RECORD OF PROCEEDINGS
AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS

IN THE MATTER OF: 			DOCKET NUMBER: BC-2015-05272

						COUNSEL:  NONE

						HEARING DESIRED:  YES 

APPLICANT REQUESTS THAT:

His diagnosed Post Traumatic Stress Disorder (PTSD)/Anxiety Disorder by the Department of Veterans Affairs (DVA) be included in his Air Force record and included in his retirement rating.

APPLICANT CONTENDS THAT:

His PTSD/Anxiety Disorders were not diagnosed and the severity of the conditions were not recognized until after he was discharged from the Air Force.

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

STATEMENT OF FACTS:

The applicant initially entered the Regular Air Force on 19 June 2001.

On 18 April 2006, the applicant underwent a Medical Evaluation Board (MEB) for moderate asthma.  The MEB referred his case to the Informal Physical Evaluation Board (IPEB).

On 18 May 2006, the IPEB reviewed the applicant’s case and recommend discharge with severance pay.  On 19 May 2006, the applicant concurred with the findings and recommendations of the IPEB. 

On 3 July 2006, the applicant was furnished an honorable discharge, with a narrative reason for separation of disability, severance pay.  He was credited with 5 years and 15 days of active service.

On 22 July 2010, he was granted a 30 percent disability rating for Anxiety Disorder by the DVA effective 20 January 2010; however, his PTSD diagnosis was rated not service connected, not subject to compensation.

On 1 October 2015, the DVA continued his 30 percent rating for anxiety disorder and confirmed/continued the previous denial of service connection for PTSD.

On 15 May 15, the Physical Disability Board of Review (PDBR) considered the applicant’s case and recommended his prior discharge with severance pay be re-characterized to reflect permanent disability retirement, effective the date of his prior separation. 

On 22 June 2016, per Special Order No. ACD-02845, the applicant was relieved from active duty 3 July 2006 and placed on the Permanent Disability Retired List, effective 4 July 2006.

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

AIR FORCE EVALUATION:

AFPC/DPFDD recommends denial indicating there is no evidence of an error or an injustice occurring during the applicant’s disability processing.

A review of the evidence provided, the only condition addressed in the applicant’s MEB was Asthma and it was found unfitting by the IPEB.  The applicant made no mention of any additional medical conditions that he felt rendered him unfit in his Letter of Exception, dated 20 April 2006.  Furthermore, at the time of the IPEB he chose not to exercise his right to appeal to the Formal Physical Evaluation Board (FPEB) and the Secretary of the Air Force Personnel Council (SAFPC) for any other conditions.  The fact that the DVA found his Anxiety Disorder service connected and his PTSD not service connected in July 2010, four years after discharge, does not conclude these conditions were unfitting at the time of discharge.  The 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 ability to perform his or her military duties or worldwide qualification.  This is the reason why an individual can be released from military service for one reason and, yet, sometime thereafter receive a compensation rating from the DVA for one or more additional 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 over the lifetime of the veteran.

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

The AFBCMR Medical Consultant recommends denial of including his 30 percent rating for Anxiety Disorder in his military disability rating computation and final military disposition.

While the applicant has been assigned disability compensation for Anxiety Disorder by the DVA, no evidence is presented to indicate that any mental disorder, such as Anxiety Disorder or PTSD, precluded him from reasonably performing the duties of his office, grade, rank, or rating.  Specifically, there is no evidence that the applicant had an identifiable mental disorder so severe as to disqualify him from worldwide duty to the extent or duration warranting inclusion in his original MEB and subsequent PEB action.

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 specific 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 or progression of disease. 

In determining unfitness, Military Departments rely upon medical standards for retention, e.g., AFI 48-123 and Department of Defense policies.  For example Department of Defense Instruction 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, in effect at the time of the applicant’s service, 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.”  Similar guidance is expressed in the DoDI 1332.18, Disability Evaluation System, dated 5 August 2014, and includes two additional criteria for determining unfitness, 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.”

The Medical Consultant advises the applicant to seek a review of the 10 percent disability rating assigned by the Military Department for his asthma, as he is eligible for this review via application to the Department of Defense PDBR, utilizing a DD Form 294.  The PDBR was established for individuals discharged between 11 September 2001 and 31 December 2009, who received less than a 30 percent disability rating and not entitled to retirement.  The applicant may alternatively apply to the AF Board for Correction for Military Records, but is advised he must choose one or the other, as there is a “lock-out” provision, since both Boards cannot address the same medical issue.  

The AFBCMR Medical Consultant’s complete evaluation is at Exhibit D.

APPLICANT'S REVIEW OF AIR FORCE EVALUATION:

Copies of the Air Force evaluations were forwarded to the applicant on 15 June 2016, 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 Psychiatric Consultant recommends denial indicating the evidence was insufficient to warrant the desired relief.

The Psychiatric Consultant fully concurs with the opinion of the Medical Consultant.  Despite the applicant’s assertions that he has experienced symptoms of psychological distress following his return from a second deployment, unfortunately, there is no factual evidence to support his claim.  The evidence of record reveals the applicant was never seen by a mental health specialist prior to his discharge.  Furthermore, he was not prescribed any medications for sleep, mood or anxiety and he consistently denied any behavioral health concerns on all the evaluations and screening questionnaires prior to 2009.  The fact that the DVA granted him a 30 percent disability rating for Anxiety Disorder, effective 20 January 2010 suggests, while there may have been a nexus with an event during military service, no evidence is presented to demonstrate that the condition was clinically present and unfitting at the time of the applicant’s discharge.  Even though the DVA has granted compensation, this evidence does not invalidate the appropriateness of the military discharge disposition.

The Psychiatric Consultant’s complete evaluation is at Exhibit F.

APPLICANT'S REVIEW OF AIR FORCE EVALUATION:

A copy of the Air Force evaluation was forwarded to the applicant on 23 June 2017, for review and comment within 30 days (Exhibit G).  As of this date, no response has been received by this office.

FINDINGS AND CONCLUSIONS OF THE BOARD:

1.  Insufficient relevant evidence has been presented to demonstrate the existence of an error or injustice.  After a careful review of the applicant's contentions, documentation submitted in support of the request, and the available evidence of record, we are not convinced the applicant has provided sufficient evidence for us to conclude that he is the victim of an error or injustice.  We also note the applicant did not file the application within three years after the alleged error or injustice was discovered, or should have been discovered, as required by Title 10, United States Code, Section 1552 and Air Force Instruction 36-2603.  Therefore, because we do not find it would be in the interest of justice to recommend granting relief, and the applicant has offered no plausible reason for the delay in filing the application, we cannot conclude it would be in the interest of justice to excuse the failure to timely file the application.  Accordingly, we find the application untimely.

2.  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 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-2015-05272 in Executive Session on 27 July 2017, under the provisions of AFI 36-2603:

	, Panel Chair
	, Member
	, Member

The following documentary evidence pertaining to AFBCMR Docket Number BC-2015-05272 was considered:

	Exhibit A.  DD Form 149, dated 16 Dec 15, w/atchs.
	Exhibit B.  Applicant's Master Personnel Records.
	Exhibit C.  Memorandum, AFPC/DPFDD, dated 7 Mar 16.
	Exhibit D.  Memorandum, AFBCMR Medical Consultant,
			  dated 17 May 16.
	Exhibit E.  Letter, AFBCMR, dated 15 Jun 16.
Exhibit F.  Memorandum, AFBCMR Psychiatric Consultant,
  dated 8 Jun 17.
	Exhibit G.  Letter, AFBCMR, dated 23 Jun 17.

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.