RECORD OF PROCEEDINGS AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS IN THE MATTER OF: DOCKET NUMBER: BC-2010-03385 COUNSEL: NONE HEARING DESIRED: NO _________________________________________________________________ APPLICANT REQUESTS THAT: His Air National Guard (ANG) retirement order be revoked and he be allowed to be evaluated by a Medical Evaluation Board (MEB) and Physical Evaluation Boards (PEB) due to his diagnosis of combat-related Post Traumatic Stress Syndrome (PTSD) by the Department of Veterans Affairs (DVA). _________________________________________________________________ APPLICANT CONTENDS THAT: He served a harder mission than expected while being deployed for 90 days to Afghanistan as a Chaplain Assistant. He was assigned to the Army and spent considerable hazardous duty outside the wire. Upon his return to the Continental United States (CONUS) and his home unit, he had great difficulties with readjustment and PTSD. He is still receiving care and treatment from both the DVA hospital and local civilian doctors. In support of his appeal, the applicant provides copies of his DD Form 214, Certificate of Release or Discharge from Active Duty; Report of Separation and Record of Service; his Reserve Retirement Order; Informal PEB Findings and Recommended Disposition; Assignment Limitation Code (ALC) memorandums; electronic communications; Physical Profile Serial Reports; and DVA Rating Decisions. The applicant’s complete submission, with attachments, is at Exhibit A. _________________________________________________________________ STATEMENT OF FACTS: The available record shows the applicant served as a technical sergeant (E-6) in the Vermont Air National Guard (ANG). Although he was a Security Forces member, he volunteered to serve as a Chaplain’s Assistant for a 90-day deployment to Afghanistan in 2004. Reserve Order EK-3256, dated 9 April 2009, indicates the applicant was relieved from his assignment with the Air National Guard and transferred to the Retired Reserve Section effective 24 July 2009 for “15 to < 20 years satisfactory service” due to medical disqualification. His NGB Form 22, Report of Separation and Record of Service, indicates he has 20 years, 1 month, and 23 days total service for pay with 18 years, 1 month, and 3 days total service for retired pay. The remaining relevant facts, extracted from the applicant’s military service records, are contained in the BCMR Medical Consultant’s evaluation at Exhibit B. On 6 July 2011, the applicant requested his appeal to the AFBCMR be administratively closed to allow him sufficient time to gather witness statements and supporting documentation. As requested, the applicant’s case was administratively closed effective 16 August 2011. On 29/30 November 2011, the applicant requested to reopen his case and provided a character statement with his rebuttal. _________________________________________________________________ AIR FORCE EVALUATION: The BCMR Medical Consultant recommends denial. The BCMR Medical Consultant states that following the applicant’s deployment to Afghanistan, he was evaluated by a Vermont ANG physician on 6 February 2005. The interview indicated the applicant disclosed he was unsure of his job situation and had difficult thoughts regarding his military deployment. During the interview, the applicant also disclosed a long history of employment difficulties related to being terminated from a civilian job after returning from active duty. The evaluating physician concluded the applicant met the criteria for an Axis I diagnosis of Major Depressive Disorder; and that he did not meet the full criteria for PTSD, but that he did have “PTSD symptoms of avoidance, numbing, and recurring thoughts.” The psychiatrist determined that contributory Axis IV factors consisted of “stress form finances, military memories, job difficulty, and a legal battle.” The applicant was prescribed the antidepressant Zoloft, 50 milligrams, to be taken once per day with plans to “continue talk therapy and marriage counseling.” Evidence shows that the applicant was placed on an “S4” restricted duty profile (non-worldwide qualified) initially in 2006, which was followed by an MEB due to Depression associated with PTSD, as well as Obstructive Sleep Apnea (OSA). However, on 10 March 2006, the Informal PEB determined that neither the applicant’s Depression nor his OSA prevented him from reasonably performing his duties of his office, grade, rank, or rating; and, found him fit and recommended his return to duty. He was subsequently placed on an ALC “C” limiting his assignments to CONUS, Alaska, Hawaii, and U.S. Territories. As a result, with the applicant’s return to duty status, his previous “S4” profile was changed on 5 May 2006 to an “S3” profile, with the caveat that he would require re-evaluation at the of expiration of the profile “waiver” (3 May 2008) for a reassessment of his medical status. The record shows that on 8 July 2008, the applicant was retained under ALC-C status for an additional period, with a new date of expiration and/or reassessment of 31 August 2009. Evidence of a medical reassessment is not available. Reserve Order, dated 9 April 2009, announced the projected release of the applicant from his current assignment with subsequent assignment to the Retired Reserve Section and placement on the Reserve Retired List, effective 24 July 2009. The applicant’s NGB Form 22 reflects that he achieved 20 years, 1 month, and 23 days Total Service for Pay. The authority and reason for release from service is recorded as “AFI 36-3209, paragraph 3.14, Physical Disqualification” with the Separation Program Designator Code of “SFJ.” The BCMR Medical Consultant indicates that is not known if the intent of the Informal PEB, by returning the applicant to duty, was to retain him only to get him to 20 years of service, as he appears to have requested. Other than the applicant’s self- reported worsening of the PTSD, as noted in the DVA documentation, there is no objective service medical evidence supplied to reflect that the applicant’s PTSD worsened to the extent that he could no longer reasonably perform the duties of his office, grade, rank, or rating. If the applicant had underwent a repeat MEB or PEB within 12 months of a mandatory separation date, or expiration of term of enlistment, he would have been presumed fit for release from military service; and would have been returned to duty. To retain a member with a disqualifying medical condition, then to later release him or her from military service for the very reason of physical disqualification upon termination of a waiver, without giving him or her the opportunity for a re-evaluation by an MEB or PEB, appears to counter the purpose of the Disability Evaluation System (DES). At the same time, for a service member to enjoy retention, with a waiver (3 years) with a disqualifying medical condition, to the point of achieving retirement eligibility; then to retroactively and implicitly ask for a medical retirement in lieu of transfer to the Retired Reserve List does not appear to constitute an error or injustice. The Vermont ANG acted within their authority in effecting the applicant’s release from his assignment and his transfer to the Retired Reserve List. The DVA has awarded the applicant compensation for his PTSD, OSA, and other conditions. However, the military departments, operating under Title 10, United States Code (USC), only offer compensation for the illness or injury that is the cause for career termination; and then only to the degree of impairment present at the “snap shot” time of final military disposition. On the other hand, operating under a different set of laws (Title 38, USC), the DVA is authorized to offer compensation for any medical condition determined service-incurred or aggravated, without regard to its demonstrated impact upon a service member’s retainability, fitness to serve, or narrative reason for release form military service. Thus, the two laws are not meant to be duplicative, but assure that proper care, support, and compensation are provided over the lifetime of our veterans. It is the BCMR Medical Consultant’s opinion that there is insufficient evidence to definitively determine the existence of a material error or injustice. The complete BCMR Medical Consultant’s evaluation is at Exhibit C. _________________________________________________________________ APPLICANT'S REVIEW OF AIR FORCE EVALUATION: Upon his return back home from his 2004 deployment, he has been treated for service connected PTSD, OSA, and chronic lower back pain. He has been fully cooperative with the DVA and the Vermont ANG clinic staff providers. He was removed from duty status after being profiled with “S4T” and “P4T.” As a result, he was unable to earn any income or perform any paid military training. He was not able to apply for unemployment because he was not considered able to work or otherwise support his family. When he lost employment, he was not helped, but made to feel like he deserved the treatment he received after being terminated from his civilian job. Throughout all of this he had to go through an MEB. He was not provided any assistance, offered to be placed on medical hold, or told of his rights and benefits even though he repeatedly asked for advice and help. Even though he should have been placed on medical hold while still on active duty orders, nobody within his chain of command told him about this option or offered assistance. He eventually has been awarded 92 percent disability for service connected disabilities from the DVA and is being paid 100 percent disability due to his unemployability. He has complied with all conditions for treatment until he was denied his request to remain in the military. The applicant’s complete rebuttal, with attachment, is at Exhibit D. _________________________________________________________________ THE BOARD CONCLUDES THAT: 1. The applicant has exhausted all remedies provided by existing law or regulations. 2. The application was timely filed. 3. Insufficient relevant evidence has been presented to demonstrate the existence of error or injustice. We took notice of the applicant's complete submission in judging the merits of the case; however, we agree with the opinion and recommendation of the BCMR Medical Consultant and adopt his rationale as the basis for our conclusion that the applicant has not been the victim of an error or injustice. We did not find evidence to support a revocation of his retirement order to undergo an evaluation by a MEB and PEB and our review of the evidence indicates his conditions were properly determined. Neither the applicant’s depression nor his OSA prevented him from reasonably performing his duties as demonstrated by his return to duty with limiting assignments. The fact the DVA has awarded him a disability rating for his PTSD, OSA and chronic lower back pain is not a basis to revoke his retirement. The military service disability system operates under Title 10 and the DVA disability system operates under Title 38. They are complementary systems not intended to be duplicative, and the fact that the DVA may grant certain service connected compensation ratings does not establish eligibility for similar actions from the Air Force. Therefore, in the absence of evidence to the contrary, we find no basis to recommend granting the relief sought in this application. _________________________________________________________________ THE BOARD DETERMINES THAT: The applicant be notified that the evidence presented did not demonstrate the existence of material error or injustice; that the application was denied without a personal appearance; and that the application will only be reconsidered upon the submission of newly discovered relevant evidence not considered with this application. _________________________________________________________________ The following members of the Board considered AFBCMR Docket Number BC-2010-03385 in Executive Session on 17 July 2012, under the provisions of AFI 36-2603: The following documentary evidence was considered in connection with AFBCMR Docket Number BC-2010-03385: Exhibit A. DD Form 149, dated 17 Aug 10, w/atchs. Exhibit B. Letter, BCMR Medical Consultant, dated 8 Jun 11. Exhibit C. Letter, SAF/MRBR, dated 14 Jun 11. Exhibit D. Letter, Applicant, dated 25 Jul 11, w/atch.