RECORD OF PROCEEDINGS

IN THE MATTER OF:	DOCKET NUMBER: BC-2016-00614

	COUNSEL: YES

	HEARING: YES

APPLICANT REQUESTS THAT:

1)	His Post-Traumatic Stress Disorder (PTSD) (or mental health disability should a different diagnosis be credited) be considered In the Line of Duty (ILOD);

2)	He be medically retired based on his unfitting conditions at rated at least 50 percent disabled;

3)	That he be credited with additional active duty service between his last separation date from active duty and final disposition of the case (Medical Continuation [MEDCON] orders) or provided Incapacitation Pay (INCAP); or, 

4)	In the alternative, he be referred to the Integrated Disability Evaluation System (IDES);  

5)	A HQ USAF Judge Advocate General advisory opinion be rendered based on the nature and complexity of several legal issues raised in the case; and,  

6)	The Board consider the case (BC-2011-03171) of a similarly situated claimant who received relief from the Board (Exhibit H).  

APPLICANT CONTENDS THAT:

While serving on active duty in 2003, he incurred PTSD (or depression and anxiety) when his spouse abducted his child and physically attacked him.  He now fails to meet retention standards.  
His subsequent Line of Duty investigation finding of his PTSD to have Existed Prior to Service-Line of Duty Not Applicable (EPTS-LOD N/A) was in error.  Instead, the finding should have been In the Line of Duty (ILOD) as his PTSD clearly incurred while on active duty and worsened to the point to where he fail to meet retention, deployment, and mobility standards.  He should be granted a disability retirement with at least a 50 percent disability rating and, either credit with additional active service via MEDCON or INCAP pay through the final disposition of his case through the IDES.  

The applicant’s complete submission is at Exhibit A.

STATEMENT OF FACTS:

The applicant is a retirement-eligible (awaiting age 60) Air Force Reserve colonel and has served various periods of active service throughout his career. 

The applicant was mobilized in support of Operation NOBLE EAGLE/ENDURING FREEDOM/IRAQI FREEDOM from 5 Mar 01 through 26 Jun 04.  

The applicant’s last period of active service was from 1 Oct 12 through 15 May 13.

On 25 Mar 16, the applicant received a combined rating of 90 percent, with 70 percent for Trauma and Stress Related Disorder, by the Department of Veterans Affairs (DVA), effective 16 May 13.  

On 1 Aug 15, the applicant was reassigned to the Inactive Status List Reserve Section.  

For more information, see the excerpt of the applicant’s record at Exhibit B and the advisories at Exhibits C, D, and E.

AIR FORCE EVALUATION:

AFRC/SG recommends denying the application.  The applicant’s LODs for PTSD, depression, and anxiety were accomplished within the applicable Air Force Instructions and he was afforded due process via an informal investigation, in addition to a formal reinvestigation, and in both instances were adjudicated and determined the conditions and symptoms were EPTS-LOD N/A.  Furthermore, during the initial case and reinvestigation the board connected the applicant’s diagnoses of anxiety and depression to marital and financial issues versus any service-connected incident and found no legitimate clinical documents to support the diagnosis of PTSD.  The applicant’s diagnoses of anxiety and depression were confirmed; however, the PTSD diagnosis was not confirmed.  The complete advisory is at Exhibit C.

AFBCMR Psychiatric Advisor recommends granting the applicant’s mental health illness as ILOD.  The original stressor reported by the applicant is the kidnapping of his daughter while on active duty in Nicaragua in 2003, by his then-wife a Nicaragua native.  Furthermore, for many years the applicant has suffered from an abusive relationship and a lengthy contentious divorce and custody battle.  The combination of all those aggravating factors, have taken a toll on the applicant’s psychological health.  According to his medical records, the applicant has been continuously treated for anxiety and depression related issues since as early as 2005.  The applicant incurred the condition in 2003, while he was on active duty, he originally reported his symptoms when he was in a duty status in 2005, and he claims that it became severely impairing in 2013.  The complete advisory is at Exhibit D.

AFBCMR Medical Advisor recommends granting the ILOD finding.  Furthermore, he recommends that the record reflect that he was not transferred to the IRR but on that date, he was found unfit and placed on the Temporary Disability Retired List (TDRL), with a 50% disability rating due for a period of six months, following which he was removed from the TDRL and retired permanently with a 70% disability rating.  

In order to gain IDES processing eligibility, there must first be one or more medical conditions that prevents the member from reasonably performing the duties of his or her office, grade, rank, or rating.  The preponderance of medical evidence, from CY 2005 through the date of termination of active duty orders in CY 2013, fails to demonstrate duty restrictions were imposed due to a mental disorder of a sufficient level or duration, without expectation of resolution within 365 days, to warrant referral for Medical Evaluation Board and Physical Evaluation Board processing.

Additionally, and most important for the Reserve member, the medical condition must be found ILOD.  The record indicates, although initially believed to be in line of duty by his local medical, legal, and command authorities, subsequent review by the Air Force Reserve Command Line of Duty Board, twice, reversed this finding [once in appeal], following investigations, and determined that the applicant’s mental health condition EPTS-LOD N/A.  Having not met eligibility for referral and processing through the IDES, the evidence leads to denying the applicant’s petition(s). 

The applicant’s legal counsel has correctly identified policies and laws which would ordinarily qualify for DES processing.  These include Title 10’s “8-Year rule.”  Although the applicant had completed greater than the minimum qualifying 8 years of active service, this law is not an LOD determination, but that it applies only when a medical condition has been found unfitting rendering an individual, otherwise, eligible for release from service under 10 U.S.C., 1201, 1202, or 1203.  With respect to the LOD determination, an inciting traumatic occurrence in CY 2003 might have been considered ILOD.  However, given the applicant’s return to a subsequent period of active service in CY 2005, he was presumed fit and, thus, the previous LOD determination would no longer have relevance.  What is noteworthy is that it was not until the applicant was returned to his traditional, non-active duty status, that evidence of deterioration of his mental status appears in the case file. These include disclosures in the summary from the military physician and subsequent evaluations by the DVA and the Social Security Administration.

The silence of duty impairment in the record related to a mental disorder, up to the time of release from active duty orders, followed by the evaluations conducted Sep and Nov 13 suggest that the worsening of the applicant’s mental status may have been related to occupational, financial matters, and/or other precipitating matters.  This is noted by the statement that he was “currently stressed about the challenges of returning to the civilian work environment as an attorney” in the VA evaluation of Jun 13.

Nevertheless, based upon the military evaluation of Sep 13, the mental health provider opined that the applicant was non-worldwide qualified, from a mental health perspective, and assigned a Global Assessment of Functioning of 45; which represents a significant level of functional impairment.  Noting the applicant’s longstanding mental health history and deterioration, the military provider should have initiated an AF Form 469, Duty Limiting Condition Report.

The evidence supplied by the military provider on 3 Sep 13, the DVA provider [albeit a clinical social worker] on 5 Nov 13, and the 10 Sep 14 ruling by SSA finding the applicant “disabled from Jul 13,” collectively indicate the applicant would likely have been disqualified for continued Reserve service [even, if as a non-duty related condition].  The complete advisory is at Exhibit E.

APPLICANT’S REVIEW OF AIR FORCE EVALUATION:

The Board sent a copy of the Air Force evaluation to the applicant’s counsel on 7 May 18 for comment (Exhibit F), and he replied on 17 May 18.  In his response, the applicant’s counsel states the applicant agrees with the recommendation for an interim placement on the TDRL and an ultimate disposition of 70 percent permanent disability retirement.  He further asks that the Board consider the case expeditiously.  The applicant’s complete response is at Exhibit G.

THE BOARD CONCLUDES THAT:

1.  The application was timely filed.

2.  The applicant exhausted all available avenues of non-judicial relief before applying to the Board.

3.  After thoroughly reviewing all Exhibits, it is the Board’s opinion that the applicant is the victim of an error and injustice.  While the Board notes the comments of AFRC/SG indicating that relief should be denied, the Board believes a preponderance of the evidence substantiates the applicant’s contentions.  The Board concurs with the rationale and recommendation of the AFBCMR Psychiatric and Medical Advisors that the applicant’s mental health condition was ILOD and his condition worsen to the point of being unfitting.  While the Board notes the applicant’s counsel requests the Board review another similarly situated case where the applicant received relief from the Board, we note the significant difference in the two cases as the other service member processed through the IDES, which was not so in the applicant’s case.  As for the additional requests from counsel, the Board determined a HQ USAF/JAA advisory was unnecessary and the totality of the full and fitting relief recommended will eliminate any break in service between the applicant’s last day of active service and retirement.  Consequently, the relief does not warrant additional MECON or INCAP pay relief.  Therefore, the Board recommends correcting the applicant’s records as indicated below.

4.  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 the Board’s understanding of the issues involved.

THE BOARD RECOMMENDS THAT:

The pertinent military records of the Department of the Air Force relating to the APPLICANT be corrected to show that:

a.  On 15 May 2013, he was found unfit to perform the duties of his office, rank, grade, or rating by reason of physical disability, incurred while he was entitled to receive basic pay; the diagnosis in his case was Other Specified Trauma and Stress Related Disorder, Claimed as Post-Traumatic Stress Disorder with Depression and Anxiety; that his condition was under VASRD code 9499-9411 with a disability rating of 50 percent; the degree of impairment was temporary; the disability was not due to intentional misconduct or willful neglect; the disability was not incurred during a period of unauthorized absence; and the disability was not received as a direct result of armed conflict or caused by an instrumentality of war and was not combat-related.

b.  On 15 May 2013, he was honorably discharged from active duty and on 16 May 2013, his name was placed on the Temporary Disability Retired List (TDRL).  

c.  On 16 November 2013, the applicant was removed from the TDRL and transferred to the Permanent Disability Retired List (PDRL) with a disability rating of 70 percent, due to Other Specified Trauma and Stress Related Disorder, Claimed as Post-Traumatic Stress Disorder with Depression and Anxiety.   

d.  His election of the Survivor Benefit Plan option will be corrected in accordance with his expressed preferences and/or as otherwise provided for by law or the Code of Federal Regulations.

The application was adjudicated without a personal appearance.

CERTIFICATION:

The following quorum of the Board, as defined in Air Force Instruction (AFI) 36-2603, Air Force Board for Correction of Military Records (AFBCMR), paragraph 1.5, considered Docket Number BC-2016-00614 in Executive Session on 6 Jun 18:

Panel Chair 
Panel Member
Panel Member

All members voted to correct the record.  The panel considered the following evidence for Docket Number BC-2016-00614:

Exhibit A:	Application, DD Form 149, w/atchs, dated 23 Apr 15 w/amendment, 26 Feb 16.
Exhibit B:	Documentary evidence, including relevant excerpts from official records.
Exhibit C:	Advisory opinion, AFRC/SG, dated 25 Aug 17.
Exhibit D:	Advisory opinion, AFBCMR Psychiatric Advisor, dated 7 Sep 17.
Exhibit E:	Advisory opinion, AFBCMR Medical Advisor, dated 17 Apr 18.
Exhibit F:	Notification of Advisory, SAF/MRBC to applicant, dated 7 May 18.
Exhibit G:	Applicant’s response, dated 17 May 18.
Exhibit H:	Miscellaneous Document, BC-2011-03171, board date 23 Oct 12.

Taken together with all Exhibits, this document constitutes the true and complete Record of Proceedings required by AFI 36-2603, paragraph 4.11.9.