RECORD OF PROCEEDINGS
AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS

IN THE MATTER OF: 			DOCKET NUMBER: BC-2015-01367

						COUNSEL:  NONE

						HEARING DESIRED:  NO 

APPLICANT REQUESTS THAT:

He be reinstated to the grade of Staff Sergeant (E-5).

APPLICANT CONTENDS THAT:

He was demoted to the grade of senior airman (E-4) due to missing one hour of Physical Training (PT).

He developed a mental health condition due to the stress and mistreatment by his leadership.  Subsequently, he was reprised against for filing an Inspector General (IG) complaint for Fraud, Waste and Abuse, in accordance with AFI 90-301, IG Complaints Resolution.

In support of his request, the applicant provides a personal statement, copies of AF Form 931, Performance Feedback Worksheet (AB thru TSgt); AF Forms 910, Enlisted Performance Report (AB thru TSgt); letters of support, a Congressional Inquiry, letter from his mental health provider, email communiques’ and various other documents associated with his request. 

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

STATEMENT OF FACTS:

On 20 May 03, the applicant enlisted in the Regular Air Force.

On or about 13 Dec 10, the applicant was disrespectful in deportment and language toward a Senior Noncommissioned Officer (SNCO).  On or about 18 Dec 10, the applicant, without authority, absent himself from his place of duty, and did remain so until apprehended by security forces.  For this misconduct, he was given Nonjudicial Punishment (NJP) under Article 15, Uniform Code of Military Justice (UCMJ), reduction to the grade of senior airman (E-4), forfeiture of $300.00 pay per month for two months, and a reprimand.  The portion of the punishment which provided for forfeiture in pay was suspended until 27 Jun 11.

According to a Congressional Inquiry letter, dated 4 Nov 11, in Mar 11, the applicant submitted a fraud, waste and abuse complaint to the 8th Fighter Wing (8 FW)/IG office against another airmen.  The 8 FW/IG investigated the allegations and on 20 Apr 11, concluded there was no fraud, waste or abuse found.  

On 29 Mar 12 the applicant reported to work two hours late.  For this misconduct, he was given a Letter of Reprimand (LOR).

On 9 Apr 12, the applicant reported to work two hours late.  For this misconduct, he was given a Letter of Reprimand (LOR). 

On or about 20 Jul 12, the applicant without authority failed to go to his appointed place of duty.  For this misconduct, he was given NJP under Article 15, UCMJ, reduction to the grade of airman first class (E-3), and a reprimand.  

By undated letter, on 11, 12, 15 and 19 Oct 12, the applicant was seen for a non-emergency command-directed evaluation due to concerns regarding his overall adjustment to the military environment and recent behavior.  Subsequently, he was diagnosed by a clinical psychologist with Axis I: Alcohol Abuse; Adjustment Disorder with Disturbance of Emotions and Conduct; Axis II: Narcissistic Personality Disorder (with Histrionic Features); Axis III: Service member denied significant medical concerns; Axis IV: Occupational stress and loss of rank; and Axis V: Global Assessment of Functioning – 62 (current) out of 100 – moderate problems (work).   

On 19 Dec 12, the applicant failed the Alcohol and Drug Abuse Prevention and Treatment (ADAPT) program due to his unwillingness to fully engage in the treatment regimen.

The clinical psychologist noted that from a mental health perspective, the applicant’s primary diagnosis does not render him unfit for military service.  However, he does have a condition of such gravity and intensity as to impact his military functioning over a significant length of time. Also, it was noted the applicant’s condition renders him unable to adequately perform his military duties, including weapons bearing and deployment and warrants consideration for administrative separation.  The evaluation noted the applicant did not have any other mental health conditions that warrant proceeding through disability channels. 

On 8 Feb 13, the applicant was notified of his commander’s intent to recommend his discharge from the Air Force for Substance Abuse Treatment Failure; Misconduct: Minor Disciplinary Infractions, Conditions that Interfere with Military Service; Mental Disorders: Adjustment and Personality Disorders, Conditions that Interfere with Military Service under the provisions of AFI 36-3208, Administrative Separation of Airmen.  The primary reason being Adjustment Disorder.  

On 19 Feb 13, after consulting with legal counsel, the applicant submitted a conditional waiver to waive his right to an administrative discharge board hearing so long as he received no less than an honorable discharge.  

On 1 Mar 13, the applicant’s squadron commander recommended to the test wing commander that the applicant be discharged from the Air Force for Adjustment Disorder and receive an honorable discharge without the offer of probation or rehabilitation. Before recommending discharge, the commander noted the applicant had demonstrated an inability or unwillingness to adhere to Air Force standards and rules; had been diagnosed with multiple personality disorders; received two Article 15s with reduction in grade to senior airman and subsequently airman first class, and two LORs for misconduct.  Furthermore, the commander noted the applicant’s separation was in the best interest of the Air Force.  

On 1 Mar 13, the Deputy Staff Judge Advocate (SJA) reviewed the case and found it legally sufficient to support the basis for discharge and the squadron commander’s recommendation for an acceptance of the waiver and an honorable discharge.  However, JA nonconcurred in the squadron commander’s recommendation to accept the conditional waiver.  According to the SJA, both the clinical psychologist and Mental Health Flight commander agreed the applicant’s misconduct is not caused by his mental condition, but that he is using his condition as an excuse to act out.     

By undated letter, the test wing commander reviewed the case, along with the recommendations of the squadron commander and SJA and recommended to the Air Force Test Center commander (AFTC/CC) that the applicant’s conditional waiver be accepted and receive an honorable discharge without the offer of probation or rehabilitation.  

On 26 Mar 13, the AFTC/CC accepted the applicant’s conditional waiver and directed the applicant’s administrative discharge without the offer of probation or rehabilitation.  

On 11 Apr 13, the applicant was discharged in the grade of airman first class, with a narrative reason for separation of “Adjustment Disorder.”  He was credited with 9 years, 10 months and 22 days of active service.

On 10 Apr 13, DoDI 1332.38, Physical Disability Evaluation, dated 14 Nov 96,  was revised to include that a diagnosis of Chronic Adjustment Disorder is no longer considered a basis for administrative discharge.  Therefore, individuals with a diagnosis of Adjustment Disorder may now require an initial Review in Lieu Of (RILO) for consideration of a Medical Evaluation Board (MEB) if the condition meets the unfitting requirements as listed in AFI 48-123, Medical Examinations and Standards.  This change in the authority became effective for all MEBs 120 days after the date of the instruction.

AIR FORCE EVALUATION:

AFLOA/JAJM recommends denial indicating there is no clear injustice, error, or good cause sufficient to reverse the decisions of the applicant’s commanders in reducing him in grade from SSgt to SrA and then SrA to A1C.  Furthermore, the applicant’s case lacks merit and is untimely as it pertains to the NJP action in 2010.  

Though a previous IG complaint by the applicant against his former supervisor for fraudulent behavior regarding equipment inventory went unsubstantiated, the applicant asserts his first NJP action was a reprisal for his report of wrongdoing.  He cites to his solid duty performance as proof that his missteps were isolated incidents that did not require NJP.  In addition, despite the fact his second NJP action occurred at a different installation, the applicant asserts his reputation as a “snitch” followed him to the Continental United States (CONUS) and was a partial motivator for his leadership in fomenting his discharge from the service.  

Both NJP actions were subject to legal review by the local Office of the SJA advising the issuing commanders.  There is no reason to believe those reviews were inadequate, especially in light of the fact that the applicant admits to the underlying misconduct.  The commander and SJA advising on and reviewing the cases would have been in the best position to evaluate the evidence, weigh the applicant’s duty history, review his submitted matters, reach an appropriate finding as to guilt, and fashion a just punishment.  There is nothing in the record to suggest the alleged personal animus between the applicant and his former supervisor also existed between the applicant and his commanders.  In other words, a personal feud between the former supervisor and the applicant was not an apparent basis for the applicant’s commanders issuing him NJP action.  Furthermore, a review of the NJP actions revealed the applicant consulted counsel, elected to waive his right to a court-martial, and submitted written matters on both occasions.  

It is worth noting, the applicant was not discharged for misconduct, though he arguably met the discharge basis for misconduct in accordance with AFI 36-3208, but rather he was discharged for an “Adjustment Disorder” (mental health related basis) and received an honorable discharge.  In addition, the applicant admits to the misconduct that was cited in his two NJP actions.  It is impossible to know the extent to which the personality conflict between the applicant and his former supervisor led to more severe administrative action or harsher punishments, if at all.  However, the NJP issuing authority in each case is elevated to the level of a commander, who is impartial to any potential personality conflict.  

A complete copy of the AFLOA/JAJM evaluation is at Exhibit C.  

AFPC/DPSOE recommends denial of the applicant’s request for restoration of rank, based on JAJMs decision.  

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

APPLICANT'S REVIEW OF AIR FORCE EVALUATION:

Copies of the Air Force evaluations were forwarded to the applicant on 12 Nov 15, 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 granting the applicant relief by changing his record to reflect he underwent a Medical Evaluation Board and was found unfit by a Physical Evaluation Board, with a disability rating of 30 percent under the Veterans Affairs for Ratings Disability (VASRD) code 9440, and be permanently retired effective 15 Apr 12 [sic].

The Psychiatric Consultant’s role does not involve investigation of claims or review of legal proceedings, as the advisory provided by JAJM accomplished that, but rather consists of an analysis of the applicant’s behavioral health records and the provision of the advisory to the Board on the possible nexus between the events while on active duty and the mental health illness.  

The Psychiatric Consultant noted the applicant’s case file is deficient of many vital documents; however, based on the evidence provided, the first Article 15 was administered for missing PT and the second Article 15 was a result of being late for work.  The applicant contends all administrative actions against him were in retaliation of the report he made against his superior and that prior to his Permanent Change of Station (PCS) assignment to Korea he had a flawless military record.  However, the consultant was deprived of the applicant’s Enlisted Performance Reports (EPRs) prior to 2010 and therefore, cannot attest to that account, but given the lack of any administrative actions prior to 2010, and the number of impressive character statements provided by his former co-workers and supervisors, one can assume he enjoyed a successful military career from 2003 to 2010.   

The applicant has no records of any behavioral health problems prior to 2010.  Since one can conceive of many different reasons to explain the downward trajectory of the applicant’s career during the last three years of service, the consultant will refrain from guessing and instead will draw the Board members attention to the applicant’s medical/mental health records.  

The Psychiatrist Consultant would like to note that the Armed Forces Health Longitudinal Technology Application (ALHTA) behavioral notes are often short/abbreviated versions of the original records, and frequently the only documentation available for review, as in the applicant’s case.  Despite the limitations, after a meticulous review of the applicant’s chart, the consultant noticed some reasons for concern, and even, though, the applicant does not request review of his mental health condition, the consultant’s assessment of the treatment might help to direct the Board’s decision.  

In Dec 10, the applicant had his first encounter with the behavioral health provider (after his first Article 15) and continued in psychotherapy until his PCS assignment at the end of 2011.  The psychologist involved in the applicant’s care agreed with him and provided a memorandum stating that he had a “hostile work environment;” his mood and anxiety issues were in reaction to the work-related stressors; diagnosed him with an Adjustment Disorder, and recommended medication management, which was provided by the applicant’s Primary Care Manager (PCM).  

As the treatment time progressed the diagnoses of the Narcissistic Personality Disorder and Alcohol Abuse were added to the applicant’s chart, nonetheless, the initial diagnosis of an Adjustment Disorder was not changed and continued to be the primary Axis I disorder for three years, until his discharge from the military.  According to Diagnostic and Statistical Manual IV (DSMIV) an Adjustment Disorder is characterized by “Marked distress that is out of proportion to the severity or intensity of the stressor.”  Also, the DSMIV specifies the diagnosis can only be used in situations when “stress-related disturbances do not meet the criteria for another specific Axis I disorder.”  The consultant is unconvinced that in three years of treatment, given all the applicant’s complaints and challenges, he did not meet the criteria for another Axis I disorder.  In fact, at some point his psychiatrist noted he has “anxiety disorder.”  On 14 Aug 12, during his initial appointment with the Licensed Clinical Social Worker (LCSW), the applicant complained of poor sleep, low energy, poor concentration, anhedonia and “stressed” mood (which can be interpreted as depressed or anxious, but a psychiatric note from 11 May 12, clearly documents depressed mood).  This constellation of symptoms might fit the DSMIV criteria for Major Depressive Disorder.  

The Consultant would like the Board to recognize that she is in no position to provide a De Novo diagnosis for the applicant since she never personally evaluated him nor does she have the access to his full behavioral health chart, but merely highlights, that the full review of the applicant’s symptoms was not performed (or if performed is not available for this case review).  Furthermore, the applicant’s post-discharge medical records reveal his symptoms have not resolved since his discharge, as would be required for an Adjustment Disorder diagnosis, but rather he remains depressed and anxious.  His military treatment team had no ability to predict/see the future progression of his illness, but a more detailed psychiatric examination of the applicant at that time might have shined light on a deeper underlying psychopathology.  A possible missed diagnosis or diagnoses had a very important implication in the discharge proceedings.  The applicant was administratively separated for an Adjustment Disorder, which was considered to be a disqualifying condition, but not a condition eligible for a Medical Evaluation Board (MEB).  However, with the diagnosis of Depression or Anxiety he would have likely been referred for a MEB and if found “unfit” would get a medical retirement or medical discharge.    

An Adjustment Disorder has been for decades, listed in AF and Department of Defense (DoD) policies as a medical condition not considered a compensable disability by the military Disability Evaluation System (DES).  However, a recent revision of the DoD policy (10 Apr 13) acknowledges that an individual with a Chronic Adjustment Disorder renders the individual eligible for processing via a MEB, the Acute Adjustment Disorder (that is a diagnosis initially made based upon an identifiable stressor, usually lasting no more than six months) continues to be held as non-compensable and non-ratable by the military departments.  If one is to accept the diagnosis of an Adjustment Disorder by the military mental health specialists, it would be easy to determine that it lasted three years and by DSMIV criteria was chronic.  On 10 Apr 13, the new policy took effect and on 14 Apr 13 [sic], four days later the applicant was discharged, one can see that under the new policy he was eligible for an MEB for the diagnosis of a Chronic Adjustment Disorder.  While this does not represent a malicious act on the part of the command, but when the applicant’s discharge order was signed the policy was either not yet released or they were not aware of its existence.  

Specifically, addressing the applicant’s Adjustment Disorder, the military DES, established to maintain a fit and vital fighting force, can by law, under Title 10, United States Code (USC), 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.  Therefore, based upon the preponderance of evidence, the consultant opines had an MEB been conducted and referral was made for Physical Evaluation Board (PEB) review, the applicant’s Chronic Adjustment Disorder more likely than not, would have been found unfitting.  Under the Integrated DES, the PEB would have applied the ratings assigned by the Department of Veterans Affairs (DVA). However, since the DVA ratings were not available at the time of discharge, using the Veterans Affairs Schedule for Rating Disabilities (VASRD) diagnostic code 9440, the applicant’s level of disability would be consistent with the rating of 30 percent due to occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks. 

The Consultant acknowledges that an unintended procedural error had been made and the applicant should have gone through an MEB.  

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

APPLICANT'S REVIEW OF ADDITIONAL AIR FORCE EVALUATION:

A copy of the Air Force evaluation was forwarded to the applicant on 20 May 16, 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 regarding the applicant’s request to be reinstated to the grade of Staff Sergeant.  We took notice of the applicant’s complete submission in judging the merits of the case; however, we agree with the opinions and recommendations of AFLOA/JAJM and AFPC/DPSOE and adopt their rationale as the basis for our conclusion the applicant has not been the victim of an error or injustice.  While we note the recommendation of the AFBCMR Psychiatric Consultant to change the applicant’s record to reflect he underwent a MEB, was found unfit by a PEB with a disability rating of 30 percent under the Veterans Affairs for Ratings Disability (VASRD) code 9440, and be permanently retired effective 15 Apr 12 [sic], we disagree.  In this respect, the Board is of the opinion that this issue is separate and distinct from the applicant’s request and therefore, would require review and comment by the appropriate Air Force Office of Primary Responsibility should the applicant submit such a request to the Board.  Additionally, although the DoD revised its policy on 10 Apr 13 regarding individuals diagnosed with an Adjustment Disorder to require an initial RILO for possible MEB, this policy was not effective until Aug 13, four months after the applicant was discharged.  Therefore, the Board finds insufficient evidence of error or injustice and finds no basis to recommend granting the applicant’s requested relief.  

4.  The applicant alleges he has been the victim of reprisal and has not been afforded full protection under the Whistleblower Protection Act (10 USC § 1034).  However, based upon our own independent review, we determined the applicant has not established that the adverse actions he cites were the result of reprisal.  In reaching this determination, we note the applicant did not submit direct evidence, such as an Inspector General (IG) or Military Equal Opportunity (MEO) report to support his assertions.  Therefore, this cause does not fall within the Board’s authority to review the case under 10 USC § 1034.  In view of the above and in the absence of evidence to the contrary, we find no basis to recommend granting the relief sought in this application.   

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-2015-01367 in Executive Session on 13 and 28 Jul 16, under the provisions of AFI 36-2603:

	Panel Chair
	Member
	Member

The following documentary evidence pertaining to AFBCMR Docket Number BC-2015-01367 was considered:

	Exhibit A.  DD Form 149, dated 28 Dec 14, w/atchs.
	Exhibit B.  Applicant's Master Personnel Records.
	Exhibit C.  Memorandum, AFLOA/JAJM, dated 20 Aug 15.
	Exhibit D.  Memorandum, AFPC/DPSOE, 1 Oct 15.
	Exhibit E.  Letter, AFBCMR, dated 12 Nov 15.
	Exhibit F.  Memorandum, AFBCMR Psychiatric Advisor, 
       dated 12 May 16.
	Exhibit G.  Letter, AFBCMR, dated 20 May 16.