1.	RECORD OF PROCEEDINGS
AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS

IN THE MATTER OF: 			DOCKET NUMBER: BC-2014-01814

						COUNSEL:  NONE

						HEARING DESIRED:  YES  

APPLICANT REQUESTS THAT:

His records be corrected to reflect that he was permanently retired for physical disability.

His Re-entry (RE) code 1J (Eligible to reenlist but elected to separate) be corrected to reflect 2Q (Medically retired or discharged).  

APPLICANT CONTENDS THAT:

He was placed on a profile and receiving physical therapy; while awaiting surgery.  During this period he was given a 4K reenlistment eligibility code (medically disqualified for continued service; or pending evaluation by Medical Evaluation Board (MEB)/Physical Evaluation Board (PEB)). 

He was harassed and pushed out of the military without due process.  In addition, he was ordered to take a urinalysis examination one week after filing an Equal Opportunity and Treatment (EOT) complaint, denied consideration for step promotion to technical sergeant (E-6), and removed from the Base Career Advisory position.  

He is a 100 percent disabled Air Force veteran; however, he was not granted disability retirement in retaliation for filing an EOT complaint.  His disability eligibility documents were unlawfully withheld from being processed through the Disability Evaluation System (DES), which prevented proper consideration for disability retirement.  The office of primary responsibility (OPR) at Goodfellow Air Force Base (GAFB) failed to act in accordance with its own internal regulations which required coordination of airman coded as 4K to be processed through the MEB/PEB.  This process would have allowed his level of disability, which exceeded the 30 percent threshold, to be established and his disability retirement status consummated. 

He was severely disabled at the time of his discharge and he asked for referral to the DES at the time of his separation physical. However, he was denied such consideration as direct retaliation for filing an EOT complaint, despite the evidence or record demonstrating ongoing physical therapy, surgery scheduled, 3+ Lachmans; and torn knee ligament conditions. 

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

STATEMENT OF FACTS:

The applicant initially entered the Regular Air Force on 5 August 1980.  

On 17 September 1990, according to the applicant, he submitted an EEO complaint in regards to an insensitive remark made by a chief master sergeant (E-9). 

On 13 October 1991, the applicant was furnished an honorable discharge, with a narrative reason for separation of “Completed Extended Enlistment,” with a separation program designator (SPD) code of “K13” (Completion of Extended Enlistment) and Reentry Code of “1J” (Eligible to reenlist but elected to separate).  He was credited with 11 years, 2 months, and 8 days of active service.   

On 8 November 2006, a civilian psychologist noted the applicant’s initial episode of care in November 2003 at which time he received an assessment of post-traumatic stress disorder (PTSD) and Major Depression “related to his exposure to events at the Bastrop Federal Correctional Facility.”  The provider concluded the applicant met the requirements for complete disability and that any return to an outside work environment would be likely to exacerbate his symptoms of PTSD and further worsen his condition.  

On 3 April 2014, according to the Director of Whistleblower Reprisal Investigations, the applicant filed a complaint with the Department of Defense Hotline, alleging reprisal based on the issuance of an incorrect RE code, 1J.   

On 24 April 2014, the applicant was informed that under Title 10 United States Code § 1034, a member must file a reprisal complaint within 60 days of becoming aware of the personnel action at issue.  Since he did not file a reprisal complaint with the Inspector General (IG) until 3 April 2014, his compliant was not timely filed and his case was dismissed. 

On 10 August 2014, the applicant requested to “immediately freeze” the adjudication of his case (administratively close) until such time his counsel submits a thorough brief.  

On 15 October 2014, the applicant’s case was administratively closed.  

On 29 October 2014, the applicant, requested his case be reopened.  

On 8 July 2015, the applicant requested his case be administratively closed until which time he was able to proceed with adequate legal counsel.  

On 17 July 2015, the applicant’s case was administratively closed.

On 10 December 2015, the applicant requested his case be reopened.  He submitted documentation from the Department of Veterans Affairs (DVA) reflecting a DVA psychologist indicating he has no military records showing the presence of mental health symptoms because he never sought behavioral health treatment while in the Air Force.  However, his medical records note that mental health treatment started in 2003.  It is at least as likely as not that the applicant’s current symptoms associated with generalized anxiety disorder are related to stressful events that occurred during his military service.  The applicant was currently 50 percent service connected for generalized anxiety disorder.  The delay in requesting a correction to his military records is consistent with the avoidance symptoms of PTSD.    

On 15 November 2017, the AFBMCR notified the applicant that he had not exhausted his available avenue of administrative relief since he had an active case under review with the Department of Defense Office of Inspector General (DoD/IG).  As such, his case was closed pending the results of the review and his request to reopen his case.  

On 26 January 2018, the AFBMCR notified the applicant that his case was reopened because his case under review by the DOD/IG was not in regards to his requested relief; but against the AFBCMR.  

The remaining relevant facts pertaining to this application are contained in the memorandums prepared by the Air Force offices of primary responsibility (OPR), which are attached at Exhibits C and F.  

AIR FORCE EVALUATION:

BCMR Medical Consultant recommends denial.  The applicant has not met the burden of proof that warrants the desired change of the record.  In the interest of justice an attempt to organize the supplied facts were made in an effort to identify any actionable error or injustice in the applicant’s case.  However, granting the applicant’s petition, as in any Court decision, requires presentation of certain facts to justify such a finding.  Putting aside any unproven alleged actions or inactions on the part of personnel officials, such evidence should include documentary medical evidence that the applicant remained medically disqualified at or about the date of discharge and documentary evidence that he applied for re-enlistment, but was denied, while still medically disqualified; noting he also stated, “I wanted to re-enlist.”  It should be noted that the applicant’s Enlisted Performance Report (EPR) for the period ending in April 1991 showed no impediment to duty, as noted in the overall “5” assessment from the rater and endorser.  Moreover, an AF Form 2096, Classification/On-the-Job Training Action, dated and signed by a personnel official on 15 September 1990, by the applicant on 20 September 1990, and by the 3498th Mission Support Squadron Commander on 26 September 1990, shows that the applicant successfully completed all prerequisites and was approved for award of the 7 skill-level, gaining a new primary AFSC of 73274 [previously 73272].  

If the applicant was denied re-enlistment, as he alleges, with an existing unresolved disqualifying medical condition, this would represent an error and injustice to the applicant; which would have otherwise justified coordination with medical officials to determine if the applicant warranted a Medical Hold, to either complete necessary treatment or to conduct a MEB.  If the applicant was no longer medically disqualified, e.g., had undergone the knee surgery scheduled for January 1991, had recovered, and no longer held an “L4T” profile at the time of discharge, he had an option to request continued service or re-enlistment, but at the discretion of the commander. 

There is no intervening service medical evidence supplied for the gap in time from the time of the applicant’s “L4T” profile, initiated on 19 November 1990, to his date of discharge.  This makes it virtually impossible to determine the applicant’s physical fitness or worldwide qualification for retention at or about the time of his discharge.  Nevertheless, the disability rating computations recommended by a civilian certified physiatrist, in a letter dated 14 November 2014, is acknowledged.  However, unless these determinations were based upon clinical assessments at the time of the applicant’s discharge, effective 13 October 1991, or within the first 12 months of discharge, these would not be considered reflective of his level of impairment at or about the “snap shot” time of discharge.  The applicant has also not supplied any official examinations and rating decisions by the Department of Veterans Affairs (DVA), which are reflective of his impairments at or about the time of discharge for consideration.

The DES is established to maintain a fit and vital fighting force and 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 progression of disease or injury; nor any newly diagnosed medical condition that was not proven unfitting during military service, but with an established nexus with military service, e.g., the applicant’s PTSD.  Department of Defense Instruction (DoDI) 1332.38, Physical Disability Evaluation, Enclosure 3, Part 3, Standards For Determining Unfitness Due To Physical Disability Or Medical Disqualification, paragraph E3.P3.2.1, 1996, albeit post-dating the applicant’s separation, reads: “A Service member shall be considered unfit when the evidence establishes that the member, due to physical disability, [was] unable to reasonably perform the duties of his or her office, grade, rank, or rating (hereafter called duties) to include duties during a remaining period of Reserve obligation.”  This latter policy statement has been retained under most current policy, DoDI 1332.18, Disability Evaluation System, August 5, 2014, and include two additional criteria, which read: “b. A Service member may also be considered unfit when the evidence establishes that: (1) The Service member’s disability represents a decided medical risk to the health of the member or to the welfare or safety of other members; or (2) The Service member’s disability imposes unreasonable requirements on the military to maintain or protect the Service member.

A mere diagnosis is not determinative of unfitness to service and there must be evidence that one or more medical conditions interfered with a service member’s ability to reasonably perform the duties of his or her office, grade, rank, or rating.  

If, on the other hand, the applicant supplies evidence that he had the same level of knee impairment demonstrated in November 1990 [above Facts, e.g., “3+ Lachman’s instability of the knee requiring a DonJoy knee brace], which remained unchanged or worsened at about the time of discharge [October 1991], then it would have been proper to delay his separation [Medical Hold] and refer him for further treatment or a MEB consideration.  

Evidence has not been supplied to determine whether the applicant underwent knee surgery planned for January 1991, nor an assessment of his response to any surgical treatment and rehabilitation, nor whether he continued to require significant profile restrictions up through the date of separation.  The applicant has not supplied a copy of his separation physical assessment to determine whether the evaluating provider addressed whether the applicant required further care or a delay [Medical Hold] of his separation to complete necessary evaluations or treatment.  Such objective evidence would allow validation as to whether the applicant should have been referred for MEB processing prior to his release from military service.  

The fact that his conditions may have worsened since release from military service and new conditions may have arisen as a consequence of his military service, e.g., PTSD, would not be determinative of his fitness to serve at the time of discharge.   Stated differently, although the applicant has received several medical diagnoses for which an independent physical medicine specialist has assigned disability rating, these findings are not proof that the medical conditions warranted career termination.  There is also no post-service medical evidence supplied upon which to consider the probative value of any VA rating determinations that may be reflective of the applicant’s fitness or level of impairment during the 12 months following his date of release from service.

The DVA operates under Title 38, United States Code (U.S.C.), with a different set of laws and with a different purpose.  The DVA is authorized to offer compensation for any medical condition determined service incurred, without regard to [and independent of] its demonstrated or proven impact upon a service member’s retainability, fitness to serve, narrative reason for separation, or length of time since discharge.  With this in mind, Title 38, U.S.C., which governs the DVA compensation system, was written to allow awarding compensation for conditions that were not unfitting during military service or at the time of separation.  This is the reason why an individual can be found fit for release from military service for one reason and yet sometime thereafter receive a compensation rating from the DVA for one or more service-connected, but not militarily unfitting medical conditions.  The DVA is also empowered to conduct periodic re-evaluations for the purpose of adjusting the disability rating awards (increase or decrease) as the level of impairment from a given service connected medical condition may vary (improve or worsen, affecting future employability) over the lifetime of the veteran.  

A complete copy of the BCMR Medical Consultant evaluation is at Exhibit C.

APPLICANT'S REVIEW OF AIR FORCE EVALUATION:

He has confirmation from a witness of the actual existence of the racial discrimination complaint; which was the causal nexus of the documented acts of retaliations.  He was in excellent health, physically, and mentally; with zero pre-existing conditions upon entry into the Air Force.  During his final separation physical, the assigned examiner noted two separate medical diagnosis associated with his right knee that were required referrals to DES because they well exceeded the 30 percent threshold.  He requested a MEB/PEB but was told that the VA would handle his knee problems.  He made another request in June 1991; however, the physician was non responsive.  The former supervisor of the Retirement and Separations Section indicated he was not given proper consideration under the existing medical disability retirement standards at the time of his separation and he should be afforded the opportunity for his records to reflect his rightful entitlements.   

He had unsuccessful ACL reconstruction surgery which forced him to depart his employment in 1997.  In addition, he suffered numerous conditions that proved detrimental to his ability to maintain gainful employment post military service.  

He is able to establish his service connected condition that is associated with the racial discrimination, and overall mistreatment he received and it was used in retaliation as supported by the Supreme Court case of Burlington Northern and Santa Fe Railway Company vs. Sheila White.  Furthermore, he should be afforded consideration in accordance with former Secretary of Defense Chuck Hagels’ official guidance memorandum, dated 3 September 2014, which specifically indicates special consideration will be given to DVA determinations which have document PTSD or PTSD related conditions connected to military service.  

He was rated as 50 percent for general anxiety disorder.  His symptoms associated with general anxiety disorder are related to stressful events that occurred during his military service.  

A complete copy of the applicant’s response is at Exhibit E. 

ADDITIONAL AIR FORCE EVALUATION:

BCMR Psychiatric Advisory recommends denial.  The applicant’s assertion that his mental health condition is a result of prejudice and discrimination during his military has very limited factual support.  The applicant has never been seen by a mental health provider while on active duty and his Enlisted Performance Reports are indicative of an excellent duty performance, which contradicts the claim of unfitness due to the mental anguish.  The applicant’s first psychiatric diagnosis was not until 1997, 6 years post-service.  The medical records are very explicit on the origin of the applicant’s psychological disturbances, the major industrial accident that took place while he was employed at the federal facility.  This traumatic event has resulted in PTSD and depression and ultimately disability.  

Furthermore, by Diagnostic and Statistical Manual of Mental Disorders (DSM) IV, the diagnosis of PTSD requires the presence of the traumatic event, which did not occur in the applicant’s life until post-service.  According to DSM IV, the essential feature of PTSD is the development of characteristic symptoms following exposure to an extreme traumatic stressor involving direct personal experience of an event that involves actual or threatened death or serious injury, or other threat to one's physical integrity; or witnessing an event that involves death, injury, or a threat to the physical integrity of another person; or learning about unexpected or violent death, serious harm, or threat of death or injury experienced by a family member or other close associate.  A review of the applicant’s C&P exam where all the symptoms of PTSD were carefully marked, it becomes apparent that the trauma of the industrial accident was omitted intentionally or accidentally and as a result the DVA examiner arrived to the inaccurate conclusion that the applicant suffers from a Generalized Anxiety Disorder (GAD).  Unfortunately, without complete history, which must include the boiler explosion in 1997, the diagnosis provided by C&P psychologist is misleading.  The applicant’s symptomatology is most consistent with PTSD and therefore originated post-service.

Readdressing the applicant’s implicit desire for a medical retirement, 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 “snapshot”  time of separation and not based on post-service progression of disease or injury.  To the contrary, the Department of Veterans Affairs (DVA), operating under a different set of law, Title 38, U.S.C., is empowered to offer compensation for any medical condition with an established nexus with military service, without regard to its impact upon a member’s fitness to serve, the narrative reason for release from service, or the length time transpired since the date of discharge.  The DVA may also conduct periodic reevaluations for the purpose of adjusting the disability rating awards as the level of impairment from a given medical condition may vary [improve or worsen] over the lifetime of the veteran.

Therefore, even though the DVA has granted compensation for the applicant’s psychiatric condition, this evidence does not invalidate the appropriateness of the military discharge disposition.  

A complete copy of the AFBCMR Psychiatric Consultant evaluation is at Exhibit F.  

APPLICANT'S REVIEW OF ADDITIONAL AIR FORCE EVALUATION:

His verifiable reprisal issues were deflected.  He resubmitted his initial rebuttal response since the inaccuracies and omissions were not addressed.  He contends a response from an Austin Psychiatric Consultant substantively addresses the AFBCMR Psychiatric Consultant’s evaluation.  Specifically, it is opined that he has a need for routine and repetition.  He tends to hyper focus on that which distresses him.  This may unfortunately obscure his original intent by focusing attention on other issues.  He is currently in a weekly VA group for race-based trauma.  It is concluded that in-service stressors related to racial discrimination documented in his record are sufficient in severity and consistent with the type of stressor to cause PTSD.  Since current nomenclature doesn’t recognize race-based trauma as an activating event, additional exploration is irrelevant.  However, it does not diminish its importance.  Individuals exposed to previous traumas are at increased risk of developing PTSD when exposed to new trauma.  While he wishes something could have been done about the traumatic racial discrimination he experienced, his mission is to change his status in regards to his disability at the time of separation.  

He had an unfitting medical condition at the time of separation which caused him not to be qualified for worldwide duty.  As such he should have underwent a MEB.  This same unfitting condition resulted in his receipt of a “4K” RE code status on 31 December 1990.  

His separation physical revealed a diagnosis to his knee that would have barred entrance into the military and re-enlistment; however, it was ignored.  

His confirmed EOT complaint was verified in writing by a retired master sergeant who is the author of his EPR.  He provided his telephone number so that he may be contacted to substantiate the events of the EOT complaint.  The EOT activity is the nexus which led to subsequent acts of retaliation, such as, denial of repair to his torn knee ligaments and cartilage and the improper separation without a MEB.  In addition, he was demoted less than seven months after filing an EOT complaint.  In retaliation he was demoted from base career advisor to a personnel technician.  

Since his original submission, he has been enrolled in the Race Trauma Program and has been provided veteran assistance and reassurance.  However, during his attempts to obtain assistance he has observed over three thousand cases advancing ahead of him, causing him to file a Department of Defense Inspector General’s complaint.  In addition, the medical advisor did not impartially consider all of the facts.  

He has written testimony that the omission, withholding, and or lack of referral to the Disability Evaluation System (DES) because of his “4K” MEB ineligibility status is also the apparent basis for him not being considered under the existing medical disability retirement standards at that time.  

He had conditions that established a compensable rating even without consideration given during his military disability review.  However, this medical records review details conditions that would have been addressed if the appropriate MEB/PEB evaluations were conducted. He was denied a reasonable right to a hearing during through the MEB/PEB DES process.

His reenlistment ineligibility code was changed from “4K” to “1J” without the initiation of an Air Force Form 418 or MEB.

He was unable to participate in a self-defense program, in less than 52 days after his separation, due to his prior knee surgery.  He indicated it was a preexisting unresolved knee condition from the military.  It became worst, resulting in a 5th unsuccessful knee surgery.  He has been recommended for a total knee replacement.  

His military service dates were falsely represented in the advisory as 13 November 1985 through 13 October 1991.  His service from 5 August 1980 through 5 may 1985 was omitted.  This omission creates a false appearance that medical conditions referenced for this time period are somehow not service connected.  His total military service was ten years and eight months.  

He has been unable to run, or physically function in a capacity that an employer would accept since his separation from the air force.  It has been recommended by VA doctors that he consider a total knee replacement.  He reiterated that there was an abuse in discretion by not following the regulatory guidance in effect at the time of his improper separation.  He request that any presumption of regularity not be applied in order to justifiably address the documented adverse actions.  

A complete copy of the applicant’s response 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 injustice to recommend he was permanently retired for physical disability and his RE code 1J  be corrected to reflect 2Q.  We took notice of the applicant’s complete submission, to include his rebuttal responses, in judging the merits of the case; however, we agree with the opinions and recommendations of the BCMR Psychiatric Consultant and BCMR Medical Consultant and adopt their rationale as the basis for our conclusion the applicant has not been the victim of an error of injustice.  The applicant’s contentions are duly noted; however, we find no evidence or documentation that would lead us to believe that the applicant’s honorable discharge, with a narrative reason for separation of “Completed Extended Enlistment,” was not carried out properly and in accordance with the governing Air Force instructions.  While the applicant may believe he received retaliatory actions based upon filing an EOT complaint, there is nothing in the evidence provided which would lead us to believe this is the case.  We do not diminish the applicant’s assertions; however, based on his request for an EOT complaint in which he filed in 1990, SAF/IG does not have any responsive records and other than his own assertions we do not have confirmation to validate any wrongdoing.  We further note, while the applicant argues he was severely disabled at the time of his discharge, he has presented no documentary evidence whatsoever that he had a medical condition or impairment at the time of discharge that disqualified him for further service.  In regards to the applicant’s request to be afforded consideration of his diagnosed PTSD in accordance with former Secretary of Defense Chuck Hagels’ memorandum, we note even though the DVA granted him compensation there is no documentary evidence which invalidates the appropriateness of his honorable discharge, effective 13 October 1991.  The applicant’s case has undergone an exhaustive review by the BCMR Medical Consultant and BCMR Psychiatric Consultant and we did not find the evidence provided, sufficient to overcome their assessment of the case.  Therefore, in the absence of evidence to the contrary, we find no basis to recommend granting 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-2014-01814 in Executive Session on 13 March 2018 under the provisions of AFI 36-2603:

	Panel Chair
	Member
	Member

The following documentary evidence was considered:

	Exhibit A.  DD Forms 149, dated 25 April 2014 and 
                 29 October 2014, w/atchs.
	Exhibit B.  Applicant's Master Personnel Records.
	Exhibit C.  Memorandum, BCMR Medical Consultant, dated 
                 8 May 2015.
	Exhibit D.  Letter, SAF/MRBR, dated 30 June 2015.
Exhibit E.  Letter, Applicant, dated 8 July 2015, w/atchs.
Exhibit F.  Memorandum, BMCR Psychiatric Advisor, dated 
            13 June 2017.  
Exhibit G.  Letter, AFBCMR, dated 27 July 2017.
Exhibit H.  Letter, Applicant, dated 26 August 2017, w/atchs.

Pursuant to paragraph 1 of AFI 36-2603 (Title 32 Code of Federal Regulations, Part 865.1), it is certified a quorum was present at the Board's review and deliberations regarding AFBCMR Docket Number BC-2014-01814, and the foregoing is a true and complete record of the Board's proceedings in the above entitled matter.