RECORD OF PROCEEDINGS AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS IN THE MATTER OF: DOCKET NUMBER: BC-2014-00730 COUNSEL: HEARING DESIRED: YES APPLICANT REQUESTS THAT: Her Separation Program Designator (SPD) code be changed to SFJ – Permanent Disability Retirement. APPLICANT CONTENDS THAT: The applicant, through counsel, contends she was awarded disability compensation from the Department of Veteran’s Affairs (DVA) and her discharge from the military should reflect disability retirement as well. The applicant’s complete submission, with attachments, is at Exhibit A. STATEMENT OF FACTS: The applicant initially entered the Regular Air Force on 20 Jul 94. On 19 Dec 98, the applicant was furnished an honorable discharge, with narrative reason for separation of “Completion of Required Active Service,” along with an SPD code of “JBK” and Reenlistment Eligibility (RE) code of 2X “(1st term, 2nd term or career airman considered but not selected for reenlistment).” She was credited with four years and five months of active service. By virtue of a DD Form 149, dated 14 Dec 99, the applicant requested that her DD Form 214, Certificate of Release or Discharge from Active Duty, be corrected to reflect RE code “3K” – Reserved for use by HQ AFPC or the Air Force Board for Correction of Military Records (AFBCMR) when no other reenlistment eligibility code applies or is appropriate. The applicant contended that her non-selection for reenlistment and Unfavorable Information File/Control Roster actions were unjust. However, after a thorough review of the evidence of record, on 27 Oct 00, the Board denied her request as it found that her substandard record of performance and not meeting military standards was a sufficient basis for her to be denied reenlistment. However, the majority of the Board concluded that it would be in the interest of justice to correct the applicant’s RE code to allow her the opportunity for future military service; as a matter of fairness and the applicant’s honorable characterization of service. The applicant did subsequently re-enter military service in the Air National Guard on 8 Dec 00, where she was promoted to Senior Airman (E-4) on 26 Jul 01. On 1 Feb 03, the applicant entered a special active duty tour as a reservist and served through 19 Jun 03. On 12 Jun 03, a Line of Duty (LOD) determination was initiated on the applicant for thyroid goiter and depression incurred while in the line of duty. The remaining relevant facts pertaining to this application are contained in the memorandum prepared by the Air Force office of primary responsibility (OPR), which is attached at Exhibit C. AIR FORCE EVALUATION: AFPC/DPSOR recommends denial indicating there is no evidence of an error or an injustice. The Air Force Board For Correction Of Military Records (AFBCMR) convened on 27 Oct 00 based on an application submitted by the applicant and directed that the applicant's RE code be changed to "3K". The AFBCMR believed that this RE code change would allow the applicant an opportunity for future military service through a waiver process. The Board did not direct correction to the SPD code of JBK and it did not direct correction to the narrative reason for separation. Although the AFBCMR changed the applicant’s RE code to “3K,” the original circumstances surrounding her separation remained in effect; therefore, the SPD code and narrative reason for separation are correct as indicated on the DD Form 214. Based on documents that are on file in the master personnel records, the discharge, to include her SPD code, narrative reason for separation, and character of service were consistent with the procedural and substantive requirements of the Air Force instruction and was within the discretion of the discharge authority. A complete copy of the AFPC/DPSOR evaluation is at Exhibit C. The AFBCMR Medical Consultant recommends denial indicating there is no evidence of an error or an injustice. The military Disability Evaluation System (DES), established to maintain a fit and vital fighting force, can by law, under Title 10, United States Code, 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 “snap shot” time of separation and not based on future occurrences. Moreover, under DoDI 6130.04 [Jan 2005] and .03 [Apr 2010], Medical Standards for Appointment, Enlistment, or Induction in the Armed Forces, “Current history of anxiety disorder, panic, agoraphobia, social phobia, simple phobias, obsessive-compulsive, or other acute reactions to stress, post- traumatic stress disorder are disqualifying,” which would have precluded service re-entry. Even if taking into consideration that possible existence of matters in extenuation that contributed to the applicant’s infractions and denial of re- enlistment, she was found sufficiently fit for release from service and, in relative short order [CY 2000], was allowed to re-enter military service; again presumed fit, following a previous Board action. The Medical Consultant opines the applicant’s worsening clinical status over time is likely representative of subsequent aggravating events, e.g., repeat assault in a DVA parking lot, albeit service connected, and is not representative of her fitness to serve during the period of active service that ended in Dec 98. Thus, unless granting relief is based upon the concept of restitution or reparation for the alleged crime of rape in 1996, the fact that the applicant has been granted service connection for Post-Traumatic Stress Disorder by the DVA and her condition now renders her unemployable, the Medical Consultant finds the evidence insufficient to justify an retroactive unfit finding and medical retirement from Dec 98. A complete copy of the AFBCMR Medical Consultant’s evaluation is at Exhibit D. APPLICANT'S REVIEW OF AIR FORCE EVALUATION: Counsel refutes virtually every point made by the OPR and Medical Consultant and argues that since the applicant’s assault, programs have been put in place to assist victims of sexual assault and ensure they do not meet the same types of injustices experienced by the applicant. The fact that the procedures at the time of her assault were correctly followed with respect to her discharge should not prevent this Board from taking corrective action now, as these procedures resulted in an unjust result then. Furthermore, the applicant contends that sexual assault terminated her military career. Although it did not do so immediately, it was still the principal direct cause of her career’s demise. The Medical Consultant’s opinion ignores the long-term effects of PTSD in this patient. She was never the same service member she was before the rape, and today she is not the same woman she would be but for her rape. The applicant tried to serve with honor following her trauma; however, she was unable to on a mental and emotional level. ADDITIONAL AIR FORCE EVALUATION: The AFBCMR Clinical Psychology Consultant recommends denial indicating insufficient evidence that the applicant suffered from a mental disorder at any point during her discharge. The Military Department, operating under Title 10, United States Code (U.S.C.), must base its actions upon evidence available at the “snap shot” in time of a Service member’s final military disposition. Compensation for post-service development or progression of a medical condition is not, by law, rated by the Military Department. It is the mission of the DVA, as seen in this case, to pick up where the Military Department leaves off. The Clinical Psychology Consultant notes that medical records contemporaneous with the applicant’s discharge in 1998 that would provide a “snap shot” from that point in time are lacking in this case. Later military medical documentation does not add support to the applicant’s request as she denied current and historical mental health symptoms when assessed at Military Entrance Processing Station in 2000, and in 2003 she was noted to have attributed depressive symptoms to a thyroid problem. Unfortunately, a review of the applicant’s Enlisted Performance Reports also did not provide a compelling picture of an Airman with unlimited potential whose career was cut short by symptoms of a compensable mental disorder. Regrettably, the Consultant opines insufficient evidence has not been provided to support the argument that the applicant suffered from a mental health condition so severe at the time of any of her discharges from any component of the Air Force that she met criteria for processing via the DES. A complete copy of the AFBCMR Clinical Psychology Consultant’s evaluation is at Exhibit G. APPLICANT'S REVIEW OF ADDITIONAL EVALUATION: A copy of the Air Force evaluation was forwarded to the applicant on 11 Jun 15 for review and comment within 30 days (Exhibit H). 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. We took notice of the applicant’s complete submission, to include counsel’s rebuttal comments, in judging the merits of the case; however, we agree with the opinions and recommendations of the Air Force office of primary responsibility (OPR), and the AFBCMR Medical and Clinical Psychology Consultants and adopt their rationale as the basis for our conclusion the applicant has not been the victim of an error or injustice with respect to her Separation Program Designator code. We do not believe the decision by the Department of Veterans Affairs (DVA) to grant the applicant service connection and disability compensation for her post-traumatic stress disorder (PTSD) establishes a basis for a retroactive decision by the Air Force to grant the applicant a medical retirement. While we are very sensitive to the applicant’s circumstances, neither the evidence of record, nor the documentation provided by the applicant are sufficiently persuasive for us to conclude that she should have been found unfit at the time of her separation. The fact that she subsequently, successfully, served in the Air National Guard and Air Force Reserve undermines her argument that she was unfit for duty at the time of her release and, thus, should have been entitled to processing under the Disability Evaluation System (DES). As indicated by the AFBCMR Medical Consultant, the Department of Defense can only offer disability compensation for unfitting conditions that caused the early termination of a member’s military career. On the other hand, the Department of Veteran’s Affairs is empowered to evaluate any medical condition incurred in the line of duty, not just those rendering a member unfit, and provide disability compensation. As such, we believe the applicant would be well-served to avail herself of the services of the DVA to ensure that any potential chronic effects of the sexual assault are appropriately treated and evaluated in the proper venue. Therefore, in the absence of persuasive evidence to the contrary, we find no basis to recommend granting the relief sought in this application. 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-2014-00730 in Executive Session on 16 Jul 15, under the provisions of AFI 36-2603: The following documentary evidence pertaining to AFBCMR Docket Number BC-2014-00730 was considered: Exhibit A. DD Form 149, dated 12 Feb 14, w/atchs. Exhibit B. Applicant's Master Personnel Records. Exhibit C. Memorandum, AFPC/DPSOR, dated 14 Mar 14. Exhibit D Memorandum, AFBCMR/Medical Consultant, dated 9 Sep 14. Exhibit E. Letter, SAF/MRBR, dated 27 Oct 14. Exhibit F. Letter, Counsel, dated 21 Nov 14. Exhibit G. Memorandum, AFBCMR/Clinical Psychology Consultant, dated 28 May 15. Exhibit H. Letter, SAF/MRBR, dated 11 Jun 15.