel also requests $7,000 for attorney fees and costs to date.  

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

RESUME OF CASE:

The applicant entered the Regular Air Force on 8 February 2001 and was honorably discharged on 7 February 2007 in the grade of Staff Sergeant (SSgt, E-5), with a narrative reason for separation of “Completion of Required Active Service” and Reentry (RE) Code “2X” which denotes “Denial of Reenlistment.”  He was credited with 6 years of active duty service.  

On 12 July 2005, the applicant filed an IG complaint regarding unsafe maintenance practices in accordance with AFI 90-301, Inspector General Complaints Resolution.  According to an undated Report of Investigation (ROI), 22 allegations of reprisal were investigated in violation of 10 U.S.C. § 1034.  The following allegations were substantiated as reprisal.  

	Allegation 7:  On or about 22 August 2005, the AMXS/CC reprised against him by serving him with consideration for nonjudicial punishment under the UCMJ.  

	Allegation 11:  On or about 21 October 2005, the Aircraft Maintenance Squadron Commander (AMXS/CC) reprised against him by signing his referral Enlisted Performance Report (EPR).  

	Allegation 13:  On or about October 2006, the Maintenance Group Commander (MXG/CC) reprised against him by denying him an upgrade of his Air Force Specialty Code (AFSC).  

	Allegation 18:  On or about 21 July 2005, the AMXS/CC reprised against him by restricting him from going outside of his chain of command.

	Allegation 20:  On or about 15 July 2005, the Medical Operations Squadron (MDOS) improperly disclosed confidential communications made by the applicant during a voluntary visit to the Life Skills Clinic in violation of AFI 44-109, Mental Health Confidentiality, and Military Law, paragraph 6 and DODD 6025.18R, Department of Defense Privacy Program.  

The following allegations were not substantiated for reprisal but were substantiated for abuse of authority:

	Allegation 8:  On or about 11 October 2005, the AMXS Superintendent reprised against him by co-authoring and suggesting further downgrades of his referral EPR.

	Allegation 9:  On or about 21 October 2005, the AMU supervisor reprised against him by endorsing his referral EPR.  

	Allegation 12:  On or about 5 May 2006, his supervisor reprised against him by recommending his nonselection for reenlistment under the Selective Reenlistment Program (SRP).

In the case closure memorandum to the Secretary of the Air Force Inspector General, Complaints Resolutions Directorate (SAF/IGQ) dated 10 June 2010, the DOD IG stated they received a letter from the applicant’s commander in which he rebutted the previously substantiated findings against him.  After reviewing the rebuttal statements, corroborating testimony and the applicant’s violation of multiple orders and his commander’s history of not following legal advice and administering strict punishment to his troops, the DOD IG determined the applicant’s commander to offer an Article 15 was consistent with his past actions and he would have offered it absent the applicant’s protected communication.  

In a subsequent case closure memorandum to SAF/IGQ dated 14 July 2010, the DOD IG concluded the applicant’s commander reprised against the applicant by providing a referral EPR and offering an Article 15 nonjudicial punishment.  The DOD IG also agreed the applicant’s commander did not follow procedural requirements in DODD 6490.1, Mental Health Evaluations of Members of the Armed Forces, and DODI 6490.4, Requirements for Mental Health Evaluations of Members of the Armed Forces, when referring the applicant for a mental health evaluation on 15 July 2005.        

According to the AF Form 418, Selective Reenlistment Program Consideration, dated 17 July 2006, the applicant was nonselected for reenlistment by 354th Fighter Wing Commander (354 FW/CC).  The AF Form 418 noted the commander directed mental health examinations and his diagnosis of Obsessive Compulsive Personality Disorder (OCPD).  All three of the mental health examinations indicated the applicant has a personality disorder which manifests as a preoccupation with details and rules, perfectionism to the point that it may interfere with task completion, excessive devotion to work, inflexibility about moral or ethical concerns, reluctance to delegate tasks and rigid or stubborn behavior.  On 2 November 2005, the evaluating physician stated the OCPD was so severe that the applicant’s ability to function in the military environment was significantly impaired.  On 8 December 2005, another evaluating physician again made the same diagnosis that the applicant’s OCPD was so severe that it interfered with his performance to perform his current duties and recommended that either the applicant be retrained into another career field or be administratively discharged.  The 354 FW/CC stated that the applicant struggled in the career field and received several Letters of Counseling (LOC) to include counseling for failure to follow “black and white” technical orders.  It was his observation that many of the applicant’s difficulties were unrelated to the career field and would interfere with his service in any area.  The applicant demonstrated difficulty accepting and executing all military duties, instructions, responsibilities and lawful orders from officers and higher ranking Noncommissioned Officers (NCOs).  The applicant had difficulty accepting his own errors and the feedback or critique from others, particularly when he perceived the feedback to be negative.  Finally, he demonstrated a preoccupation with his own personal goals of becoming an officer and a pilot to the detriment of his official duties and responsibilities, which was in direct opposition to his NCO responsibilities under AFI 36-2618, Enlisted Force Structure.  On 10 September 2006, the Pacific Air Forces, Director of Personnel (PACAF/A1) denied the applicant’s appeal of his nonselection for reenlistment.  

On 27 June 2013, the applicant appealed to the AFBCMR for the following corrections to his records based on being the victim of a substantiated case of reprisal pursuant to DODD 7050.06, Military Whistleblower Protection, and 10 U.S.C. § 1034: He be awarded monetary damages in the amount of $1,525,000 (amended to $397,828.29 on 5 September 2014) for back pay and allowances, out-of-pocket medical expenses, interest, attorney fees and other compensatory damages and his records be corrected to reflect restoration of 104 days of lost leave, promotion to the grade of Technical Sergeant (TSgt, E-6), award of his 7-skill level, change of his “2X” RE code, that he was commissioned as an officer in 2008, he was retired in the grade of captain (O-3) with 20 years of service; and removal of negative performance feedbacks, referral Enlisted Performance Report (EPR), mental health documents referencing diagnosis of OCPD, AF Form 418, Selective Reenlistment Program Consideration, dated 17 July 2016 and Article 15 and courts-martial actions.  In lieu of the aforementioned, the applicant would accept return to active duty as an officer and flight school attendance.   
   
On 17 February 2015, the Board partially granted the applicant’s requests based on the substantiated allegations of reprisal as documented in the ROI.  The Board directed the applicant’s referral EPR for the reporting period ending 8 October 2005 be removed from his records and that his DD Form 214, Certificate of Release or Discharge  from Active Duty, be amended to reflect he was awarded his 7-skill level.  The Board also noted the applicant’s records did not include any Article 15 or court-martial actions; therefore, there were no documents to remove.  Further, the Board also noted that in accordance with AFI 36-2406, Officer and Enlisted Evaluation Systems, performance feedbacks are not a part of the official record; therefore, there were no documented performance feedbacks to remove.  However, the Board concluded the applicant’s denial of reenlistment, which led to his separation, was in accordance with AFI 36-2606, Reenlistment in the USAF, which gives commanders total Selective Reenlistment Program (SRB) selection authority.   Accordingly, the Board found no basis to correct his record to make him eligible for medical benefits, restore lost leave or promote him to the grade of TSgt since there was no basis to revoke the AF Form 418.  The Board acknowledged the ROI indicated the medical and dental operations squadron improperly disclosed confidential communications and based on this the applicant believed his records included a “privacy violation notice;” however, his records did not include any such notice nor did the applicant provide it in his submission; therefore, the Board determined there was no basis to act on this portion of the request.  With respect to the applicant’s requests he be returned to active duty in the grade of captain, sent to flight school or be retired in the grade of captain, the applicant was never appointed by the Secretary of Defense as an officer as required by statute; therefore, these requests were beyond the authority of the Board.  

In a memorandum dated 29 September 2016, OUSD P&R directed the AFBCMR reconsider the applicant’s case in light of the new psychological evaluation and the revised calculation of monetary damages.  The letter states it is unclear how important or unimportant the diagnoses were to the AFBCMR’s decision and the AFBCMR is in the best position to determine, what impact, if any, the psychological evaluation has on the applicant’s Military Whistleblower Protection claim.  

According to the psychological evaluation provided by counsel, on 11 February 2016, the applicant was evaluated by a licensed clinical psychologist.  The reason for the referral was the applicant’s request for an additional, independent opinion regarding a past diagnosis of OCPD in 2005 while in the Air Force, secondary to his reporting unsafe maintenance practices.  The evaluation states the applicant’s mental status examination was unremarkable for problems with motor aspects of behavior, language and sensorium.  His thought processes and thought content were intact and appropriate as well.  The applicant denied psychiatric disturbances, substance abuse and he had not seen a mental health professional since his misdiagnosis in 2005 while in service.   The applicant’s profile suggests he may be seen as very outgoing with a strong need to be around others socially despite a preference for working alone.  He is gregarious and enjoys attention with an additional strong need to be seen by others as composed, virtuous and conventional in his behavior.  He will down play distressing emotions and avoid troublesome relationships.  The applicant has not only acquired skill in sensing what will please others but has also learned to be alert to signs of potential rejection and hostility.  This hypervigilance enables him to adapt his behavior and minimize indifference and disapproval.  His interpersonal striving extends not only to evoking praise but to avoiding rejection.  The applicant is inclined to transform failures into successes supporting his strong sense of self-satisfaction and self-worth.  Under pressure he may act in a rather grandiose and self-assured manner, possibly without commensurate achievements and commensurate with feelings of suspicion of the motives of others.  These aforementioned personality characteristics may become more salient over the years and actually serve to be adaptive with his entrepreneurial endeavors over the last several years.  Furthermore, such guarded and suspicious qualities may have helped him to cope with the stress and trauma of his experiences in the Air Force.  There was no evidence from the evaluation of an OCPD.  In fact, the results from the evaluation do not warrant a diagnosis of personality disorder based upon the diagnostic and Statistical Manual Fifth Edition (DSM-V).  His repeated ability to adapt to the demands and stress, without the concurrent development of dysfunctional emotion and behavior, inherent in a variety of environmental situations required of his work over the years tends to refute the existence of a personality disorder.  The evaluation suggests that the applicant does not exhibit evidence of pathological symptoms to include no evidence of clinical syndromes seen in diagnosed psychiatric disorders that are indicative of affective, thought or behavioral psychopathology.  Personality patterns evident from this evaluation are indicative of a narcissistic personality pattern with histrionic features.  There is no evidence to support a diagnosis of OCPD from this evaluation.  These results are very similar to those obtained in an independent evaluation completed by a psychiatrist in 2005.  

The results of the evaluation do not warrant a diagnosis of personality disorder based on DSM-V requirements of repeated and behavioral and emotional dysfunction across multiple environments.  His repeated ability to adapt to the demands and stress, without the concurrent development of dysfunctional emotions and behaviors inherent in a variety of environmental situations required of his work over the years tends to refute the existence of a personality disorder.  

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.

AIR FORCE EVALUATION:

BCMR Psychiatric Consultant finds insufficient evidence to warrant the desired change of the record.  The Consultant finds evidence presented casts doubt on the Air Force diagnoses but in the absence of the pertinent underlying documentation, such as military mental health records, a conclusive determination is not possible.  Despite the fact the applicant was evaluated by credible mental health providers, the Psychiatric Consultant questions the diagnosis of OCPD and is not able to explain what really happened in 2005 although there are many plausible explanations to include interpersonal conflict with the commander; some Axis I mental health disorder that was missed; or personality traits that are unnoticeable but became exacerbated at the time of the stress.

The applicant explicitly argues the diagnosis of OCPD diagnosed during his military service is erroneous.  He presents evaluations performed by civilian psychologists supporting his assertion.  The Board is advised that diagnostic nomenclature assigned to a given set of psychiatric symptoms and stressors, as reported by a patient at a given point in time (during a military evaluation), not uncommonly may change over time; or may be reported differently at subsequent points in time.  With disclosure of a different clinical history or set of symptoms, a new mental health provider is more inclined to reach a different diagnostic conclusion.  Professional diagnostic opinions may even vary between two different providers when given the same set of clinical symptoms from the same patient; and during the approximate same period of time.  Furthermore, a change in diagnosis may legitimately occur following a greater period of observation and treatment; notwithstanding the fact that individuals may also experience symptoms that are shared (overlapped_ by one or more other clinical diagnoses) or may even co-exist concurrently.  This is commonly observed with the Axis I psychiatric diagnosis such as depression, anxiety, or Post-traumatic Stress Disorder (PTSD).  The disorders are not static in nature and can exacerbate, remit or transform over time.  However, the situation is significantly different with Axis II conditions, also known as personality disorders.  

The applicant was diagnosed by credible military psychologists with Personality Disorder, which reportedly was so severe that it interfered with his duty performance.  In other words, after being a good airmen for three years, his personality became incompatible with military service.  Per DSM IV that was in effect in 2005, personality disorders are characterized by “an enduring pattern of inner experience and behavior that deviates markedly from the expectations of the individual’s culture.  By and large, these are life-long patterns/characteristics, often recognizable by the time of adolescence or early adulthood.  The most important criteria for diagnosis is the course of the disturbance, it has to be “pervasive” and “inflexible.”  In fact, an essential change in the personality would be highly unlikely.  Therefore, the applicant’s characteristics of preoccupation with rules, detail, order, perfectionism, exceptional devotion to work, inflexibility about matters of morality and ethics and reluctance to delegate tasks noted by the mental health providers and his command are expected to present at the contemporary time.  However, the two psychological evaluations completed in 2005 and 2016 fail to identify any traits of OCPD.  Furthermore, both reports agree on the existence of the personality traits consistent with Histrionic and Narcissistic Personality Disorders.  The Psychiatric Consultant has been deprived of the mental health records from 2005, and unfortunately they may have been destroyed, and therefore has no knowledge of how two psychologists involved in the applicant’s evaluation arrived to the diagnosis of OCPD.  However, given the applicant’s history, the Psychiatric Consultant opines the applicant’s presentation is more consistent with histrionic and narcissistic tendencies, which is likely to cause interpersonal conflicts and interference with duty performance.  

A complete copy of the BCMR Psychiatric Consultant’s evaluation is at Exhibit AA.

APPLICANT'S REVIEW OF AIR FORCE EVALUATION:

A copy of the Air Force evaluation was forwarded to the applicant on 19 December 2016 for review and comment within 30 days (Exhibit BB).  As of this date, no response has been received by this office.

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 injustice to warrant granting the requested relief.  We acknowledge the applicant was a victim of reprisal pursuant to DODD 7050.06, Military Whistleblower Protection, dated 23 July 2007, and 10 U.S.C. § 1034; however, having carefully reviewed the complete case, to include the additional submission and the new mental health evaluations, we are persuaded counsel has not sustained the burden of proof required to grant the requested relief.  Counsel contends the applicant would not have been denied reenlistment had it not been for the substantiated allegations of reprisal and that he was incorrectly diagnosed with OCPD; however, there is no evidence to indicate this to be the case.   Based on the available evidence of record, it appears the applicant’s nonselection for reenlistment was consistent with the governing regulation and within the commander’s discretionary authority.  In this respect, we note AFI 36-2606, Reenlistment in the USAF, states the objective of the Selective Reenlistment Program (SRP) is to ensure the Air Force retains only airmen who consistently demonstrate capability and willingness to maintain high professional standards and that commanders have sole SRP selection authority.  Having carefully reviewed the AF Form 418, Selective Reenlistment Program Consideration, dated 17 July 2006, it appears the 354 FW/CC had sufficient reason to deny the applicant reenlistment.  The AF Form 418 indicates the applicant was counseled for failure to follow technical orders, he demonstrated difficultly accepting and executing military duties, instructions, responsibilities and lawful orders and had difficulty accepting his own errors or feedback.  The 354 FW/CC also noted the applicant’s preoccupation with his own personal goals of becoming an officer and pilot were to the detriment of his duties and responsibilities and was in direct opposition to the standards and expectations of Air Force NCOs as outlined in AFI 36-2618, Enlisted Force Structure.   We recognize the AF Form 418 also includes reference to the applicant’s mental health evaluations and diagnosis of OCPD, which both the applicant’s psychologist and the BCMR Clinical Psychiatrist question as the correct diagnosis while indicating the applicant may have narcissistic and histrionic personality traits rather than OCPD.   However, as pointed out by the BCMR Psychiatric Consultant, diagnostic nomenclature assigned to a given set of psychiatric symptoms and stressors, as reported by a patient at a given point in time (during a military evaluation), not uncommonly may change over time; or may be reported differently at subsequent points in time.  Professional diagnostic opinions may even vary between two different providers when given the same set of clinical symptoms from the same patient; and during the approximate same period of time.   It has been more than 10 years since the applicant’s military mental health evaluations and without any mental health records on file it is difficult to ascertain how the credentialed mental health providers came to their conclusions.  Nonetheless, it is our opinion the applicant’s denial of reenlistment resulting in his honorable discharge upon the completion of his required active service was the result of his unsatisfactory performance and his failure to meet NCO responsibilities as outlined in AFI 36-2618 rather than the result of his diagnosis of OCPD.  Furthermore, we find no evidence of any procedural errors in the processing of the applicant’s nonselection for reenlistment which includes a review of the applicant’s appeal by the PACAF/A1 who denied the appeal on 10 September 2006.  With respect to counsel’s request that all documents referencing a mental health diagnosis be removed from the applicant’s records;  as pointed out by the BCMR Psychiatric Consultant, the applicant appears to not have any mental health records on file; therefore, there are no mental health records to remove.  Notwithstanding the absence of mental health records, we note the AF Form 418 does include reference to his mental health evaluations and diagnosis of OCPD and since we find no error or injustice in the applicant’s nonselection for reenlistment, we find no reason to remove this document from the applicant’s master personnel record.  In view of the above, we find counsel has not sustained the burden of proof of an error or injustice to warrant awarding monetary damages in the amount of $423,828.20 for back pay, cost of health benefits and attorney fees and costs, restoration of 140 days of lost leave and removal of all documents referencing the applicant’s mental health and diagnosis of OCPD.  With respect to the request 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 nor does 10 U.S.C. § 1552 authorize the BCMR to award attorney's fees.  In view of the above, it is our conclusion the Board’s decision on 17 February 2015 in the applicant’s initial case to remove the referral EPR and award the applicant his 7-skill level and deny the remaining requests was proper and fitting based on the substantiated allegations of reprisal.    Therefore, in the absence of evidence to the contrary, we find no basis to recommend granting any of the requested relief.

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-2013-03314 in Executive Session on 26 January 2017 under the provisions of AFI 36-2603:

, Panel Chair
, Member
, Member

The following documentary evidence pertaining to AFBCMR Docket Number BC-2013-03314 was considered:

	Exhibit U.   Letter, Counsel, dated 1 March 2016, w/atchs.
	Exhibit V.   Memorandum, OUSD P&R, dated 29 September 2016
	Exhibit W.   Record of Proceedings, dated 3 November 2015, 
			   w/Exhibits.
	Exhibit X.   Applicant’s Master Personnel Records
	Exhibit Y.   Report of Investigations, undated (withdrawn).
	Exhibit Z.   Letter, AFBCMR, dated 28 October 2016
	Exhibit AA.  Memorandum, BCMR Psychiatric Consultant,
			   Dated 19 December 2016.
	Exhibit BB.  Letter, AFBCMR, dated 19 December 2016.   

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.
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