RECORD OF PROCEEDINGS AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS IN THE MATTER OF: DOCKET NUMBER: BC-2013-04647 COUNSEL: NONE HEARING DESIRED: NO ________________________________________________________________ APPLICANT REQUESTS THAT: His discharge be changed to a medical retirement. ________________________________________________________________ APPLICANT CONTENDS THAT: He should have been medically retired due to an injury he sustained while on active duty that caused him to be incompetent. He was incorrectly diagnosed. In support of his request, the applicant provides copies of his DD Form 214, Certificate of Release or Discharge from Active Duty; Department of Veterans Affairs (DVA) rating decision and extracts from his military personnel records. The applicant’s complete submission, with attachments, is at Exhibit A. ________________________________________________________________ STATEMENT OF FACTS: The applicant’s military personnel records indicate he enlisted in the Regular Air Force on 19 Sep 88. On 10 Jul 89, the applicant’s commander notified him that he was initiating action to discharge him from the Air Force for unsatisfactory duty performance specifically he failed to successfully complete a required course of technical training, In Accordance With (IAW) Air Force Regulation (AFR) 39-10, Administrative Separation of Airmen, paragraph 5-26a. On 10 Jul 89, the applicant acknowledged receipt of the discharge, was afforded the opportunity to consult military counsel and to submit statements in his own behalf. On 13 Jul 89, the applicant consulted counsel and submitted statements on his behalf. On 19 Jul 89, the staff judge advocate found the recommendation for discharge legally sufficient. On 26 Jul 89, the recommendation for discharge was approved by the discharge authority. On 28 Jul 89, the applicant was discharged with an honorable characterization of service and narrative reason for separation of “Unsatisfactory Performance.” He served 10 months and 10 days on active duty. According to the 1 Oct 08, DVA Rating decision provided by the applicant, he received an overall or combined rating of 100 percent for schizoaffective disorder effective 26 Jul 05. ________________________________________________________________ AIR FORCE EVALUATION: AFPC/DPSOR recommends denial. A review of the applicant’s master personnel records reflect the discharge, to include the Separation Program Designator (SPD) code, narrative reason for separation and character of service, was appropriately administered and within the discretion of the discharge authority. The applicant was counseled concerning his academic failure and was given opportunities to improve, but with no success. He also had approximately four instances where he reported late to class and one instance where he was not in proper dress and appearance standards after haven already been counseled about it earlier. This was the applicant’s second training course failure and the commander determined that the applicant’s inability to put forth the effort needed to successfully complete technical training along with his failures to go at the time prescribed to his appointed place of duty did not merit any further rehabilitative efforts and the applicant was recommended for discharge. There was no evidence of an error or injustice in the discharge processing. The complete DPSOR evaluation is at Exhibit C. The BCMR Medical Consultant recommends denial. Due to the total span of time since the applicant’s discharge, it is virtually impossible to now invalidate as erroneous, the lack of mental defect by a presumably competent military medical authority and the administrative decisions rendered by those familiar with the applicant’s pattern of performance at the time of his military service. The alleged error or injustice is based largely upon newly reported statements but presented decades post-service and retroactively applied. The military Disability Evaluation System (DES), established to maintain a fit and vital fighting force, can by law, under Title 10, United States Code (U.S.C.), 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. On the other hand, operating under a different set of laws, Title 38, U.S.C., which governs the DVA compensation system, was written to allow awarding compensation ratings for any condition with a nexus with military service. The DVA is chartered to offer compensation and care to all eligible veterans for any service-connected disease or injury without regard to whether it was unfitting for continued military service. The Military Department acted within its authority to separate the applicant based upon the evidence present at the time of military service. Similarly, the DVA has acted within its authority to establish a nexus between the applicant’s difficulties during military service and the progressive display of symptoms since leaving military service. However, the applicant has not met the burden of proof of error or injustice that warrants the desired change of the record. A complete copy of the BCMR Medical Consultant’s evaluation is at Exhibit D. ________________________________________________________________ APPLICANT'S REVIEW OF AIR FORCE EVALUATION: The applicant provides a signed statement from his mother reiterating the applicant’s contention that his behavior issues were the direct result of an injury he sustained from hitting his head on a bedpost while in Basic Military Training (BMT). His mother asserts that her son was just fine prior to this accident. The complete Applicant’s Response, with attachments, is at Exhibit F. ________________________________________________________________ FINDINGS AND CONCLUSIONS OF THE BOARD: 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 over 24 years, which has greatly complicated the ability to determine the merits of his position. He has not provided evidence that supports he is the victim of error or injustice. Therefore, in view of the above, we cannot conclude it would be in the interest of justice to excuse the applicant’s failure to file in a timely manner. ________________________________________________________________ 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 AFBCMR Docket Number BC-2013-04647 in Executive Session on 7 Aug 14, under the provisions of AFI 36-2603: , Panel Chair , Member , Member The following documentary evidence was considered: Exhibit A. DD Form 149, dated 24 Sep 13, w/atchs. Exhibit B. Applicant's Available Master Personnel Records Exhibit C. Letter, AFPC/DPSOR, dated 13 Mar 14. Exhibit D. Letter, BCMR Medical Advisor, dated 7 May 14. Exhibit E. Letter, SAF/MRBR, dated 15 May 14. Exhibit F. Letter, Applicant, dated 15 May 14, w/atchs.