RECORD OF PROCEEDINGS
AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS

IN THE MATTER OF:			DOCKET NUMBER:  BC-2015-02432
		
 						COUNSEL:  NONE

						HEARING DESIRED:  YES

APPLICANT REQUESTS THAT:

Her records be corrected based on being the victim of a case of abuse of authority and reprisal pursuant to DODD 7050.06, Military Whistleblower Protection, dated 23 July 2007, and 10 U.S.C. § 1034 to reflect the following:

	She was awarded a Meritorious Service Medal (MSM).

	The Medical Evaluation Board (MEB) recommendation be removed from consideration by the Informal and Formal Physical Evaluation Boards (IPEB/FPEB).    

Her permanent retirement with a disability rating of 10 percent be overturned.  

She be returned to active duty in the grade of colonel        (O-6).

APPLICANT CONTENDS THAT:

She was presented a MSM at her last duty station; however, it is not her records.

Her promotion was withheld as retaliation per the Whistleblower’s Act criterion.  She is simultaneously submitting her package to the DOD IG.

She requests a complete review and investigation.  The medical provider indicated her social industrial impairment as “none” which reflects no job impairment.  The improper evaluation was a part of the MEB’s decision.   She provides evidence of fraud, waste, abuse and reprisal resulting in an improper evaluation, prohibited personnel actions based on protected communications, an unjust medical retirement, health care fraud, danger to public health and safety of members assigned to Maxwell AFB, AL.  

The medical retirement recommendation is unjust and her promotion was withheld as retaliation under the Military Whistleblower Protection Act.  The promotion issue is beyond this time period; however, it is connected with the Whistleblower actions.  She has submitted a complaint to the DOD IG office.  The medical evaluation should be reviewed/overturned.  Depending on the DOD IG review of the retirement decision, she should be returned to active duty in the grade of colonel (O-6).  Whatever diagnosis the military believes an individual has should not be the only thing considered when making a decision about whether or not one can continue to remain in the military.  There are examples of individuals who were able to return to active duty; she knows of an individual who was able to remain in the service after losing a limb.  The focus must be on the member’s ability to contribute to the mission.  

The impartial review physician recommended a further evaluation into the medical conditions that may have caused the diagnosis.   However, this did not occur.  Her potassium level which was noted to be low on several occasions could in fact have caused these symptoms; however, the medical provider did not agree even though there is literature to support this.  Her medical records reveal no shyness associated with seeking care when needed.  She is a mental health provider, licensed clinical social worker, but this is not a self-diagnosis.   

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

STATEMENT OF FACTS:

On 5 July 1994, the applicant entered the Regular Air Force.  

In an undated letter, the applicant was notified by her commander of an emergency command directed mental health evaluation.   Before making the referral, her commander consulted with her mental health care provider who concurred an emergency mental health evaluation was warranted and appropriate.

AF Form 469, Duty Limiting Condition Report, dated 14 December 2010, states the applicant was undergoing an MEB to determine medical fitness for continued worldwide duty and retention and was placed on duty and mobility restrictions effective 16 June 2010 through 13 March 2011.   

According to the Narrative Summary (NARSUM) dated 16 December 2010, the applicant was hospitalized from 16 June to 9 July 2010.  The NARSUM was prepared pursuant to a psychotic episode requiring involuntary psychiatric hospitalization and treatment.  Her commander requested an official determination of her fitness for continued military service.  The NARSUM included acute onset of psychosis, somatic delusions requiring involuntary psychiatric hospitalization and intensive medical treatment.  It noted she had no psychosocial or occupational limitations stemming from the severe episode of acute psychosis which lasted for approximately six weeks.  She had performed satisfactorily in her light duty status.  It was recommended that worldwide assignment availability be limited and deployments to austere environments over the next year be avoided to ensure adequate recovery and observation although the applicant was asymptomatic at the time.  

In a letter dated 19 January 2011, the applicant stated she was not experiencing any symptoms that would meet the criteria for the diagnosis which was prompting the PEB.  She was also seeking a second opinion which would be provided to the PEB.  

Per the AF IMT 618, Medical Board Report, dated 27 January 2011, a MEB was convened and recommended the applicant be referred to the IPEB for condition of Psychotic Disorder, Not Otherwise Specified (NOS).  

According to the AF Form 356, Findings and Recommended Disposition of Physical Evaluation Board, dated 23 February 2011, the IPEB recommended the applicant be permanently retired with compensable disability rating of 30 percent for unfitting condition of psychosis, in partial remission.  The IPEB noted the applicant’s medical condition, which was not likely to change over the next several years, prevents her from reasonably performing the duties of her office, grade, rank or rating.  Her commander noted she is “highly effective” in her current capacity of working on a project-by-project basis so she does appear to have occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupations tasks (although generally functioning).   She does not appear to have occupational and social impairment with reduced reliability and productivity.  

On 14 March 2011, the applicant signed AF Form 1180, Action on Physical Evaluation Board Findings and Recommended Disposition, indicating she disagreed with the findings of the IPEB and requested her case be referred to the FPEB.  

According to the AF Form 356, dated 12 April 2011, the FPEB recommended the applicant be retired with a compensable disability rating of 10 percent for unfitting condition of psychosis, in partial remission.  The FPEB noted that the applicant contends she is fit for duty and should be returned for duty; however, the board noted she has an Axis I diagnosis of Psychotic Disorder NOS, Recurrent, and Moderate.  Her treating psychiatrist continues to offer her antipsychotic medication even though she refuses all psychiatric intervention.  On 20 December 2010, her treating psychiatrist stated her impairment was marked and her prognosis was poor without treatment using antipsychotic medications.  He noted on 28 January 2011, she was in partial remission and that acute exacerbations were likely to occur with elevations of psychosocial stressors.  The FPEB determined there was evidence of occupational and social impairment due to mild or transient symptoms which decrease work efficiency and ability to perform occupational tasks only during periods of significant stress.  

On 13 April 2011, the applicant signed AF Form 1180 indicating she disagreed with the findings and recommended disposition of the FPEB and requested her case be referred to the Secretary of the Air Force Personnel Council (SAFPC) for review and final decision.  

In a letter dated 3 May 2011, AFPC/DPSDD requested the SAFPC review the applicant’s case per her disagreement with the recommendations of the FPEB and her request that she be found fit and returned to duty.   

According to the undated Impartial Review, the Surgeon General Chair to Air University non-concurred with the NARSUM and MEB package stating they did not adequately reflect the complete spectrum of the injuries or illness of the applicant.  The NARSUM failed to include reported possible olfactory/auditory hallucinations a year before her psychotic break which could suggest her problem is of longer duration than previously recognized.  Although sometimes a specific cause for psychosis cannot be elucidated, the NARSUM never states organic causes were ruled out, specifically, hyperparathyroidism which can cause psychiatric symptoms.   The applicant also carries a diagnosis of depression and Post-traumatic Stress Disorder (PTSD) as resolved.  The NARSUM also indicates she had not been seen by an endocrinologist or what the plan was for in dealing with her endocrine problems.  

On 7 February 2012, SAFPC directed the applicant be permanently retired with a disability rating of 10 percent under the provisions of 10 U.S.C. § 1201.  The board considered the applicant’s contention for return to duty; however, following a review of all facts and evidence, the board concurred with the disposition recommended by the previous board to permanently retire the applicant with a disability rating of 10 percent.  The board’s rationale include that while the applicant disagrees with the diagnosis of psychosis and denies the events documented in the MEB even occurred, altered insight into one’s condition is a characteristic of psychosis.  While she continues to deny the events took place, those events were witnessed by numerous mental health staff as well as non-medical personnel.  In conflict with the providers, both civilian and military, she refuses the need for medication.  Although she correctly states her psychosis is mostly in remission, the military psychiatrist and commander of the mental health flight who authored the MEB concluded that it is the sporadic and spontaneous nature of relapse which clearly makes her unfit for duty.  The MEB NARSUM states her military impairment as “moderate.”  A feature of this illness is that patients commonly do not recognize their own pathology, in which disorganized content, thought, poor insight and poor judgment are characteristic.  The letter also states the board is required by law to rate a disability using criteria outlined in the Veterans Administration Schedule for Rating Disabilities (VASRD).  In accordance with paragraph 4.130, the schedule for rating mental disorders, the VASRD rates psychiatric conditions partially on the basis of the patient’s ability to function.  In the applicant’s case, her GAF score (Axis V) of 80 reveals one measure of her level of function.  Also her MEB notes her “social and industrial impairment” as “none.”  Another factor in evaluating mental disorders in accordance with the VASRD, paragraph 4.126, is the frequency, severity and duration of symptoms and the length of periods of remissions.  Despite the disabling effect of her episodes, her symptoms are infrequent and her length of remissions are consideration factors.  The VASRD rating of 10 percent under code 9210 best applies in this case.  

The applicant was retired in the grade of lieutenant colonel      (O-5) effective 28 April 2012 for permanent disability with a compensable percentage for physical disability of 10 percent per Special Order ACD-01280 dated 10 February 2012,.  She was credited with 24 years, 5 months and 17 days of active duty service.  

In an e-mail dated 25 June 2015, the DOD IG advised the DOD IG Hotline received correspondence from the applicant and that the matter was currently under review.  In a subsequent e-mail dated 11 February 2016, the DOD IG advised an investigation was not conducted and the case was closed because the complaint was untimely.  

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

AIR FORCE EVALUATION:

AFPC/DPFDD recommends denial of the applicant’s requests.   The applicant contends her MSM was not made part of her MEB and her medical findings were improperly evaluated.  The applicant was referred to the IPEB for physical disability in January 2011.  She was found unfit by the IPEB with a recommendation for permanent retirement with compensable rating of 30 percent for psychosis in partial remission.  The applicant non-concurred and presented her appeal to the FPEB in April 2011.  The applicant was found unfit by the FPEB and recommended she be permanently retired with compensable rating of 10 percent.  The applicant non-concurred and appealed to SAFPC.  On 7 February 2012, SAFPC rendered a decision of unfit and permanent retirement with compensable rating of 10 percent.  Additionally, awards and decorations, such as a MSM, have no true bearing on the medical determination outcome.  A medical board determination is solely made on the medical evidence found in the medical treatment records for the condition(s) rendering the member unfit.

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

The BCMR Psychiatric Consultant finds sufficient evidence to warrant a permanent retirement or placement on the Temporary Disability Retired List (TDRL) due to Psychotic Disorder, rated at least at 30 percent under the VASRD, code 9210, effective on her established date of separation.  The applicant is also encouraged to seek an evaluation at the Department of Veterans Affairs (DVA).  The Psychiatric Consultant recognizes a diagnostic and procedural error was made.  The PEB and SAFPC did not have sufficient information to make a final rating determination.  Collectively, taking into account the multilayered presentation of the applicant’s condition at the time of her discharge, her social and industrial impairment was at a minimum “definite” and possibly “considerable.”  However, given the paucity of a reliable estimate of her functional level, 30 percent disability at the time of discharge would be most appropriate.

The Board has two options for disposition of this case: (1) The applicant can be permanently retired due to psychotic disorder, rated at least 30 percent under VASRD, code 9210 effective her established date of separation; or (2) The Board can choose to place the applicant at the time of her discharge on TDRL due to Psychotic Disorder, rated at least 30 percent under VASRD code 9210 effective her established date of separation; with future re-examination, to determine the degree of incapacity.  Her condition appears to meet the requirements for TDRL which is defined as “Service members found to be unfit for performance of military duty by reason of physical/mental disability which may be permanent, but which has not sufficiently stabilized, or in this case an unknown current level of impairment, to permit an accurate assessment of a permanent degree of disability.”  Precautions have to be made in assessing the applicant since she is highly likely to deny any symptoms.  The results of the evaluations should be made available to officials within the Air Force Disability office for a final rating decision and disposition within the Integrated Disability Evaluation System (IDES).  

The first important detail of this case is the evasiveness of the applicant, her lack of any insight into her mental illness and persistent denial of any psychiatric problems even at the times of florid psychosis.  The presentation is not very unusual for patients with mental illness.  The applicant has demonstrated on multiple occasions she is an unreliable historian and the assessment of her condition cannot be made solely on her report.  However, this is exactly what has been done by her psychiatrists during her last six months of service and therefore the assessment of her social/industrial impairment and GAF determination are invalid and cannot be used for her rating determination.  Per the Diagnostic and Statistical Manual of Mental Disorders (DSM IV), GAF, or Axis V, is a reflection of the evaluating clinician’s judgment of a patient’s overall level of functioning.  A 90 to 100 range is indicative of “superior functioning” and is very difficult to attain.  The applicant’s GAF score constantly fluctuated between the 40’s and 80’s which is indicative of the inaccuracy of the assessments.   Information from the VA would be of great assistance; however, there is no evidence she has ever been seen at the VA.  This fact supports the suspicion she remains paranoid and suspicious.  

The Psychiatric Consultant carefully reviewed the applicant’s outpatient mental health records and it is highly likely she has developed a late onset schizophrenia or bipolar disorder with manic episode.  Her treating psychiatrists contemplated both conditions but never committed to a definite diagnosis.  Even though her Traumatic Brain Injury (TBI) was forgotten following the development of psychotic symptoms, it is a very strong risk factor for development of psychiatric illness.  The illnesses most commonly associated with TBI being depression and anxiety; however, the risk for development of mania and schizophrenia increases as well.  The description of post-traumatic psychosis is consistent with the applicant’s presentation.  Furthermore, the applicant has a family history of schizophrenia (her brother) which makes her more vulnerable for the development of post-TBI psychosis.

The applicant had a significant increase of medical visits following her return from deployment at the end of 2008 and the beginning of 2009.  She was noted to have endocrine abnormalities and was supposed to be evaluated by an endocrinologist; however, the record is not clear if it was accomplished.  The same applies to the MRI of the brain, which was planned but never obtained.  The applicant was also diagnosed with a low potassium level; however, there was no evidence of an appropriate work up to evaluate the underlying reason for the electrolyte abnormality.  In June 2009, her chain of command expressed concerns about her psychological health and requested a commander directed mental health evaluation.  In July 2009, after the applicant’s visit to the emergency room for chest pain, her primary care provider became concerned with her distressed appearance and referred her to mental health for treatment of her mood, sleep and anxiety symptoms.  During her intake appointment, the applicant reported a significant amount of distress since her return from deployment.  This same month she was diagnosed with PTSD secondary to her traumatic experience during deployment.  She was subsequently started on an antidepressant and placed on profile due to her mental health issues.  On 28 July 2009, she was seen by a psychiatrist for an emergency evaluation due to inappropriate behavior at the office including “singing out loud.”  During the meeting she reported her mental health issues had mostly resolved.  However, the psychiatrist noted her behavior was suggestive of an acute manic/hypomanic episode.  She was seen for a follow-up a week later and at that time denied she had any serious mental health concerns.

For the next few months, the only symptom remaining was the phantom smell of smoke.  Her psychiatrist suspected that this symptom might be a sign of underlying epileptic brain activity.  Therefore, in August 2009, she was referred to a neurologist for evaluation of possible TBI and epilepsy.  Otherwise she continued to demonstrate lack of any concerning psychiatric symptoms even after discontinuing her medications in September 2009.  In October 2009, her profile was removed and her mental health illness was deemed “completely resolved.”  However, in November 2009 her psychiatrist was contacted by the applicant’s command with concern about her behavior.  The record does not reveal any additional evaluations and the applicant continued to be in recovery.  In 2009, the applicant’s psychiatrist was interested in evaluating the applicant for a possible seizure disorder.  Seizure disorders are known to be associated with both TBI and psychosis.  Nonetheless, the neurologist who assessed her in 2010 did not follow-up on the request for an EEG.  Eventually her psychiatrist abandoned the idea of the seizure disorder and it was never mentioned again.  The applicant received an evaluation from the neurologist and underwent neuropsychological testing in the beginning of 2010.  It was evident she suffered from mild concussions in 2008.  However, both the neuropsychologist and neurologist concluded her cognitive issues were more likely related to her anxiety and depression and were not secondary to TBI.  She was relatively stable until June 2010 when her illness quickly spiraled out of control.  She was admitted to a civilian hospital on 16 June 2010 for acute psychosis and on 25 June 2010 she was transferred to Fort Benning for continued treatment.  Prior to her hospitalization, she acted erratically, displayed delusional beliefs, hallucinated, conversed to people who were not there, was belligerent at work, left without permission and attempted to run over her commander.  In the hospital she denied any psychotic symptoms and demanded to be discharged.  She refused treatment, would not communicate with the treatment team and attempted to escape from the unit.  Furthermore, she refused to eat and eventually a nasogastric tube had to be placed for feeding.  The applicant endorsed significant somatic complaints while hospitalized and had concerns about having a serious deadly illness.  Even upon her discharge when she was more stable, she continued on insisting she had no mental health problems and that the team should be focused on her medical issues.  The applicant was diagnosed with Psychosis NOS; however, the underlying reason for her condition was never established.   The Psychiatric Consultant does not agree with the applicant that her psychiatric symptoms were the result of low potassium and hormonal imbalance.  

The applicant was referred for a MEB immediately following her discharge from the hospital.  The attempt at obtaining additional information through neuropsychological testing has failed due to her effort to present herself in a less sick and more favorable light.  By September 2010, the applicant’s level of social and industrial impairment was changed from “definite” on discharge from the hospital to “none.”  However, two weeks later, she developed another psychotic episode with somatic delusions during which she called an ambulance and was evaluated in the emergency room.  She denied any psychotic symptoms and continued to demonstrate a lack of insight into her psychiatric illness.  By the middle of October, the applicant’s level of impairment was determined to be “considerable” and her psychiatrist flirted with the idea of late onset schizophrenia but did not formally change her diagnosis and left it as Psychosis, NOS.  For the following six months, she continued to deny any psychiatric problems, refused medications and disagreed with her diagnosis.  She relentlessly insisted she should be returned to duty and rebutted the decision of the IPEB for medical retirement through appeals all the way to SAFPC.  In the final update to the MEB on 18 April 2011, the applicant’s psychiatrist discussed the importance of prophylactic medications even in the absence of the psychotic symptoms and acknowledged she was susceptible to sudden incapacitation but documented that she had no social or industrial impairment and provided her with the GAF of 85.
 
A complete copy of the BCMR Psychiatric Consultant’s evaluation is at Exhibit F.  

AFPC/DP2SP recommends denial for award of the MSM with one Silver Oak Leaf Cluster (MSM, w/1 SOLC).  DP2SP was unable to locate a special order, certificate or recommendation to verify the applicant was awarded a MSM from her last assignment at Maxwell AFB, AL.  The special order is the official source document for verification of award of decorations.  To grant relief would be contrary to the criteria established by DODM 1348.33, Manual of Military Decorations and Awards, the Secretary of the Air Force and Chief of Staff.  

A complete copy of the AFPC/DP2SP evaluation is at Exhibit G.

APPLICANT'S REVIEW OF AIR FORCE EVALUATION:

Copies of the Air Force evaluations were forwarded to the applicant on 15 November 2016 for review and comment within 30 days (Exhibit H).  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 not timely filed; however, it is in the interest of justice to excuse the failure to timely file.

3.  Insufficient relevant evidence has been presented to demonstrate the existence of an error or injustice for award of the MSM w/1 SOLC, removal of the MEB and that she be reinstated on active duty in the grade of colonel.   The applicant contends she was the victim of abuse of authority and reprisal pursuant to DODD 7050.06, Military Whistleblower Protection, dated 23 July 2007, and 10 U.S.C. § 1034 and that she submitted a complaint to the DOD IG.  However, we are persuaded the DOD IG determined the applicant’s complaint untimely and the case was closed without an investigation.  In view of this, we find the applicant has provided insufficient evidence, other than her own uncorroborated assertions,  to substantiate she was the victim of abuse of authority and reprisal pursuant to DODD 7050.06, Military Whistleblower Protection, dated 23 July 2007, and 10 U.S.C. § 1034.  The applicant contends she was fit for duty and the MEB; however, the applicant has provided insufficient evidence to indicate this to be the case.  On the contrary, we find no error or injustice in the convening of the MEB.  The applicant’s record is replete with documentation to conclude there was sufficient reason for the convening of the MEB.  We also note the applicant’s commander consulted with her treating mental health physicians prior to directing the mental health evaluation.  Therefore, we agree with the findings and recommended disposition of the MEB, IPEB, FPEB and SAFPC that the applicant was not fit for duty and there was no error or injustice in her permanent disability retirement.  Therefore, we find no error or injustice to void her disability retirement or return her to active duty in the grade of colonel.  With respect to the applicant’s request that she be awarded a MSM w/1 BOLC, we agree with the opinion and recommendation of AFPC/DP2SP and adopt the rationale expressed as the basis for our conclusion the applicant has not been the victim of an error or injustice.  In view of the above and in the absence of evidence to the contrary, we find no basis to recommend granting the requested relief sought in this portion of the application.  

4.  Notwithstanding the above, sufficient relevant evidence has been presented to demonstrate the existence of an error or injustice to warrant partial relief.  The BCMR Psychiatric Consultant conducted an exhaustive review of the applicant’s record and concluded the FPEB and SAFPC did not have sufficient information to make a final rating determination and given the applicant’s mental health condition at the time of her discharge, she should have been placed on the TDRL or permanently retired with at least a 30 percent rating for physical disability.  Based on the assessment, the BCMR Psychiatric Consultant recommends the Board either place the applicant on TDRL with a 30 percent disability rating with a re-evaluation at a later date or that she be permanently retired with a 30 percent disability rating under VASRD, code 9210 effective her established retirement date.  Due to the passage of time and the applicant’s retirement almost five years ago we find no reason at this time to place on the applicant on the TDRL with a future re-evaluation.  However, we agree with the opinion and recommendation of the BCMR Psychiatric Consultant and adopt the rationale expressed that the applicant is the victim of an error or injustice to warrant retirement effective 28 April 2012 for permanent disability with a compensable percentage for physical disability of 30 percent.  Therefore, we recommend the applicant’s record be corrected to the extent indicated below.  

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 RECOMMENDS THAT:

The pertinent military records of the Department of the Air Force relating to the APPLICANT be corrected to show that Special Order Number ACD-01280, dated 10 February 2012, be amended to reflect she was retired effective 28 April 2012 for permanent disability with compensable percentage for physical disability of 30 percent.  

The following members of the Board considered AFBCMR Docket Number BC-2015-02432 in Executive Session on 26 January 2017 under the provisions of AFI 36-2603:

	 , Panel Chair
	 , Member
	 , Member

All members voted to correct the records as recommended.  The following documentary evidence pertaining to AFBCMR Docket Number BC-2015-02432 was considered:

	Exhibit A.  DD Form 149, dated 3 June 2015, w/atchs.
	Exhibit B.  Applicant's Master Personnel Records.
	Exhibit C.  E-mail, OIG DOD, dated 24 June 2015 (Withdrawn).
	Exhibit D.  Memorandum, AFPC/DPFDD, dated 10 February 2016.
	Exhibit E.  E-mail, OIG DOD, dated 11 February 2016 
		      (Withdrawn).
	Exhibit F.  Memorandum, BCMR Psychiatric Consultant, dated 
  4 October 2016.
Exhibit G.  Memorandum, AFPC/DP2SP, dated 4 November 2016.  
Exhibit H.  Letter, AFBCMR, dated 15 November 2016.

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