RECORD OF PROCEEDINGS
AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS

IN THE MATTER OF:	DOCKET NUMBER: BC-2014-03005 COUNSEL:	NONE
HEARING DESIRED:	NO

APPLICANT REQUESTS THAT:
His honorable discharge for personality disorders be changed to a medical discharge.

APPLICANT CONTENDS THAT:
His service connected disabilities are justification to change his discharge reason. After he returned from a deployment to Iraq, a psychiatrist recommended he be separated from the service. However, he states his disabilities prevented him from doing his military duties. He was given a discharge for failure to adapt but contends he served for over two years without causing trouble. He has been diagnosed with depression, PTSD, and Traumatic Brain Injury (TBI).

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

STATEMENT OF FACTS:
On 21 Nov 05, the applicant entered the Regular Air Force.
On 26 Nov 07, the applicant’s commander notified him that he was recommending him as the result of a mental health diagnosis of an adjustment disorder with depressed mood.

On 26 Nov 07, the applicant acknowledged receipt of the notification of discharge and was advised of his right to consult with legal counsel and to submit statements on his own behalf. The applicant sought counsel and did not submit any statements.

On 27 Nov 07, the applicant’s commander recommended him for discharge for conditions that interfere with military service: mental disorders-adjustment disorder.

On 3 Jan 07, the discharge authority approved the applicant’s administrative discharge under AFI 36-3208, Administrative Separation of Airmen, for mental disorders-adjustment disorder.

On 4 Dec 07, the applicant was furnished an honorable discharge, with a narrative reason of “Adjustment Disorder,” and was credited with 2 years and 14 days of active service.

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

AIR FORCE EVALUATION:
AFBCMR Clinical Mental Health Consultant recommends denial indicating there is no evidence of an error or an injustice. The applicant’s first interaction with Military Mental Health occurred in July 2006 when applicant was referred to Family Advocacy in a case of substantiated family maltreatment which he enacted upon his then spouse. He underwent divorce and was deployed to Iraq from February to September 2007. He again presented to Military Mental Health in October 2007. At that visit the applicant endorsed feelings of anger. He also stated he would like to be closer to his family in Ohio. He went on to engage in multiple visits, with continued complaints of irritability and dislike for the military. On 26 Oct 07, the applicant specifically denied having suffered any traumatic event while deployed. In a mental health note dated 7 Nov 07, the applicant went on to state that he had suffered “…poor mood since entering military.” Ultimately, the applicant was identified for administrative separation, with diagnosis of Adjustment Disorder (at that time, a non-compensable diagnosis) and was administratively discharged.

The applicant has gone on to seek treatment with the Department of Veterans Affairs (DVA). He has subsequently been granted service- connected disability for PTSD. Interestingly, in a DVA Compensation and Pension exam dated 1 Jul 09, the applicant endorsed a history resistance to authority in high school and a history of having received treatment for anger and depression as a teen. He also endorsed no fewer than 3 alcohol related charges and a history of experimenting with marijuana, cocaine  and steroids while in high school. During the same interview he asserted that he had been in the military only one month when he realized he had “made a mistake” in joining the military. He also has a history of poor compliance with his DVA prescribed treatment regimens.

The Clinical Mental Health Consultant finds no evidence of injustice or inequity in the records reviewed. The applicant’s service clinical diagnosis fell into a category of disorders not considered a disability by either the Military Department or the Department of Veterans Affairs (DVA). Consequently, he was not eligible for a medical discharge via Medical Evaluation Board (MEB) and Physical Evaluation Board (PEB), under AFI 36-3212, Physical Evaluation for Retention, Retirement, and Separation.  It

should be noted the applicant’s diagnosis at discharge from military service was quite different from that which was subsequently issued by the DVA, albeit with overlapping or shared clinical features at a given time. The applicant’s post-service diagnosis, PTSD, is a compensable mental condition. At the time of the applicant’s discharge from military service, adjustment disorder was considered unsuiting for continued service, not unfitting.  The diagnosis of adjustment disorder (chronic) became a compensable diagnosis only with the very recent advent of the Integrated Disability Evaluation System (DES).

With regards to the applicant’s request to replace his administrative discharge with a medical discharge, the Board is advised that claims based on a change between the service and post-service diagnosis are expected to continue to occur; particularly when the service diagnosis has been characterized as a non-compensable unsuiting condition and a post-service diagnosis results in compensation by the DVA; sometimes soon and sometimes many years after separation. Policies are established within the Department of Veterans Affairs to address diagnostic changes in the implicit effort to render the most appropriate rating decisions within this Agency.

Under 38 Code for Federal Regulations, effect of change of diagnosis, the following is provided: “The repercussion upon a current rating of service connection when change is made of a previously assigned diagnosis or etiology must be kept in mind. The aim should be the reconciliation and continuance of the diagnosis or etiology upon which service connection for the disability had been granted.  The relevant principle enunciated in
§4.125, entitled “Diagnosis of mental disorders,” should have careful attention in this connection. When any change  in evaluation is to be made, the rating agency should assure itself that there has been an actual change in the conditions, for better or worse, and not merely a difference in thoroughness of the examination or in use of descriptive terms.

This will not, of course, preclude the correction of erroneous ratings, nor will it preclude assignment of a rating in conformity with §4.7.” Section 4.125, Diagnosis of mental disorders, paragraph (b), reads: “If the diagnosis of a mental disorder is changed, the rating agency shall determine whether the new diagnosis represents progression of the prior diagnosis, correction of an error in the prior diagnosis, or development of a new and separate condition. If it is not clear from the available records what the change of diagnosis represents, the rating agency shall return the report to the examiner for a determination.” No evidence is presented that proves or suggests that the diagnosis issued to the applicant at the time of his military service was a diagnostic error.

Specifically, at the time of the applicant’s military service his pattern of behavior was classified among conditions not considered a compensable disability. The fact that the applicant’s underlying diagnosis has changed or evolved over time into a formal diagnosis of PTSD does not invalidate the accuracy of the assessment and conclusions reached at the time of the applicant’s final military disposition in 2007, which was based upon his observed pattern of behavior, complaints expressed by him, and multiple clinical assessments conducted during the period of military service.

Readdressing the applicant’s implicit desire for a medical separation/retirement, the military 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. The clinical reviewers at the time of the applicant’s service found no evidence of a disqualifying anxiety disorder (to include PTSD) that warranted an MEB and processing via a PEB, as a compensable disability under AFI 36-3212.

At the same time, operating under a different set of laws (Title 38, U.S.C.), with a different purpose, 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 passed since discharge. 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 conditions. The DVA is also empowered to conduct periodic reevaluations 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.

In summary, the Clinical Mental Health Advisor recommends denial of the applicant’s request for military medical retirement, as the applicant was appropriately diagnosed and dispositioned in accordance with regulatory guidance in place at the time.

A complete copy of the AFBCMR Clinical Mental Health Consultant evaluation is at Exhibit C.

AFPC/DPSOR recommends denial indicating there is no evidence of an error or an injustice with regards to changing the applicant’s Separation Program Designator (SPD) code, the narrative reason for separation and character of service.

The applicant’s commander recommended he receive an honorable discharge because the applicant was diagnosed by the Chief of the Medical Staff as having a condition as described in the Diagnostic and Statistical Manual of Mental Disorders (DSM-IV): Axis I: Adjustment Disorder with Depressed Mood. It was determined his condition was severe enough his ability to function in the military was significantly impaired and did not meet retention standards for continued military service. Further, the stated his condition was not amenable to hospitalization, treatment, transfer, disciplinary action, retraining, or reclassification within the military system. In addition, the report stated it was unlikely any effort to rehabilitate him would be successful. Finally, the report concluded the applicant was administratively unsuitable for duty and processing for immediate separation was recommended; as a result, discharge action was initiated. Therefore, the SPD code an narrative reason for separation are correct as indicated on the applicant’s DD Form 214, Certificate of Release or Discharge from Active Duty.

The character of service is also correct as indicated on the applicant’s DD Form 214. Although the applicant received a Letter of Reprimand on 29 Aug 06 for physical abuse of his spouse, which was mentioned in the commander’s notification memorandum, the commander determined the applicant’s overall service constituted an honorable characterization. The base separations authority approved and granted the honorable discharge. Therefore, the honorable character of service on the DD Form 214 is correct and in accordance with DoD and Air Force instructions.

It is recommended to deny the applicant’s requests due to an untimely filed application. It has been almost 8 years since the applicant’s discharge and he did not provide a valid reason for not filing within 3 years of discharge. Furthermore, based on the documentation on file in the master personnel records, the discharge was consistent with the procedural and substantive requirements of the discharge instruction and was within the discretion of the discharge authority. Insufficient relevant evidence was discoverer to identify an error or injustice in the processing of the applicant’s discharge.

A complete copy of the AFPC/DPSOR evaluation is at Exhibit D.

APPLICANT'S REVIEW OF AIR FORCE EVALUATION:
Copies of the Air Force evaluations were forwarded to  the applicant on 9 Oct 15 for review and comment within 30 days (Exhibit E). As of this date, no response has been received by this office.

FINDINGS AND CONCLUSIONS OF THE BOARD:
After careful consideration of applicant’s request and the available evidence of record, we find the application untimely. 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. Applicant has not shown a plausible reason for the delay in filing, and we are not persuaded that the record raises issues of error or injustice which require resolution on the merits. Thus, we cannot conclude it would be in the interest of justice to excuse the applicant’s failure to file in a timely manner.

THE BOARD DETERMINES THAT:
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-2014-03005 in Executive Session on 19 Nov 15 under the provisions of AFI 36-2603:

, Panel Chair
, Member
, Member
The following documentary evidence was considered:
Exhibit A.	DD Form 149, dated 25 Jun 14, w/atchs. Exhibit B.	Applicant's Master Personnel Records. Exhibit C.	Memorandum, SAF/MRBC, dated 5 Oct 15. Exhibit D.	Memorandum, AFPC/DPSOR, dated 7 Oct 15. Exhibit E.	Letter, SAF/MRBR, dated 9 Oct 15.