RECORD OF PROCEEDINGS AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS IN THE MATTER OF: DOCKET NUMBER: BC-2014-05035 COUNSEL: NONE HEARING DESIRED: NO APPLICANT REQUESTS THAT: His discharge should be changed to a medical retirement. APPLICANT CONTENDS THAT: He was not afforded due process upon discharge. The Department of Veteran’s Affairs (DVA) has rated him 50% disabled for low back pain, abdominal strain and hearing loss stemming from an injury in 1979. The record reflects the date of injury, diagnosis and treatment occurred while he was active duty stationed at Homestead AFB, Florida. The Air Force failed in its administrative discharge policy. Had he gone through a medical evaluation board, it would have been determined that he was eligible for medical disability. The applicant’s complete submission, with attachments, is at Exhibit A. STATEMENT OF FACTS: The applicant entered the Regular Air Force on 11 July 1978. On 7 February 1979, he was notified of his commander’s intent to discharge him from the Air Force after receiving a Certificate of Evaluation stating the applicant was diagnosed with a personality disorder. The applicant acknowledged his commanders intent. He also annotated that he did not desire retention in the Air Force. He requested military counsel and did not submit statements on his behalf. On 8 February 1979, the separation authority approved the discharge and directed the applicant be separated with an honorable discharge. The applicant was discharged on 9 February 1979 with an honorable discharge. He was credited with 6 months and 29 days of active duty service. On 21 October 1982, the Secretary of the Air Force Personnel Council (SAFPC) denied the applicant’s request to change his reenlistment code. SAFPC forwarded the request to the Air Force Board for Correction of Military Records (AFBCMR) for further consideration. On 15 November 1982, the AFBCMR indicted that no corrective action was warranted. 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: The BCMR Medical Consultant recommends denial. The applicant’s DD Form 214, Certificate of Discharge or Release from Active Duty, indicates the applicant entered a period of active service on 11 July 1978 and was discharged on 9 February 1979 with an honorable character of service A review of administrative documents reflect the applicant’s Headquarters Section Commander sent a memo to the Commander recommending the applicant’s discharge for the following reasons: (1) Record of Individual Counseling (RIC), dated 1 November 1978, for improperly performing prescribed duties, (2) RIC, dated 6 November 1978, for reporting for duty out of uniform, and (3) RIC, dated 20 November 1978, for refusing to perform prescribed duties. The case file also contains a Letter of Reprimand issued to the applicant, dated 27 November 1978, following an investigation which disclosed that the applicant was “remiss in the performance of his duties during the period 6 November 1978 through 20 November 1978.” The letter further reads, “Specific instances of your remissness were you violated of AFR 35-10 by reporting to work on 6 November 1978 without wearing your hat and your failure to perform duties assigned on 20 November 1978, also, failure to obey an order to report to your supervisor’s office on 20 November 1978.” On 27 November 1978, the applicant was notified of his placement on the Control Roster. With regard to the applicant’s medical conditions, a Certificate of Psychiatric Evaluation, conducted at USAF Hospital, Homestead AFB, Florida, shows the applicant was diagnosed with a “Passive Aggressive Personality Disorder, manifested by obstructionism, pouting, direct refusal to comply with evaluation, and inattention to duties.” On 13 December 1978, the applicant complained of middle abdominal pain for 2 weeks and nausea. On 23 November, he injured his back lifting things out of car trunk and 3 to 4 days later began to hurt around his umbilicus. On examination, the applicant demonstrated tenderness of the rectus abdominis muscles. The clinical assessment was acute strain rectus abdominis muscles. The applicant was advised to apply moist heat locally, to avoid heavy lifting and to return for recheck as necessary. 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 time of separation and not based on future progression of disease or injury. Department of Defense Instruction (DoDI) 1332.32, Physical Disability Evaluation, Enclosure 3, Part 3, Standards For Determining Unfitness Due To Physical Disability Or Medical Disqualification, paragraph E3.P3.2.1, and likely earlier versions, reads:” A Service member shall be considered unfit when the evidence establishes that the member, due to physical disability, is 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.” Although the previous instruction may have since been set aside, the aforementioned policy statement is retained and includes two additional criteria for determining unfitness under a more recent publication, DoDI 1332.18, Disability Evaluation System, August 5, 2014, which read, “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. Thus, the fact that the applicant’s lumbar spine condition(s) appears to have progressed over time and now presents an obstacle to his employability is not reflective of its impact upon his retainability nor determinative of his fitness to serve at the time of release from military service. With respect to evidentiary standard for determining unfitness because of disability, under the new DoDI 1332.18, “The Secretary of the Military Department concerned must cite objective evidence in the record, as distinguished from personal opinion, speculation, or conjecture, to determine a Service member is unfit because of disability.” Additionally, “With the exception of presumption of fitness cases, the Secretary of the Military Department concerned will determine fitness or unfitness for military service on the basis of the preponderance of the objective evidence in the record.” Based upon the objective service medical evidence, there was no indication that the applicant’s muscles strains would have precluded continued military service, but not for his administrative discharge; as would be otherwise noted by enduring profile restrictions imposed rendering him non- worldwide qualified due to any medical condition. Additionally, the applicant’s twice diagnosed Personality Disorder was not an individually compensable medical condition under either Department of Defense or, then, Veterans Administration policies; albeit now possibly associated with the emergence of a compensable Axis I mental disorder through the Department of Veterans Affairs. Moreover, even if the applicant was processed through the Disability Evaluation System for an unfitting musculoskeletal condition, under AFM 35-4, that means he would have been concurrently the subject of the administrative discharge, under AFM 39-10, and a medical discharge action. Under these circumstances, the case would then require review by the Secretary of the Air Force Personnel Council (SAFPC), which would determine the appropriate basis [administrative versus medical] for discharge. Finding no causal or mitigating relationship between the reason for the applicant’s administrative discharge and a lumbosacral spine or abdominal condition, it is more likely than not that the SAFPC would have executed the administrative discharge. The applicant is advised that unlike the Military Department, the Department of Veterans Affairs, operating under a different set of laws (Title 38, U.S.C.) with a different purpose, 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, the narrative reason for separation, or the length of time transpired since 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 one or more medical conditions that were service-connected, but not proven militarily unfitting at the time of release from military service. 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; as has occurred in the applicant’s case. The Medical Consultant opines the applicant has not met the burden of proof of an error or injustice that warrants the desired change of the record. The complete BCMR Medical Consultant’s evaluation is at Exhibit C. APPLICANT'S REVIEW OF AIR FORCE EVALUATION: The applicant disagrees with the BCMR Medical Consultant’s assessment and feels the advisory inaccurately describes the alleged accusations of his misconduct. The advisory does not mention the inappropriate sexual misconduct of his civilian supervisor. This misconduct still haunts him. When he reported that misconduct to a master sergeant, he was sent to see a psychologist and the process of removing him began. The opinion, does show his service connected injuries occurred while performing his duties. It is his opinion that after his injury occurred, he was unable to perform his duties and should have been found unfit. He should have received a medical evaluation for his fitness for duty, especially after sustaining a back injury. The Air Force was obligated to examine him after his injury. It could have easily been determined that he was unable to perform the duties of a recreational specialist. The applicant’s complete responses are attached at Exhibits E and F. THE BOARD CONCLUDES THAT: After careful consideration of applicant’s request and the available evidence of record, we find the application untimely. The 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. The 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-2014-05035 in Executive Session on 12 November 2015 under the provisions of AFI 36-2603: The following documentary evidence was considered: Exhibit A. DD Form 149, dated 8 Dec 14, w/atchs. Exhibit B. Applicant's Master Personnel Records. Exhibit C. Letter, BCMR Med Consultant, dated 20 Aug 15. Exhibit D. Letter, SAF/MRBR, dated 9 Sep 15. Exhibit E. Letter, Applicant’s Response, dated 1 Oct 15. Exhibit F. Letter, Applicant’s Response, dated 9 Oct 15. 1 2