RECORD OF PROCEEDINGS

IN THE MATTER OF:	DOCKET NUMBER: BC-2016-03452

   	COUNSEL: NONE 
	 
 	HEARING: NO

APPLICANT REQUESTS:

His discharge for apathy and defective attitude be change to a medical retirement with a 100 percent compensable disability rating.

APPLICANT CONTENDS:

In 1979, the Air Force failed to identify he was severely ill with post-traumatic stress disorder (PTSD), major depressive disorder, and other physical and mental disabilities while on active duty.  He also had traumatic brain injury (TBI).  He was in a hit-from-behind car accident, which caused his performance to decline.  

The applicant’s complete submission is at Exhibit A.

STATEMENT OF FACTS:

The applicant entered the Regular Air Force on 28 Jan 77.  

On 15 Dec 78, the applicant’s commander recommended him for a General (Under Honorable Conditions) discharge under AFR 39-12 for being “unsuitable” for military service.  The reasons for his recommendation were:  

	a.  On 8 Feb 78, while conducting a routine dormitory room inspection, the first sergeant discovered a container of marijuana in the applicant’s refrigerator.  For this, he received nonjudicial punishment (NJP) under the Uniform Code of Military Justice (UCMJ), Article 15, for wrongful possession of a controlled substance. 

	b.  On 28 Mar 78, two individual counselings were required to get the applicant to satisfactorily complete his assigned duties as Bay Orderly. 

	c.  On 2 Jun 78, the applicant received a Letter of Reprimand (LOR) for failure to maintain his quarters at Air Force standards. 

	d.  On 15 Sep 78, he received a LOR for failure to go to his proper place of duty at the time prescribed. 

	e.  On 18 Sep 78, the applicant again received NJP (UCMJ, Article 15) for failing to go to his proper place of duty at the time prescribed. 

	f.  On 19 Sep 78, the applicant received another LOR for failing to maintain his quarters at prescribed Air Force standards.  

	g.  The applicant had been counseled many times by his supervisors, the first sergeant, and his commander.  His performance had not improved and he made no attempt at corrective action.
 
On 6 Jun 79, the applicant received an Honorable discharge, and was credited with two years, four months, and nine days of total active duty service.  

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

AIR FORCE EVALUATION:

The AFBCMR Medical Advisor recommends denying the application.  The applicant’s petition is woefully delayed and risks denial based solely upon its untimely submission.  Further, even with application of reasonable doubt, none of the applicant’s service-connected medical conditions can be proven they were clinically unfitting and would have, or should have been, the cause for career termination via a Medical Evaluation Board (MEB), and separation or retirement under AFM 35-4.

The applicant and the Board are reminded the Military Department, which operates under Title 10 United States Code, compensates individuals whose careers are cut short due to a disqualifying medical condition which precludes performing the duties of the member’s office, grade, rank, and rating.  Under current policy unfitness must be based upon objective evidence and not upon opinion, speculation, or conjecture.  On the other hand, operating under a different set of laws, Title 38, U.S.C., the Department of Veterans Affairs (DVA) is authorized to offer compensation for any medical condition determined service incurred, without regard to its proven or demonstrated impact upon a former service member’s fitness to serve, the narrative reason for release from service, nor the length of time passed since leaving service.  This is the reason why an individual can be released from service for one reason and, sometime thereafter, receive compensation ratings from the DVA for medical conditions, e.g., PTSD and obstructive sleep apnea, which were found service-connected, but not proven militarily unfitting at the time of military service.  Moreover, the DVA is empowered to provide periodic assessments and care over the lifetime of the veteran.

The Medical Consultant recommends denial of the applicant’s petition to supplant his Honorable discharge with a Medical Retirement.  The complete advisory is at Exhibit C.

APPLICANT’S REVIEW OF AIR FORCE EVALUATION:

The Board sent a copy of the Air Force evaluation to the applicant on 27 Jan 17 for comment (Exhibit D), and the applicant replied multiple times during the period 17 Mar 17 through 29 May 18.  In his responses, the applicant submits background information on PTSD and sarcoidosis; reiterates his contention his exit physical exam was negligent through no fault of his own, and he was unfit for duty on 6 Jun 79 due to PTSD, major depressive disorder, HTN, TBI, sleep apnea, cervical DJD, IBS, and sarcoidosis; the reason for his late filing is his disabilities affect his memory and his ability to process information; he was inadvertently fired upon while on the firing range at Lackland AFB, TX resulting in PTSD; he was framed for marijuana possession; he was abused, tortured, handcuffed, and hit with blackjacks by corrupt redneck NCOs and Officers, and called the “N” word; the fact his reenlistment code nor “authority and reason for discharge” are not filled out on his DD Form 214, Certificate of Release or Discharge from Active Duty, is demonstration of an injustice; and, he is due monetary compensation for military sexual trauma (MST), sexual assault, or repeated threatening sexual harassment.  A complete compilation of the applicant’s multiple responses are at Exhibit E.

ADDITIONAL AIR FORCE EVALUATION:

The AFBCMR Psychiatric Advisor recommends denying the application.  The AFBCMR Medical Advisor summarized the applicant’s full case file for the Board, and the facts will not be reiterated here.  This psychiatric consultant appreciates the applicant’s disclosures and recognizes his efforts to facilitate the adjudication of his case by providing numerous letters to the Board with specific details of the abuse and injustice he endured during his time in the Air Force.  Unfortunately, the Liberal Considerations policy, specifically designed for the victims of PTSD, TBI or military sexual trauma (MST) applies to the veterans seeking upgrade of their discharge characterization and, therefore, is not applicable in the applicant’s case.  Upon careful review of all the available evidence, the evidence does not invalidate the appropriateness of the military discharge disposition even though after several decades the DVA granted service connection for the applicant’s psychiatric conditions. This psychiatric consultant fully concurs with the assessment and recommendation of the AFBCMR Medical Advisor to deny the applicant’s request.  

The complete advisory is at Exhibit F.

APPLICANT’S REVIEW OF THE ADDITIONAL AIR FORCE EVALUATION:

The Board sent a copy of the Air Force evaluation to the applicant on 12 Jul 18 for comment (Exhibit G), and the Board received a response on 8 Aug 18.  In his response, the applicant contends medical negligence is often, and in this case, the result of the inability of inexperienced doctors to diagnose health and mental health issues.  He is a victim of malpractice because treatment provided by the military was not up to the standard.  This is a travesty of justice.  The USAF took the coward’s way out.  He also submitted an article on medical malpractice, and a list of medical malpractice verdicts achieved in court.   The applicant’s complete response is at Exhibit H.

THE BOARD CONCLUDES:

1.  The application was not 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 error or injustice.  The Board concurs with the rationale and recommendation of AFBCMR Medical and Psychological Advisors and finds a preponderance of the evidence does not substantiate the applicant’s contentions.  The Board also notes 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, Air Force Board for Correction of Military Records (AFBCMR).  While the applicant asserts a date of discovery less than three years before the Board’s receipt of the application, the Board does not find the assertion reasonable.  The Board finds the application untimely and concludes it would not be in the interest of justice to excuse the delay.  Therefore, the Board recommends against correcting the applicant’s records.

THE BOARD RECOMMENDS:

The applicant be informed the application was not timely filed; it would not be in the interest of justice to excuse the delay; and the application will only be reconsidered upon receipt of relevant evidence not already considered by the Board.

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-2016-03452 in Executive Session on 22 Aug 18:

Chair
Member
Member

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

Exhibit A:	Application, DD Form 149, w/atchs, dated 23 Aug 16.
Exhibit B:	Military Human Resources Record (Excerpts) 
Exhibit C:	Advisory opinion, AFBCMR Medical Advisor, dated 24 Jan 17.
Exhibit D:	Notification of Advisory, SAF/MRBC to applicant, dated 27 Jan 17.
Exhibit E:	Applicant’s rebuttals, dated 17 Mar 17 through 29 May 18, w/atchs.
Exhibit F:	Advisory opinion, AFBCMR Psychological Advisor, dated 14 Jul 18 (sic).
Exhibit G:	Notification of Advisory, SAF/MRBC to applicant, dated 12 Jul 18.
Exhibit H:  Applicant’s rebuttal, undated.  

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