RECORD OF PROCEEDINGS AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS IN THE MATTER OF: DOCKET NUMBER: BC-2014-00517 COUNSEL: NONE HEARING DESIRED: NO APPLICANT REQUESTS THAT: His discharge from the Air Force Reserve (AFR) be changed to a medical retirement. APPLICANT CONTENDS THAT: He was separated for issues related to Post-traumatic Stress Disorder (PTSD). After 16 years of honorable service, he was unjustly denied retirement. The Board should consider it in the interest of justice to consider his untimely application as he was advised by the Disabled American Veterans (DAV) that he should have been medically retired. The applicant’s complete submission is at Exhibit A. STATEMENT OF FACTS: On 16 June 1987, the applicant entered the AFR. In a letter dated 12 April 2005, the XXX Aerospace Medicine Squadron (XXX AMDS) advised the applicant that a Fitness for Duty Determination had been initiated. The applicant was advised to review a Medical Evaluation Board (MEB) fact sheet and to sign a Physical Evaluation Board (PEB) election and return the documents for consideration no later than 12 May 2005. According to an AFRC/SGPA letter dated 13 June 2005, the applicant was found medically disqualified for continued military duty In Accordance With (IAW) AFI 48-123, Medical Examinations and Standards, by reason of depressive disorder treated with Paxil. In a letter dated 20 June 2005, the AFRC Physical Evaluation Board (PEB) Manager stated the applicant did not return an election to have his case reviewed by the Informal Physical Evaluation Board (IPEB) and that the wing commander did not recommend retention. In a letter dated 6 July 2005, the XXX Aircraft Maintenance Squadron Commander (XXX AMXS/CC) recommended the applicant for a Reserve retirement. According to a letter from AFRC/DPM dated 27 July 2005, the applicant was notified of the recommendation that he be discharged IAW AFI 36-3209, Separation and Retirement Procedures for Air National Guard and Air Force Reserve Members, paragraph 3.14, Physical Disqualification. He was advised that because he had over 15 years but less than 20 years of satisfactory service, he was eligible to be transferred to the Retired Reserve. He would qualify for retired pay at age 60 per 10 U.S.C. § 12731 if he was approved for the transfer. The applicant was advised to complete AF Form 131, Application for Transfer to the Retired Reserve, within 15 days after receipt of the memorandum and that failure to do so would constitute a waiver of this right and discharge proceedings would continue. The applicant was advised of his right to consult legal counsel and was appointed a judge advocate to assist him. On 11 August 2005, the Grandbury, TX United States Postal Service informed AFRC that the applicant had moved and left no forwarding address. An AF Form 1768, Staff Summary Sheet, dated 23 September 2005, reflects the AFRC Director of Personnel (AFRC/DP) requested the AFRC Vice Commander (AFRC/CV) approve the discharge recommendation IAW AFI 36-3209. The specific reason for the recommendation was the applicant’s physical disqualification (depressive disorder treated with Paxil). He had 16 years, 11 months and 28 days of service and was eligible for an early 15 year retirement due to physical disqualification. However, all attempts to contact the applicant had been exhausted; therefore, it was recommended the discharge proceedings against the applicant continue to be processed. According to a letter dated 30 September 2005, the AFRC/CV determined the evidence substantiated disqualification from continued service and directed the applicant be separated with an honorable discharge IAW AFI 36-3209. Per Reserve Order A-001 dated 5 October 2005, the applicant was discharged from the AFR effective 5 October 2005 with service characterized as honorable. AIR FORCE EVALUATION: AFRC/A1K defers the decision for a medical determination and states the requested correction is not within the purview of authority for the programs managed by their office. A complete copy of the A1K evaluation is at Exhibit C. The BCMR Medical Consultant states that the decision to grant the applicant relief cannot be based upon a medical assessment or whether an error has occurred, but solely upon consideration of whether depriving him of an early retirement represents an injustice. The Medical Consultant opines that Air Force officials acted within their authority in discharging the applicant under the provisions of AFI 36-3209. On 27 July 2005, the applicant was recommended for an administrative discharge due to a disqualifying medical condition, a medical condition presumed to have been determined not in the Line of Duty (LOD). It should also be noted that the applicant was identified a year earlier by his commander on 15 March 2004 that he sought medical care for a condition that validated concerns regarding his suitability for continued service and that it seemed likely that some of the applicant’s less than satisfactory performance and conduct may have been in hindsight attributable to his medical condition. The applicant was also not recommended for retention at the time. However, since he had completed greater than 15, but less than 20, years of service, he would have been alternatively eligible for an early retirement under 10 U.S.C. § 12731. However, several administrative entries indicated failed efforts to communicate with the applicant via telephone or via his last known mailing address. As a result of the applicant’s failure to respond, the decision was made to proceed with administrative discharge. After leaving military service, the evidence indicates that he received continued medical care from the Department of Veterans Affairs (DVA) for various acute minor illnesses or injuries. Medical entries dated 27 March and 31 March 2006 show he reported he was diagnosed with PTSD after getting out of the Reserves. The medical provider issued an Axis 1 “rule-out” diagnosis of PTSD and alcohol abuse, noting the applicant had not reported full criteria to meet diagnosis but reported multiple symptoms of such. Thereafter, on 23 August 2007 he presented for a Preventive Health Screening which was positive for PTSD. The medical entry shows he was seen in 2006 and had a Mental Health (MH) history completed but no-showed to them twice. The applicant was also seen on 1 November 2007, when a provider reflected upon his previous assessments in March and August 2007 and noted he was restarted on medications; reporting nightmares about once per month and that he still startles at sudden noises and recurrent intrusive memories of his trauma while helping at Khobar Towers. The Medical Consultant has not been supplied the DVA rating decisions but found evidence in a 30 April 2011 medical entry which shows he was service-connected for PTSD and rated at 30 percent. Additionally, there was a statement that the applicant was diagnosed with PTSD five years prior and was reportedly discharged from the military at about the same time. The Medical Consultant’s complete evaluation, with attachment, is at Exhibit D. APPLICANT'S REVIEW OF AIR FORCE EVALUATION: On 25 August 2014, copies of the Air Force evaluations were forwarded to the applicant for review and comment within 30 days (Exhibit E). As of this date, no response has been received by this office. ADDITIONAL AIR FORCE EVALUATION: AFRC/A1K states they initially deferred the matter to the USAF Physical Disability Division and AFRC/SG based on A1KK’s interpretation that the applicant only desired a disability retirement. However, further review indicates this issue is within the purview of military personnel programs in regards to the applicant’s eligibility for a Reserve retirement in lieu of the administrative discharge he received based on a non-service connected disqualifying medical condition (depressive disorder) and recommends he be transferred to the Retired Reserve. He was discharged from the Reserves on 5 October 2005 IAW AFI 36-3209. At the time, he had 16 years, 11 months and 28 days of satisfactory service. Per 10 U.S.C. § 12371b, a retirement with pay at age 60 is authorized for members like the applicant who have 15 but less than 20 years of satisfactory service and are no longer qualified for membership in the Selected Reserve solely because they are unfit based on physical disability. Accordingly, he would have been transferred to the Retired Reserve List with pay at age 60 in lieu of discharge had A1KK been able to contact him at his last known address. The complete A1K evaluation, with attachments, is at Exhibit F. APPLICANT'S REVIEW OF AIR FORCE EVALUATION: On 9 January 2015, a copy of the Air Force evaluation was forwarded to the applicant for review and comment within 30 days (Exhibit G). As of this date, no response has been received by this office. ADDITIONAL AIR FORCE EVALUATION: The BCMR Clinical Psychology Consultant recommends denial of the applicant’s request for a medical retirement. There is no evidence in the materials provided for this case that the applicant’s MH condition at the time of discharge was so severe that a reasonable clinician, using the data available at the “snapshot” in time, would have argued for processing his case differently than via the course of action that ultimately led to his administrative separation. The applicant was discharged from the AFR on 5 October 2005 after failing to provide required documentation to the medical staff of his Reserve unit that would enable processing him for a fitness for duty determination. A NARSUM completed 17 April 2005 states the applicant triggered a world-wide duty evaluation when he was prescribed a maintenance medication for a psychiatric condition. He was not recommended for retention in the AFR at that time due to his failure to provide documentation of his treatment status to the Reserve component. Numerous entries in his personnel and service treatment records reveal unsuccessful attempts to obtain necessary medical documents. A memorandum dated 27 July 2005 was sent to the applicant notifying him of the separation action. There is no record that he elected to have his case reviewed by an IPEB. The Clinical Psychology Consultant notes that records provided by the applicant do not offer compelling evidence that his PTSD was caused or aggravated by military service or was so severe that he should have been deemed unfit for continued military service IAW DODI 1332.38, Physical Disability Evaluation, (in effect at the time of his separation) and compensated for same. The Clinical Psychology Consultant opines his repeated failure to appropriately participate in the fitness for duty process led to a dearth of any relevant, quality information that may have led the AFR to take any course of action other than administrative separation. Moreover, a review of the records supplied for this case did not lead to a different conclusion, even with the benefit of hindsight. It does appear the DVA established service connection for PTSD; nevertheless, the applicant is advised that the Military Departments operate under 10 U.S.C. and bases it actions upon the evidence available at the “snap shot” in time of final military disposition and the mere existence of a diagnosis at that time does not necessitate a recommendation for medical retirement. On the other hand, the DVA operating under a different set of laws, 38 U.S.C., with a different purpose, is authorized to offer service connection and compensation for any medical condition for which it has established a nexus with military service without regard to the narrative reason for release from service or the length of time transpired since discharge. Thus, a post-service disability rating from the DVA does not equate to a conclusion that a veteran had a ratable disability at the time of discharge from military service. MH treatment records from the DVA indicate he was first assessed for PTSD on 27 March 2006. At that time he reported being diagnosed with PTSD while in the AFR and attributed the reason for his discharge to this condition. The DVA provider requested further documentation to substantiate his claim. He was next seen in the DVA briefly during the fall of 2007 and winter of 2008 and diagnosed with PTSD and alcohol dependence. He was seen once in 2009 and once more on 30 April 2011. The 30 April 2011 note indicates he had never been in therapy but was open to it. No other MH treatment records were uncovered in the materials provided by the applicant. Regrettably, the Clinical Psychology Consultant recommends denial of the request for a medical retirement but concurs with AFRC’s recommendation that he be transferred to the Retired Reserve effective 5 October 2005. A complete copy of the BCMR Psychology Consultant’s evaluation is at Exhibit I. APPLICANT'S REVIEW OF AIR FORCE EVALUATION: On 26 May 2015, a copy of the Air Force evaluation was forwarded to the applicant for review and comment within 30 days (Exhibit I). 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 not timely filed; however, it is in the interest of justice to excuse the failure to timely file. 3. Insufficient relevant evidence has been presented to demonstrate the existence of an error or injustice to warrant a medical retirement. We took notice of the applicant’s complete submission in judging the merits of the case; however, other than the recommendation to transfer the applicant to the Retired Reserve, we agree with the opinions and recommendations of the BCMR Medical and Clinical Psychology Consultants’ and adopt their rationale as the basis for our conclusion that the applicant has failed to sustain his burden of proof of either an error or injustice. Although AFRC/A1K recommends that he be transferred to the Retired Reserve List, the applicant did not make this request; therefore, we find no basis to act on AIK’s recommendation. In view of the above and in the absence of evidence to the contrary, we find no basis to grant any relief in this application. 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-2014-00517 in Executive Session on 20 November 2014, 18 February 2015 and 6 July 2015 under the provisions of AFI 36- 2603: , Panel Chair , Member , Member The following documentary evidence was considered: Exhibit A. DD Form 149, dated 31 January 2014. Exhibit B. Applicant's Master Personnel Records. Exhibit C. Memorandum, AFRC/A1K, dated 21 May 2014. Exhibit D. Memorandum, BCMR Medical Consultant, dated 15 August 2014, w/atch. Exhibit E. Letter, SAF/MRBR, dated 25 August 2014. Exhibit F. Memorandum, AFRC/A1K, dated 6 January 2015, w/atchs. Exhibit G. Letter, SAF/MRBR, dated 9 January 2015. Exhibit H. Memorandum, BCMR Clinical Psychology Consultant, dated 14 May 2015. Exhibit I. Letter, SAF/MBRB, dated 26 May 2015.