RECORD OF PROCEEDINGS

IN THE MATTER OF:	DOCKET NUMBER:  BC-2016-03385

   	COUNSEL: NONE 
    
 	HEARING: NO

APPLICANT REQUESTS:

Her discharge with a narrative reason for separation of “Secretarial Authority” be changed to a medical discharge. 

APPLICANT CONTENDS:

In her previous case, AFBCMR Docket Number BC-2015-00187, the Board granted the applicant’s request to change her DD Form 214, Certificate of Release or Discharge from Active Duty, to remove “Personality Disorder” and replace it with “Secretarial Authority.”  

She was sexually assaulted in her hotel room en route to basic training while on active duty orders.  Her discharge should have been handled like other similarly situated applicants who were sexually assaulted at boot camp.  She was diagnosed with Acute Stress Disorder and Post-Traumatic Stress Disorder (ASD/PTSD) while on active duty, and should have been medically discharged.  AFBCMR Docket Number BC-2002-03231 is very similar to her case, and sets precedent.  The applicant in BC-2002-03231 was processed through the disability evaluation system (DES), placed on the Temporary Disability Retired List (TDRL), and her condition improved; however, the applicant here was involuntarily discharged and her PTSD only got worse.  She would have also improved with proper intervention.  

The applicant’s complete submission is at Exhibit A. 

STATEMENT OF FACTS:

On 30 May 95, the applicant was diagnosed with Acute Stress Disorder (ASD) and was recommended for “immediate removal from training—do not return to duty.”  

On 2 Jun 95, the applicant received an entry-level separation (ELS), with an uncharacterized character of service, a narrative reason for separation of “Secretarial Authority,” after 9 days of active duty service. 

On 18 Mar 03, the Board deliberated the case of a different applicant cited as precedent, AFBCMR Docket Number BC-2002-03231.  In that case, the applicant requested her DD Form 214, Certificate of Release or Discharge from Active Duty, be changed to reflect her medical separation instead of an entry-level separation discharge.  This other applicant was also sexually assaulted en route to basic training while on active duty orders, and was diagnosed with Acute Stress Disorder secondary to sexual assault accompanied by social and industrial adaptability impairment.  The Informal Physical Evaluation Board (IPEB) recommended placing that applicant on the TDRL with a 30 percent disability rating.  That applicant also developed PTSD.  During her scheduled TDRL re-evaluation, the applicant’s symptoms showed improvement, and she was discharged with disability severance pay at a 10 percent compensable disability rating.  

The applicant in the instant case filed her first claim for disability with the Department of Veterans Affairs (DVA) in 2012.  Evidence in the record indicates that the earliest point in time the applicant sought private treatment for assistance with counseling – after she left active service – was in 2009.  In 3 Sep 13, the DVA awarded the applicant in the instant case a 70 percent compensable disability rating due to being diagnosed with PTSD with military sexual trauma, under Veterans Affairs Schedule for Rating Disabilities (VARD) code 9411.  

On 25 Aug 17, OSDS(P&R) issued a memorandum, Clarifying Guidance to Military Discharge Review Boards and Boards for Correction of Military/Naval Records Considering Requests by Veterans for Modification of their Discharge Due to Mental Health Conditions, Sexual Assault, or Sexual Harassment, which stated, in part, “liberal consideration will be given to veterans petitioning for discharge relief when the application for relief is based in whole or in part on matters relating to mental health conditions, including PTSD; TBI; sexual assault; or sexual harassment.  (Exhibit C)  

DODI 1332.14, Enclosure 4, para 3.c.(1) states separation processing initiated while an enlisted Service member is in entry-level status will be described as an entry-level separation, except when the Secretary makes a case-by-case determination that characterization of service as honorable is clearly warranted.  Such as determination is authorized under five circumstances, one of which is for the convenience of the U.S. Government, including a mental disorder not constituting a physical disability which significantly impairs the member’s ability to function in the military environment.  Enclosure 4, para 3.c.(1)(a)(2), referencing Enclosure 3, para 8(c)).
 
For more information, see the excerpt of the applicant’s record at Exhibit B and the advisory at Exhibit D.

AIR FORCE EVALUATION:

The AFBCMR Psychiatric Advisor recommends partially granting the application.  Addressing the applicant’s implicit desire for a medical retirement, the military 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 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 “snapshot” time of separation and not based on post-service progression of disease or injury.  To the contrary, the DVA, operating under a different set of laws, Title 38, U.S.C., is empowered to offer compensation for any medical condition with an established nexus with military service, without regard to its impact upon a member’s fitness to serve, the narrative reason for release from service, or the length time transpired since the date of discharge.  The DVA may also conduct periodic reevaluations for the purpose of adjusting the disability rating awards as the level of impairment from a given medical condition may vary [improve or worsen] over the lifetime of the veteran.

The applicant is asking the AFBCMR to re-evaluate her discharge in light of her mental health condition at the time of discharge and as the causative factor for her discharge.  In 1995, the applicant was sexually assaulted en route to boot camp at Lackland AFB, was diagnosed with Acute Stress Disorder/PTSD within days of the assault, and was immediately sent home.  In support of her request, the applicant obtained the record of another trainee, who suffered the same abuse, but experienced a different outcome [than discharge].  In the case of the other applicant, the case went to a medical evaluation board (MEB) and then the IPEB, who put her on the TDRL with a 30 percent disability rating, which gave her time to stabilize after the trauma.  After a period of time, she demonstrated improvement as well as stabilization and was discharged with disability severance pay of 10 percent.  Both women had the same diagnosis and both were labeled as unfit due to their Acute Stress Disorder/PTSD diagnosis.  In light of the Hagel Memorandum requiring liberal consideration, a reconsideration of this case is justified. 

If the applicant had been placed on the TDRL, she would have been on it for approximately 6 months, likely at a 50 percent rating, and then been re-evaluated.  Based on the applicant’s report of her condition, she would have been discharged with disability severance pay of 10 percent. Recommend she be granted a discharge with severance pay due to a medical disability due to ASD/PTSD with a VASRD Code 9411, and a disability rating of 10 percent.

The complete advisory is at Exhibit D.

APPLICANT’S REVIEW OF AIR FORCE EVALUATION:

The Board sent a copy of the Air Force evaluation to the applicant on 26 Jun 18 for comment (Exhibit D).  The applicant submitted a memorandum dated 5 Jul 18, acknowledging that the AFBCMR Psychiatric Advisor’s opinion coincides with what she was trying to request.  The applicant states that she does not personally have clinical information around the time she was discharged from the service because she was homeless and in many ways, was unable to function normally.  She has sought counseling with the DVA over the last several years, which has helped.  The applicant states that if the Board accepts the AFBCMR Psychiatric Advisor’s opinion in her case, that is the best thing that can be done for her discharge correction and would right the wrong that happened before. (Exhibit F)

THE BOARD CONCLUDES:

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 the applicant is the victim of an error or injustice.  The Board concurs with the rationale and recommendation of the AFBCMR Psychiatric Advisor and finds a preponderance of the evidence substantiates the applicant’s contentions.  Therefore, the Board recommends the applicant’s records be corrected as indicated below.

THE BOARD RECOMMENDS:

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

	a. On 1 June 1995, she was found unfit to perform the duties of her office, rank, grade or rating by reason of physical disability incurred while entitled to receive basic pay; the diagnosis in her case is Post-Traumatic Stress Disorder (PTSD), VASRD code 9411, rated at 10 percent; the total compensable percentage was 10 percent; the degree of impairment is 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 received in line of duty as a direct result of armed conflict or caused by an instrumentality of war. 

	b. On 2 June 1995, she was discharged by reason of physical disability with entitlement to disability severance pay.

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-2016-03385 in Executive Session on 29 Aug 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 17 Aug 16.
Exhibit B:	Documentary evidence, including relevant excerpts from official records.
Exhibit C: Memorandum, OSD(P&R), dated 25 Aug 17.  
Exhibit D:	Advisory opinion, AFBCMR Psychiatric Advisor, dated 17 May 18.
Exhibit E:	Notification of Advisory, SAF/MRBC to applicant, dated 26 Jun 18.
Exhibit F:  Applicant’s Response, dated 5 Jul 18.

Taken together with all Exhibits, this document constitutes the true and complete Record of Proceedings for Docket Number BC-2016-03385 required by AFI 36-2603, paragraph 4.11.9.