RECORD OF PROCEEDINGS AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS IN THE MATTER OF: DOCKET NUMBER: BC-2014-05003 COUNSEL: NONE HEARING DESIRED: YES APPLICANT REQUESTS THAT: He be granted a medical retirement. He be reimbursed for the leave he sold in 2007. APPLICANT CONTENDS THAT: In 2011, he was placed on a medical profile. In January 2014, he was honorably discharged from the Air Force Reserve. He waited three years with no job or pay and was denied a medical discharge. Due to his experiences in the military and his deployments, he received mental health care for depression, concentration, Post- Traumatic Stress Disorder (PTSD) and was prescribed medication. The squadron doctor advised him that taking the medication was a dischargeable offense. He would be placed on a profile and not be allowed to perform his Reserve duties. He was evaluated by the base psychologist/psychiatrist to determine if he would be medically discharged. He was advised that a Medical Evaluation Board (MEB) would consider him for a medical discharge and to wait for the paperwork. His chain of command later advised him that his case was being held up by the medical squadron. However, the medical squadron stated they had no record of a MEB or medical discharge. His paperwork was lost and he had no proof of his military service beyond 2007. He is currently being treated for depression, PTSD, sleep apnea and Attention Deficit and Hyperactive Disorder (ADHD) by the Department of Veterans Affairs (DVA). This has been a big help but he cannot get disability pay until a medical discharge is granted. In 2007 he sold leave when he separated from active duty. In 2009, he received a letter while he was deployed to Iraq stating money was being taken from him for some unspecified reason. He did not receive the letter until he returned from his deployment and at which point, money was being taken out of his pay each month. The Reserve and active duty finance offices did not know the reason for the debt. After more research, he deduced he had been audited from when his leave was sold in 2007. He believes the Reserve auditor was confused as reservists generally do not sell leave. This was not a mistake on his end and a significant portion of his pay was taken without any possible way for him to have addressed it. Having the pay for his leave sold would help with his current situation. The applicant’s complete submission, with attachments, is at Exhibit A. STATEMENT OF FACTS: On 26 March 2004, the applicant entered the Regular Air Force and was honorably released from active duty on 21 November 2007. The applicant’s request for assignment into the Air Force Reserve was approved per the AF Form 1288, Application for Ready Reserve Assignment, dated 12 September 2007. The applicant entered a subsequent period of active duty on 23 April 2009 and was released from active duty on 29 September 2009 with a narrative reason for separation of “Completion of Required Active Service.” He was credited with five months and seven days of active duty service this period and three years, four months and five days of prior active duty service. According to Reserve Order A-77, dated 15 January 2014, the applicant was honorably discharged from the Air Force Reserve effective 21 November 2013 in accordance with AFI 36-3209, Separation and Retirement Procedures for Air National Guard and Air Force Reserve Members, paragraph 3.12.1, Expiration of enlistment or completion of Military Service Obligation (MSO). 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, D and F. AIR FORCE EVALUATION: AFRC/SGP recommends denial of the applicant’s request for a medical retirement. In the mental health notes provided by two separate providers, the applicant does not meet the criteria for the diagnosis of PTSD and this diagnosis is specifically ruled out in one of the notes. Additionally, the applicant reports a history of depression, Attention Deficit Disorder (ADD) symptoms and anxiety at age 10 to 12 years old. From the notes provided, his reports of depressive mental health symptoms were associated with ending a relationship with roommate issues but he did not report the symptoms during his period of service. Based on the information provided, the applicant does not overcome a presumption of fitness at the time of discharge. A complete copy of the AFRC/SGP evaluation is at Exhibit C. AFRC/FM recommends denial of the applicant’s request for repayment of the debt taken from his military pay. The applicant’s pay account reflects the debt came from his Regular active duty pay. The debt went to out-of-service in February/March 2009 and was released for collection in June 2009. The debt posted to his Reserve component pay record on 14 August 2009 and his August 2009 Leave and Earnings Statement (LES) reflects notice of the debt posting to the pay record. The debt collection started in December 2009; the debt amount posted was $1,459.72, with a $15.00 penalty and $7.42 in interest. It was a valid debt and the debt computation reflects a reconciliation of his pay when he separated in November 2007 and notes a partial payment the applicant received was an overpayment. The debt was not for leave sold back. A complete copy of the AFRC/FM evaluation is at Exhibit D. APPLICANT'S REVIEW OF AIR FORCE EVALUATION: Copies of the Air Force evaluations were forwarded to the applicant on 17 September 2015 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: The BCMR Psychiatric Consultant recommends denial of the applicant’s request for a medical retirement. Since the applicant was not in a duty status during the discovery/disclosure of his symptoms, he was not eligible for a MEB for a compensable disorder, but could be reviewed by the PEB solely for a fitness determination. On 8 September 2011, the applicant was asked to provide any medical documentation from his private health care provider. The applicant was given 60 days to respond and given the lack of such documentation in the case, one would have to assume the applicant never responded. He was assessed by a DOD psychiatrist on 27 February 2012 for World-wide Qualification (WWQ) and was found to be not WWQ due to depression and anxiety. The psychiatrist recommended treatment through the DVA or other medical facility and that prognosis for recovery was good. On 26 March 2013, the applicant elected to waive his rights for an Informal Physical Evaluation Board (IPEB). He also signed the form stating he understood that he would only be eligible for retention in the Air Force Reserve in a restricted status if found fit. The Consultant is surprised at the applicant’s statement that he was told by the psychiatrist that he would be getting an MEB. There is no reference to the MEB in the psychiatric note and the opposite was stated. The psychiatric note states, “If he were to participate in psychotherapy, there is a chance his symptoms could resolve to the point of him being WWQ.” Even though there is agreement that the applicant’s anxiety has a nexus with his previous military duty, he does not qualify for a MEB and medical retirement per DODI 1332.18, Disability Evaluation System, Prior Service Impairment, which states “Any medical condition incurred or aggravated during one period of active service or authorized training in any of the Military Services that recurs, is aggravated or otherwise causes the member to be unfit should be considered incurred in the LOD, provided the origin of such impairment or its current state is not due to the member’s misconduct or willful negligence, or progressed to unfitness as the result of intervening events when the member was not in a duty status. In other words, even if he incurred the condition during his 2006 and 2009 deployments, he reported his symptoms when he was not in a duty status and it was not a proximate result of service at the time of disqualification. The AFI 36-2910, Line of Duty (Misconduct) Determination, paragraph 1.10.2.2.2, known as the “Eight Year Rule” (per 10 U.S.C § 1207a) also does not apply. This requirement states an illness, injury or disease that Exists Prior to Service (EPTS) may be deemed to have occurred in a duty status for the purpose of determining disability separation or retirement by a PEB if the member has at least eight years of total active service and was on active duty orders specifying a period of greater than 30 days at the time the condition became unfitting. Despite the applicant’s ineligibility for military benefits, he is still eligible to file for service connected disability compensation with the DVA which is authorized under 38 U.S.C. to offer compensation for any medical condition with a nexus with military service, without regard of its proven impact upon a former Service member’s fitness to serve, the narrative reason for release or the duration of time passed since separation. This is the reason why an individual may be released from Service for one reason and later receive a compensation rating for one or more medical conditions that were not considered militarily unfitting or eligible for military disability processing at the time of military Service. A complete copy of the BCMR Psychiatric Consultant’s evaluation is at Exhibit F. APPLICANT'S REVIEW OF AIR FORCE EVALUATION: A copy of the BCMR Psychiatric Consultant’s evaluation was forwarded to the applicant on 26 April 2016 for review and comment within 30 days (Exhibit G). 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 to warrant a medical discharge or retirement. We took notice of the applicant's complete submission in judging the merits of the case and do not find that it supports a determination that the applicant was improperly separated. While the applicant essentially contends he was separated without an MEB, he has not provided substantial evidence showing that he had an in the Line of Duty (LOD) unfitting medical condition that would have required his processing through the Military Disability Evaluation System, a prerequisite to a medical discharge. Based on the preponderance of the evidence, it appears the applicant’s discharge from the Air Force Reserve was properly adjudicated and we found no evidence which would lead us to believe that his separation was in error or contrary to the governing Air Force instructions. Therefore, we agree with the opinions and recommendations of the Air Force OPR and the BCMR Psychiatric Consultant that the applicant has failed to sustain his burden of proof that he is the victim of an error or injustice. 4. Insufficient relevant evidence has been presented to demonstrate the existence of an error or injustice with respect to the applicant’s request he be reimbursed for the leave sold in 2007 at the time of his separation from active duty. After a thorough review of the evidence of record, a majority of the Board agrees with the opinion and recommendation of the Air Force OPR and adopts the rationale expressed as the basis for their conclusion that the applicant has not sustained his burden of proof that he has been the victim of an error or injustice. Therefore, in the absence of evidence to the contrary, the Board majority finds no basis to recommend granting the requested relief. 5. 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-2014-05003 in Executive Session on 29 October 2015 and 26 May 2016 under the provisions of AFI 36-2603: , Panel Chair , Member , Member The Board recommended denial of the applicant’s request for a medical discharge. By majority vote, the Board recommended denial of the applicant’s request to be reimbursed for the leave he sold in 2007. ------ voted to grant this portion of the application but did not desire to submit a minority report. The following documentary evidence was considered: Exhibit A. DD Form 149, dated 6 November 2014, w/atchs. Exhibit B. Applicant's Master Personnel Records. Exhibit C. Memorandum, AFRC/SGP, dated 19 February 2015. Exhibit D. Memorandum, AFRC/FM, dated 19 February 2015. Exhibit E. Letter, SAF/MRBR, dated 17 September 2015. Exhibit F. Memorandum, BCMR Psychiatric Consultant, dated 16 April 2016. Exhibit G. Letter, AFBCMR, dated 26 April 2016. 1 2