RECORD OF PROCEEDINGS

IN THE MATTER OF:	DOCKET NUMBER: BC-2016-02704

XXXXXXXXXXXXX	COUNSEL: XXXXXXXXXXXXXX

	HEARING: YES

APPLICANT REQUESTS THAT:

He be promoted to the grade of lieutenant colonel (O-5), and be returned to active duty.

APPLICANT CONTENDS THAT:

His non-promotion and subsequent involuntary separation from the Air Force was due to errors in his military record and the many injustices he suffered from Oct 08 until Mar 14.  The applicant’s complete submission is at Exhibit A.

STATEMENT OF FACTS:

For the period 25 Sep 08 thru 24 Aug 09, the applicant was assigned to the 86th Medical Group, as the Group Practice Manager (GPM).  

On 18 Dec 08 AHLTA (DoD electronic medical records) indicates the applicant was seen as a walk-in at the Mental Health Clinic at Ramstein AB.  The identified problem was anxiety associated with occupational problems.  He was given a diagnosis of Adjustment Disorder with Anxiety and prescribed medication to address his mood and insomnia issues.

On 21 Dec 08, according to documents submitted by the applicant, he submitted a complaint to the USAFE/IG, alleging, “Abuse of Authority and reprisal by the 3 AF/SG Commander.” 
 
On 7 Jan 09, according to documents submitted by the applicant, he received a Letter of Counseling (LOC) for an incident occurring on 23 Dec 08, where the commander determined the applicant’s behavior was and is unbecoming of a professional officer, which was in violation of Article 133 of the Uniform Code of Military Justice (UCMJ).  Additionally, he was insubordinate and failed to follow lawful orders – violation of Article 92, consistently absent from work and slow-rolled completion of simple tasks – violation of Article 115, and he has become insolent and disrespectful to a senior officer – violation of Article 89.  

On 6 Mar 09, according to documents submitted by the applicant, the USAFE/IG advised him that his allegations did not fit the definition of abuse of authority, and the allegation of reprisal was unfounded.  

For the period 25 Aug 09 thru 14 Apr 11, the applicant was assigned to the 86th Airlift Wing, as Deputy, Wing Plans and Programs.  

For the period 15 Apr 11 thru 14 Apr 12, the applicant was assigned to the 86th Medical Group, as Group Practice Manager (GPM).   

On 13 Jul 11, MEB findings revealed a diagnosis of Delusional disorder, Persecutory Type, approximate date of origin 25 Sep 08.  The applicant was recommended for an Informal Physical Evaluation Board (IPEB). 

On 26 Sep 11, the applicant disagreed with the 25 Aug 11, IPEB findings that he was unfit and recommended permanent retirement with a disability rating of 30 percent, and requested a formal hearing.    

On 12 Dec 11, the applicant agreed with the 7 Dec 11, a Formal Physical Evaluation Board (FPEB) finding that his condition is not unfitting and recommended he return to duty.  The FPEB also noted he may have a condition unsuiting, rather than unfitting for the military service.   

For the period 15 Apr 12 thru 1 Feb 13, the applicant was assigned to the AFELM MED DOD ME (ELM), Dover AFB DE,  as Chief, Armed forces Medical Examiner System Operations.  

On 16 Jul 12, the applicant was considered but not selected for promotion by the CY12B, Lt Col (MSC) Central Selection Board.

On 4 Sep 12, the applicant filed an IG complaint, alleging that the 59 MDW/SGN, reprised against him by downgrading his “end of tour” military decoration after he made a protected communication, in violation of 10 U.S.C. 1034. 

On 23 Oct 12, the applicant was notified he was considered, but not selected for promotion by the CY12 Lt Col (MSC) Central Selection Board.

For the period 2 Feb 13 thru 1 Feb 14, the applicant was assigned to the 436th Medical Support Squadron, Dover AFB DE, as AFSO21 Manager.  

On 15 Jul 13, the applicant was considered but not selected for promotion by the CY13B, Lt Col (MSC) Central Selection Board.

On 31 Mar 14, the applicant was furnished an honorable discharge, and was credited with 12 years, 6 months, and 27 days of active service.   

On 23 Feb 17, the applicant via his counsel requested an extension for his response to the 20 Dec 16 FL-1 30-day notification letter (Exhibit F).

The remaining relevant facts pertaining to this application are contained in the memoranda prepared by the Air Force offices of primary responsibility (OPR), which are attached at Exhibits C and D, and the AFBCMR Psychiatric Consultant at Exhibit H.

AIR FORCE EVALUATION:

AFPC/DP2SP recommends denial indicating there is no evidence of an error or an injustice warranting the applicant be promoted to lieutenant colonel.  The applicant has two non-selections to the grade of lieutenant colonel by the CY12B (16 Jul 12) (P0512B) In-the-Promotion Zone (IPZ) and CY13B (15 Jul 13) (P0513B) Above-the- Promotion Zone (APZ) Lieutenant Colonel Central Selection Boards (CSBs).  The applicant was involuntarily separated on 31 Mar 14.  The governing directive is AFI 36-2501, Officer Promotions and Selective Continuation, dated 16 Jul 04.  The complete advisory is at Exhibit C.

AFPC/DP2STM provides an advisory not for recommendation, but for informational purposes only addressing the aspects surrounding the applicant’s discharge from the Air Force.  Officers who are twice non-selected for promotion to captain, major, and lieutenant colonel are projected for mandatory separation based on DoD directives.  According to documentation found in the master of personnel records, the applicant was considered but not selected for promotion by the Lieutenant Colonel (LAF/MSC) Central Selection Board.  Since this was the second time he was not selected by the board for promotion, he was informed that a mandatory discharge from the Air Force is required.  The separation was processed in accordance with AFI 36-3207, Separating Commissioned Officers (Officers who are twice non-Selected for Promotion) with an Honorable discharge.  Therefore, the applicant’s discharge is correct and in accordance with DoD and Air Force instructions.  There was no evidence submitted supporting that an error or injustice occurred in the discharge processing.  The complete advisory is at Exhibit D.

APPLICANT’S REVIEW OF AIR FORCE EVALUATION:

The Board sent copies of the Air Force evaluations to the applicant on 20 Dec 16 for comment (Exhibit E), and the applicant replied on 31 Mar 17.  In his response via counsel, he contends the AFPC/DP2SP advisory failed to analyze the facts of the case, to include the applicant’s contentions that the erroneous Air Force mental health evaluation, loss of security clearance, and being assigned to duties not commensurate with his grade (reprisal actions), led to his twice failure to get promoted to lieutenant colonel, resulting in his involuntary separation.  The applicant’s complete response is at Exhibit G.

ADDITIONAL AIR FORCE EVALUATION:

The AFBCMR Psychiatric Consultant’s advisory does not provide a recommendation regarding promotion or discharge, but does address the applicant’s contention that the Air Force diagnosis provided him was erroneous.  She opines that claims for diagnostic errors [particularly mental health conditions] are not uncommon; sometimes soon and sometimes much later after separation.   Diagnostic nomenclature assigned to a given set of psychiatric symptoms and stressors, as reported by a patient at a given point in time [during a military evaluation], not uncommonly may change over time; or may be reported differently at subsequent point in time.  Thus, the fact that the applicant has been given a different diagnosis by the Army provider is insufficient to invalidate the accuracy or appropriateness of the conclusions reached by equally competent Air Force mental health authorities and the applicant’s commander who were most familiar with his expressed pattern of behavior at the time of his military service.  The complete advisory is at Exhibit H.   

APPLICANT’S REVIEW OF ADDITIONAL AIR FORCE EVALUATION:

The Board sent a copy of the Air Force evaluation to the applicant on 20 Jun 18 for comment (Exhibit I), and the applicant replied on 26 Jun 18.  He acknowledges the 16 Apr 18, AFBCMR Psychiatric Consultant’s advisory, opining that the advisory indicates he was not discharged for medical reasons (he does not address the consultant’s analysis of the alleged erroneous AF medical provider’s diagnosis).  He reiterates previous contentions that the erroneous Air Force mental health evaluation, and reprisal actions of a few individuals, led to his twice failure to get promoted to lieutenant colonel, resulting in his involuntary separation.  In support of his response to the evaluation, he included previously submitted documentation from Exhibits A and G, as well as a copy of the 28 Feb 11, Notification of Commanding Officer Referral for Mental Health Evaluation (Non-Emergency), Exhibit I.

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 not the victim of an error and injustice.  The Board concurs with the rationale and recommendation of AFPC/DP2SP and finds that a preponderance of the evidence does not substantiate the applicant’s contentions.  We note that on two occasions, 6 Mar 09 and 4 Sep 12, his allegations of reprisal actions were not substantiated by two MAJCOM IGs.  Regarding the applicant’s contention that an erroneous Air Force mental health evaluation contributed to his twice failure to get promoted to lieutenant colonel, resulting in his involuntary separation, we note and concur with the AFBCMR Psychiatric Consultant’s rationale and opinion: there is insufficient evidence to invalidate the accuracy or appropriateness of the conclusions reached by equally competent Air Force mental health authorities, and the applicant’s commander who were most familiar with his expressed pattern of behavior at the time of his military service.  Therefore, the Board recommends against correcting the applicant’s records.

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 applicant be informed the evidence did not demonstrate material error or injustice, and the application will only be reconsidered upon receipt of relevant evidence not already considered by the Board.

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-2016-02704 in Executive Session on 24 Jul 18:

, Panel Chair 
, Panel Member
,Panel Member

All members voted not to correct the record.  The panel considered the following:

Exhibit A:	Application, DD Form 149, w/atchs, dated 4 Jul 16.
Exhibit B:	Documentary evidence, including relevant excerpts from official records.
Exhibit C:	Advisory opinion, AFPC/DP2STM, dated 27 Oct 16.
Exhibit D:	Advisory opinion, AFPC/DP2SP, dated 30 Nov 16.
Exhibit E:	Notification of Advisory, SAF/MRBC to applicant, dated 20 Dec 16.
Exhibit F:	Extension request, Counsel, dated 23 Feb 17.
Exhibit G:	Applicant’s response, dated 31 Mar 17.
Exhibit H:	Advisory opinion, AFBCMR Psychiatric Consultant, dated 16 Apr 18.
Exhibit I:	Notification of Advisory, SAF/MRBC to applicant, dated 20 Jun 18.
Exhibit J:	Applicant’s response, w/atchs, 26 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, pertaining to BC-2016-02704.