RECORD OF PROCEEDINGS

IN THE MATTER OF:	DOCKET NUMBER: BC-2016-01728

	COUNSEL: YES
			
	HEARING: NO

APPLICANT REQUESTS THAT:

She be medically retired with a combined disability rating of 30 percent or more for bilateral foot disability and Post Traumatic Stress Disorder (PTSD).

APPLICANT CONTENDS THAT:

Through counsel, the Physical Evaluation Board (PEB) should have found her PTSD to be an unfitting condition and assigned a disability rating of at least 50 percent.  Additionally, her bilateral foot condition warranted disability evaluations higher than 20 percent and was evaluated by the Department of Veteran Affairs (DVA) in Sep 2014 at 50 percent disability.  The applicant’s complete submission is at Exhibit A.

STATEMENT OF FACTS:

The applicant is a former Air Force staff sergeant.  

On 5 Mar 12, the applicant’s commander recommended her for a Medical Evaluation Board (MEB)/Physical Evaluation Board (PEB) on the basis of her medical condition and  frequent lapses in concentration and the need for rehabilitation for her addiction to prescription medicine.

On 4 May 12, the applicant was referred to an Informal PEB (PEB) by the MEB for chronic foot pain.

On 17 Jul 12, the DVA provided a proposed combined compensable rating of 20 percent for the applicant’s unfitting conditions of Plantar Fasciitis, Metatarsalgia, Neuroma, Neuroma Excisions and PES Planus, right/left.  However, her claimed PTSD disability was rated at 50 percent.

On 1 Aug 12, the applicant was found unfit by the IPEB and the IPEB recommended discharge with severance pay (DWSP) with a combined compensable disability rating of 20% for Plantar Fasciitis, Metatarsalgia, Neuroma, Neuroma Excisions, and PES Planus, right/left.  PTSD was listed as Category II - Conditions that can be unfitting but are not currently compensable or ratable.

On 9 Aug 12, the applicant agreed with the findings and recommended disposition of the IPEB and waived her right to a Formal PEB.

On 11 Jan 13, the Personnel Board of the SAF Personnel Council directed DWSP under the provisions of Title 10, USC, Section 1203, Retirement or Separation for Physical Disability, and terminated the action under AFI 36-3208, Administrative Separation of Airmen.  The Board noted that the applicant was concurrently the subject of an involuntary discharge due to drug abuse and a medical discharge due to chronic bilateral foot pain and found clear evidence that the applicant’s medical impairment and/or extenuating circumstance were likely the cause of the misconduct.  It was also determined that she should be discharged at a lower rank of Staff Sergeant.

On 27 Apr 13, the applicant was honorably discharged from the Air Force with a Narrative Reason for Separation of, “Disability, Severance Pay, Non Combat (Enhanced),” and credited with 13 years, 5 months and 11 days active service. 

On 3 Sep 14, the Secretary of Defense issued a memorandum providing guidance to the Military Department Boards for Correction of Military/Naval Records as they carefully consider each petition regarding discharge upgrade requests by veterans claiming PTSD.  In addition, time limits to reconsider decisions will be liberally waived for applications covered by this guidance.

On 25 Aug 17, the Under Secretary of Defense issued clarifying guidance to Discharge Review Boards and Boards for Correction of Military/Naval Records considering requests by veterans for modification of their discharges due in whole or in part to mental health conditions [PTSD, Traumatic Brain Injury (TBI), sexual assault, or sexual harassment].  Liberal consideration will be given to veterans petitioning for discharge relief when the application for relief is based in whole or in part on the aforementioned conditions.

Currently, service members diagnosed with mental health conditions receive heightened screening to ensure the causal relationship of possible symptoms and discharge basis is fully considered, and characterization of service is appropriate. Veterans discharged under prior procedures, or before verifiable diagnosis, may not have suffered an error because the separation authority was unaware of their condition or experience at the time of discharge.  However, when compared to similarly situated individuals under current standards, they may be the victim of injustice because commanders fully informed of such conditions and causal relationships today may opt for a less prejudicial discharge to ensure the veteran retains certain benefits, such as medical care.

Liberal consideration does not mandate an upgrade.  Relief may be appropriate, however, for minor misconduct commonly associated with the aforementioned mental health conditions and some significant misconduct sufficiently justified or outweighed by the facts and circumstances.

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

AIR FORCE EVALUATIONS:

AFPC/DPFFD recommends denying the application.  At the time of the applicant’s medical board, there was no such evidence provided regarding the applicant’s PTSD; the applicant was boarded, referred and found unfit exclusively for her Bilateral Plantar Fasciitis, Metatarsalgia, Neuroma, Neuroma Excisions, and PES Planus, left/right.  Disability processing is based on a “snapshot in time” and does not take into account any exacerbations or progressions of a disability that may have occurred following the service applicant’s release from active duty.  The effective date of the rating increase for the applicant’s Bilateral Plantar Fasciitis, Metatarsalgia, Neuroma, Neuroma Excisions, and PES Planus, left/right is well after her separation from the Air Force.  An increase in rating by the VA after separation from the service does not warrant a change in the total compensable rating awarded at the time of her separation.   The complete advisory is at Exhibit C.

BCMR Psychiatric Advisor recommends granting the application.  After an extensive review of the applicant’s medical records, it is determined that the error was made in not finding the applicant’s mental health condition unfitting at the time of her MEB. The evidence is sufficient to warrant the change of record and award 50 percent disability rating under VASRD code 9422 for Pain Disorder, also claimed as PTSD.  The complete advisory is at Exhibit D.

APPLICANT’S REVIEW OF AIR FORCE EVALUATIONS:

The Board sent a copies of the Air Force evaluation and the BCMR Psychiatric Advisory to the applicant on 8 Jun 18 for comment (Exhibit E), and the applicant replied on 27 Jun 18.  In her response, the applicant, through counsel, respectfully requests the Board disregard the 18 Jul 16 AFPC/DPFDD Advisory opinion who has no apparent specialized knowledge of psychiatry generally or PTSD specifically and dismissed the DVA’s 50 percent disability rating and adopt the 12 Mar 18 BCMR Psychiatric Advisor’s Advisory opinion.  The applicant’s complete response is at Exhibit E.

THE BOARD CONCLUDES THAT:

1.  The application was not timely filed, but it is in the interest of justice to excuse the delay.

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

3.  After reviewing all Exhibits, the Board concludes the applicant has presented evidence sufficient to demonstrate an injustice regarding part, but not all of her request.  In particular, the Board agrees with the AFBCMR Psychiatric Advisor and recommends granting relief based on the Department of Defense Liberal Consideration policy, dated 25 Aug 17.  However, for the remainder of the applicant’s request, the evidence presented did not demonstrate an error or injustice and note that an increase in rating by the DVA of her bilateral foot condition after separation from service does not warrant a change in the total compensable rating awarded at the time of her separation and the Board therefore finds no basis to recommend granting that portion of the applicant’s request.  Therefore, the Board recommends correcting the applicant’s records as indicated below.

THE BOARD RECOMMENDS THAT:

The pertinent military records of the Department of the Air Force relating to the APPLICANT be corrected to show that at the time of her discharge, she was awarded a disability rating of 50 percent for post-traumatic stress disorder. 

	a.  On 1 August 2012, she was found unfit to perform the duties of her office, rank, grade, or rating by reason of physical disability, incurred while she was entitled to receive basic pay; the diagnoses in her case were 1) Plantar Fasciitis, Metatarsalgia, Neuroma, Neuroma Excisions and PES Planus, left/right with a disability rating of 20 percent, and 2) Pain Disorder, also claimed as post-traumatic stress disorder, that her condition was under VASRD code 9422; with a disability rating of 50 percent; the degree of impairment was permanent; 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 as a direct result of armed conflict or caused by an instrumentality of war and was not combat-related.  

	b.  On 27 April 2013, she was discharged from active duty and on 28 April 2013, she was permanently retired with a compensable percentage for physical disability of 60 percent.  

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

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-2016-01728 in Executive Session on 25 Jul 18:

Panel Chair
Member
Member

All members voted to correct the record.  The panel considered the following:

Exhibit A:	Application, DD Form 149, w/atchs, dated 26 Apr 16.
Exhibit B:	Documentary evidence, including relevant excerpts from official records.
Exhibit C:	Advisory opinion, AFPC/DPFDD, dated 18 Jul 16.
Exhibit D:	Advisory opinion, BCMR Psychiatric Advisor, dated 12 Mar 18.
Exhibit E:  Notification of Advisory, SAF/MRBC to applicant, dated 8 Jun 18.
Exhibit F:	Applicant’s response, dated 27 Jun 18.
	
Taken together with all Exhibits, this document constitutes the true and complete Record of Proceedings required by AFI 36-2603, paragraph 4.11.9 for Docket Number BC-2016-01728.