ADDENDUM TO RECORD OF PROCEEDINGS

IN THE MATTER OF:	DOCKET NUMBER: BC-2016-03871-2

xxxxxxxxxxxxxx	COUNSEL: NONE

	HEARING REQUESTED: NO

APPLICANT’S REQUEST

The Board reconsider his request to correct his DD Form 214, Report of Separation from Active Duty, to reflect a medical discharge/medical retirement.

His medical records be corrected to include the German hospital records.  (Board action not required as the applicant has failed to exhaust his administrative remedies with his Military Treatment Facility).

RESUME OF THE CASE

The applicant is a former Air Force staff sergeant, with credit for 3 years, 11 months, and 29 days of active service.  On 20 Nov 18, the Board considered and denied his request for a medical discharge/retirement, finding that the applicant had provided insufficient evidence of an error or injustice to justify relief and the prior request was not timely submitted.

For an accounting of the applicant’s original request and the rationale of the earlier decision, see the AFBCMR Letter and Record of Proceedings at Exhibit F.

On 24 Jul 20, the applicant requested  a medical discharge/retirement.  He again contends a medical discharge was recommended due to active duty injuries; however, errors in his medical records were not taken into consideration prior to discharge.  Specifically, his Army medical profile omits several diagnosed conditions from his German hospital records and a Medical Evaluation Board (MEB) should have been convened to evaluate his fitness for duty for his arm, shoulder, elbow, back and his Traumatic Brain Injury (TBI).  As new evidence, the applicant submits his medical records from treatment at a civilian medical facility in Ulm, Germany, US Army Medical Board recommendations for a permanent medical profile, and multiple physical profile forms.

The applicant’s complete submission is at Exhibit G.

APPLICABLE AUTHORITY/GUIDANCE

Per AFMAN 41-210, Tricare Operations And Patient Administration para 5.3 states in part that patients have the right, under HIPAA and the Privacy Act, to access their health records and request amendment if they think the documentation is in error.  Request to amend any part of the health record (electronic or paper) must be made in writing and be signed by the patient or authorized representative.  Patients who believe their medical records contain erroneous entries or information have several options to remedy perceived errors.  Several instructions, such as AFI 33-332 and AFI 36-2603, Air Force Board for Correction of Military Records (AFBCMR), allow patients to seek relief when they believe their medical records should be amended and the Military Treatment Facility (MTF) has denied their requests.

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 for Personnel and Readiness (USD P&R) 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.

On 4 Mar 21, the Board staff provided the applicant a copy of the consolidated clarifying guidance (Exhibit H).

AIR FORCE EVALUATION

The AFBCMR Psychological Advisor recommends denying the applicant’s request for a medical disability discharge due to Post-Traumatic Stress Disorder (PTSD) and Military Sexual Trauma (MST).  Per review of available post-discharge mental health records, the applicant intermittently sought mental health treatment at the Department of Veterans Affairs (DVA) since discharge and made statements of difficulty with forming/keeping relationships, jobs, and financial problems. During a session on 3 Oct 13 with a psychologist at the DVA, the applicant was informed that in spite of experiencing traumatic events, a motor vehicle accident in service and hurricane Katrina post-service, he did not meet full criteria for a diagnosis of PTSD and was told that most likely his symptoms are due to a personality disorder.  An additional DVA provider summarized his mental health services at another DVA clinic and stated “at his initial Primary Care Physician (PCP) evaluation, he did not complain of PTSD symptoms and his PCL was negative with a score of 32.  He had a number of contacts with personnel regarding his economic and housing issues.” Treatment notes dated 14 Aug 14 stated “his history is more suggestive of a personality disorder than major depression, and his behavior consistent with someone pursuing financial goals rather than treatment for psychiatric disorder.”  The applicant has requested multiple evaluations for PTSD since his discharge and multiple providers concurred that applicant did not meet criteria for PTSD through 2015 (38 years post discharge).  Based on the available records, it seems more likely than not the applicant’s condition developed post-service and was exacerbated by non-service related conditions.  The military’s Disability Evaluation System (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” in  time of separation and not based on post-service progression of disease or injury.  To the contrary, the Veteran’s Affairs (VA), 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 of time transpired since the date of discharge.  Liberal consideration is applied to the applicant’s request due to the contention of a mental health condition.  Since there is no evidence that he had any unfitting mental health conditions, his conditions/experiences do not outweigh his original discharge of completion of active service.  

The complete advisory opinion is at Exhibit I.

The AFBCMR Medical Advisor recommends denying applicant’s request to receive a de facto Medical Evaluation Board (MEB) and an unfit finding by a de facto Physical Evaluation Board (PEB).  Under current and likely previous written policies, a diagnosis does not automatically warrant discharge from military service; particularly when no permanent impediment to duty is expected or identified at the time.  None of the applicant’s providers elected to designate his upper extremities, lower extremities, rib or spine injuries, nor his concussion as permanently prohibiting worldwide qualification.  Under Title 10, United States Code, (U.S.C.), the Military Department offers compensation only for the medical conditions that cause career termination; and not based upon future progression of disease or injury.  To the contrary, operating under Title 38, U.S.C., the Department of Veterans Affairs (DVA) is authorized to offer compensation for any medical condition determined service-connected, without regard to its proven or demonstrated impact upon a former service member’s retainability, fitness to serve, narrative reason for discharge, or the length of time passed since date of discharge.  The DVA is also empowered to adjust disability ratings, as the level of impairment from a given medical condition may vary [improve or worsen] over the lifetime of the veteran.  Due to the profound passage of time between date of original injury, insufficient medical evidence at the time of discharge, and the lack of intervening temporal evidence during the one to two years following discharge, the Medical Advisor could not determine that, had the applicant undergone an MEB, he would have been found unfit and medically separated or retired.   

The complete advisory opinion is at Exhibit J.

APPLICANT’S REVIEW OF AIR FORCE EVALUATION

The Board sent a copy of the advisory opinions to the applicant on 7 Apr 21 for comment (Exhibit K), and the applicant replied on 7 May 21 and 28 May 21.  In his first response, the applicant states the primary reason he applied to the AFBCMR was to have his medical records corrected, his secondary reason was to grant him a medical retirement after his records were corrected.  He also states the Psychological Advisor failed to review evidence of wrongdoing by the Augsburg Army Hospital and failed to consider his missing German civilian hospital service records and his DVA records regarding his PTSD and MST.  As additional evidence, he submitted a board of appeals decision from the DVA dated 14 Feb 79 and a letter confirming errors with his German hospital records.  In his second response, the applicant states no consideration was provided regarding priority, liberal consideration, or invisible wounds for TBI, MST, and PTSD.  He again contends his civilian German medical records, the errors in the Augsburg Army Hospital records, and his VA medical records were not given proper consideration.

The applicant’s complete response is at Exhibit L and M.

ADDITIONAL AIR FORCE EVALUATION

The AFBCMR Psychological Advisor reviewed and considered the information in the applicant’s rebuttal statement and legal complaint. The applicant did not submit any new or additional evidence or records for consideration in either his rebuttal statement or legal complaint. While this psychological advisor acknowledges the applicant may not agree with the advisory opinion of this psychological advisor, the opinion rendered by this psychological advisor in the previous memorandum remains unchanged.  

The complete advisory opinion is at Exhibit N.

The AFBCMR Medical Advisor initially recommended denial of the applicant’s petition to receive a de facto MEB and medical separation or retirement.  This Medical Advisor cannot supplant, question, or explain the judgment of credentialed military providers most familiar with the applicant’s medical and administrative predicament in 1977; without resorting to speculation or conjecture.  However, due to the fact that the applicant had an approved separation date, rather than placing him on Medical Hold to pursue a MEB, or a delay [notwithstanding the profile expiration date was beyond his date of separation] in order to perform elective surgical removal of hardware, the consulting orthopedic surgeon advised that the record reflect that the fracture be documented as service-connected and for the applicant to pursue elective removal of orthopedic hardware at a post-service time of his convenience.  Accordingly, despite the previous “permanent” profile, the military medical provider placed on 30 days temporary restricted activities, but found him otherwise “medically qualified,” with restrictions, to proceed with the approved separation.   Should the Board determine that the applicant should have received a MEB, the Medical Advisor opines the preponderance of objective evidence indicates that it was the applicant’s right humeral fracture alone that was targeted as interfering with the applicant’s duty or was a potentially disqualifying medical condition; acknowledging that at one point, a provider documented “medical discharge in one month” for the very same condition.   Therefore, should the Board determine that applicant should have received an MEB, the record should be changed to reflect that he was not discharged under provisions of AFR 39-10, Enlisted Personnel, Administrative Separation of Airman, but he was found unfit by a PEB due to an open compound fracture of the humerus, status-post open reduction and internal plate fixation, with residual pain, that he was assigned a 20 percent disability rating, under analogized Veterans Administration Schedule for Rating Disabilities (VASRD) code 5299-5202, and that he was discharged under Authority of AFR 35-4, Physical Evaluation for Retention, Retirement, and Separation, by reason of Disability – Entitled to Severance Pay.

The complete advisory opinion is at Exhibit O.

APPLICANT’S REVIEW OF ADDITIOANAL AIR FORCE EVALUATION

The Board sent a copy of the advisory opinions to the applicant on 2 Jul 21 for comment (Exhibit P), and the applicant replied on 30 Jul 21.  In his response, the applicant contends his application has been repeatedly reviewed without addressing the errors in his military records, and denying a medical discharge/medical retirement, based only on the existing errors.  It is neither fair, or just, to assert that if a condition was not continually being treated, or to assert that if a condition is not shown in my military records when discharged, when no MEB was convened by my Air Force command to address the errors in my military records, then the condition does not exist.

The applicant’s complete response is at Exhibit Q.

FINDINGS AND CONCLUSION

After reviewing all Exhibits, the Board remains unconvinced the evidence presented demonstrates an error or injustice.  The Board concurs with the rationale and recommendation of the offices of primary responsibility and finds a preponderance of the evidence does not substantiate the applicant’s contentions.  Therefore, the Board recommends against correcting the applicant’s records.

RECOMMENDATION

The Board recommends informing the applicant the evidence did not demonstrate material error or injustice, and the Board will reconsider the application only upon receipt of relevant evidence not already presented.

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-2016-03871-2 in Executive Session on 19 May 21, 2 Jun 21, and 27 Sep 21:

, Panel Chair
, Panel Member
, Panel Member

All members voted against correcting the record.  The panel considered the following:

Exhibit F:	Record of Proceedings, w/ Exhibits A-E, dated 12 Dec 18.
Exhibit G:	Application, DD Form 149, w/atchs, dated 24 Jul 20.
Exhibit H:	Letter to applicant, SAF/MRBC (Clarifying Guidance), dated 4 Mar 21 
Exhibit I:	Advisory opinion, AFBCMR Psychological Advisor, dated 25 Mar 21. 
Exhibit J:	Advisory opinion, AFBCMR Medical Advisor, dated 31 Mar 21
Exhibit K:  Notification of advisory, SAF/MRBC to applicant, dated 7 Apr 21.
Exhibit L:	Applicant’s response, dated 7 May 21.
Exhibit M: Applicant’s response, dated 28 May 21.
Exhibit N:	Rebuttal Response, AFBCMR Psychological Advisor, dated 18 Jun 21.
Exhibit O: Rebuttal Response, AFBCMR Medical Advisor, dated 30 Jun 21.
Exhibit P: Notification of advisory, SAF/MRBC to applicant, dated 2 Jul 21.
Exhibit Q: Applicant’s response, dated 30 Jul 21.

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