RECORD OF PROCEEDINGS AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS IN THE MATTER OF: DOCKET NUMBER: BC-2013-00429 XXXXXXX COUNSEL: NONE HEARING DESIRED: YES ________________________________________________________________ APPLICANT REQUESTS THAT: His general (under honorable conditions) discharge from the Air National Guard be changed to a medical retirement. ________________________________________________________________ APPLICANT CONTENDS THAT: He should have been medically retired from the New York Air National Guard (NY ANG) instead of being administratively discharged. His unit ignored his medical conditions even after being given medical documentation and treatment records. His conditions originated from service during Operations IRAQI FREEDOM 1 and 2. He was given a general discharge to punish him morally and financially. In support of his appeal, the applicant provides copies of Department of Veterans Affairs (DVA) decisional documents and various other documents. The applicant’s complete submission, with attachments, is at Exhibit A. ________________________________________________________________ STATEMENT OF FACTS: On 18 Jul 07, the applicant enlisted in the NY ANG, in the grade of staff sergeant, as a prior-service enlistee. On 19 May 08, the applicant filed a claim with the Department of Veterans Affairs (DVA) for service-connected disability compensation under Title 38. On 27 Oct 08, the DVA awarded him 50 percent for major depressive disorder, anxiety, insomnia, and depression. In addition, the applicant was awarded 10 percent for tinnitus. On 26 Jan 09, the applicant was rated 10 percent for Traumatic Brain Injury (TBI). The DVA awarded the applicant a total combined compensable disability rating of 60 percent. The unit commander recommended he be separated from the ANG for unsatisfactory participation. According to a letter from the staff Judge Advocate, dated 31 May 12, the applicant was absent from twenty-nine (29) periods in a twelve month timeframe. Further, after the Letter of Notification (LON) was served, the applicant continued to remain Absent without Leave (AWOL) and acquired an additional fourteen (14) periods of absence. The applicant provided no documentation to explain his continued absence. Although he communicated with his detailed military counsel that he wished to submit matters in extenuation and mitigation, he did not make contact with his military counsel for several months despite efforts to contact him. On 15 Aug 12, the applicant was discharged for unsatisfactory participation, with service characterized as general, under honorable conditions. He was credited with 5 years, 8 months, and 28 days of service during this period. ________________________________________________________________ THE AIR FORCE EVALUATION: NGB/SGPF recommends denial, noting the applicant has failed to provide any documentation that he is eligible for a medical retirement. Furthermore, there is substantial evidence to suggest the applicant failed to disclose his prior history of potentially disqualifying medical conditions that would support discharge action in accordance with ANGI 36-2002, Enlistment and Reenlistment in the Air National Guard and as a Reserve of the Air Force. SGPF notes that there is no record of the applicant disclosing his prior medical history to the NY ANG, or to HQ ANG/SG for waiver consideration and entrance into the ANG. The only Line of Duty Determination (LOD) included in the AFBCMR package is from Sep 04 while the applicant was serving with the United States Army. A review of the DVA Rating decisional documents dated 26 Jan 09, determined service connection, Gulf War, while serving with the US Army from 1998-2006. The applicant agreed to the following remarks contained in his original Enlistment/Reenlistment document, dated 18 Jul 07: “I FULLY UNDERSTAND THAT MY ENLISTMENT INTO THE AIR NATIONAL GUARD IS CONTINGENT UPON FINAL APPROVAL OF MY PHYSICAL EXAMINATION. ANY MEDICAL FINDINGS OF AN EXISTING PRIOR TO SERVICE (EPTS) CONDITION OR ANY OTHER DISQUALIFYING MEDICAL CONDITION UNLESS WAIVED PURSUANT TO PARAGRAPH 1.3. OF ANGI 36- 2002, RENDERS THIS ENLISTMENT CONTRACT NULL AND VOID AND WILL RESULT IN MY INELIGIBILITY TO COMPLETE ENLISTMENT INTO THE ANG.” On 31 May 12, the SJA recommended the applicant be discharged, with service characterized as general, (under honorable conditions). The basis for the discharge action was AFI 36- 3209, paragraph 3.13.2, Unsatisfactory Participation. The complete SGPF evaluation, with attachments, is at Exhibit C. ________________________________________________________________ APPLICANT'S REVIEW OF THE AIR FORCE EVALUATION: He finds the evaluation inflammatory and disheartening. He disclosed all of his medical data, not once, but twice through his chain of command. He has provided all of the documentation that he received from the DVA. He questions how his condition could be a pre-existing condition when he had no knowledge of his conditions when he joined the ANG. The applicant’s complete response is at Exhibit E. ________________________________________________________________ THE BOARD CONCLUDES THAT: 1. The applicant has not 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 warranting a change of the applicant’s general discharge to a medical retirement. Although the applicant claims he presented medical documentation and treatment records to his unit, we note that other than his medical records documenting issues that predate his Air Force service, he has not provided sufficient evidence of unfitting medical conditions that served as the basis for cutting short his Air Force career. Further, we also note that he failed to present matters in his behalf in response to the commander’s administrative discharge action. Therefore, we agree with the opinion and recommendation of the OPR and adopt the rationale expressed as the primary basis for our decision that the applicant has failed to sustain his burden of having suffered either an error or injustice. Additionally, even if we accept that the applicant disclosed all his medical information to his chain of command prior to his enlistment in the ANG, we would point out that since the applicant’s conditions rated by the DVA were during periods of service with the US Army, they would be considered preexisting conditions and can only be rated to the extent they were service-aggravated by his service in the ANG. The applicant has not provided sufficient evidence in support of this assertion. If the applicant believes the conditions rated by the DVA should serve as the basis for a medical retirement, it would appear this is an issue that should be appealed to the Army Board for Correction of Military Records (ABCMR) or the Physical Disability Board of Review (PDBR). In view of the above, we find no basis to favorably consider the applicant’s request. 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 our understanding of the issue(s) involved. Therefore, the request for a hearing is not favorably considered. ________________________________________________________________ THE BOARD DETERMINES THAT: The applicant be notified the evidence presented did not demonstrate the existence of material error or injustice; the application was denied without a personal appearance; and 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-2013-00429 in Executive Session on 15 Oct 13, under the provisions of AFI 36-2603: The following documentary evidence was considered: Exhibit A. DD Form 149, dated 21 Jan 13, w/atchs. Exhibit B. Applicant's Available Master Personnel Records. Exhibit C. Letter, NGB/SGPF, dated 1 Mar 13. Exhibit D. Letter, SAF/MRBR, dated 15 Mar 13. Exhibit E. Letter, Applicant, undated. 4 5