RECORD OF PROCEEDINGS AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS IN THE MATTER OF: DOCKET NUMBER: BC-2013-03047 XXXXXXX COUNSEL: NONE HEARING DESIRED: NO ________________________________________________________________ APPLICANT REQUESTS THAT: 1. She be medically retired with at least a compensable disability rating of 30 percent. 2. Her Line of Duty (LOD) Determination be found “In the Line of Duty.” ________________________________________________________________ APPLICANT CONTENDS THAT: On 29 Mar 13, she was discharged without her LOD being finalized. On 14 Mar 13, she requested a resignation due to personal reasons related to a sexual assault by her Military Training Leader (MTL) while attending technical school training. Prior to her discharge, she was informed that her LOD was approved and finalized. However, subsequent to her discharge, on or about 29 May 13, her former commander notified her that her LOD had not been finalized. She does not wish to return to military status to continue the LOD process. She is seeking treatment weekly and does not feel that she can be successful in completing her treatment and fulfill her military obligation. Finding out that her assailant was court-martialed, she thought that she could finally move forward with her life. But finding out that her LOD was not approved prior to her discharge continues to add stress and aggravation to her life. In support of her appeal, the applicant provides a personal statement, copies of a letter from her former deputy maintenance group commander and electronic mail correspondence. The applicant’s complete submission, with attachments, is at Exhibit A. ________________________________________________________________ STATEMENT OF FACTS: On 27 May 10, the applicant enlisted in the West Virginia Air National Guard (WVANG). On 31 May 11, she entered her Initial Active Duty for Training (IADT) for basic military training and technical school training. On 23 Dec 11, she was released from active duty with a reason for separation of completion of IADT. She was credited with 6 months and 23 days of active duty service. On 3 Jan 13, an LOD was initiated and the applicant was diagnosed with Post Traumatic Stress Disorder and Depressive Disorder – Not Otherwise Specified (NOS). On 29 Mar 13, the applicant was relieved from her assignment and discharged from the WVANG. ________________________________________________________________ AIR FORCE EVALUATION: NGB/SGPA recommends relief be granted with a LOD finding of “In the Line of Duty.” SGPA could not recommend a disability rating or retirement. On 3 Jan 13, an LOD was initiated by the applicant’s medical provider. The LOD indicated that the condition stemmed from an incident that happened in the fall of 2011 while the applicant was attending initial technical training for her Air Force Specialty Code (AFSC). It is unclear from the documentation provided when the applicant reported the medical condition. On 14 Mar 13, the applicant signed a conditional release with the 130th Force Support Squadron (FSS) and, on 29 Mar 13, she was honorably discharged. On 22 Mar 13, the LOD was completed at the Wing level and found to be “In the Line of Duty.” SGPA notes that LODs that have “questionable circumstances,” disease processes and/or Existed Prior to Service (EPTS) normally require finalization by NGB/SG and NGB/A1. In accordance with (IAW) AFI 36-2910, Line of Duty (Misconduct) Determination, para 2.2.3 members should not be separated while an LOD determination is pending. The LOD was received by NGB/SG after the applicant was separated from the military. However, SG states that the determination would have been finalized as "In the Line of Duty." The applicant is also requesting a 30 percent disability with a military retirement. NGB/SG is not able to determine a disability rating and/or a military retirement. However, the applicant may receive care and treatment and apply for a disability rating through the Department of Veterans Affairs (DVA). The complete SGPA evaluation is at Exhibit C. The BCMR Medical Consultant recommends a finding of Post- Traumatic Stress Disorder (PTSD), in line of duty, that her PTSD was unfitting for continued military service, and that she be placed on the Temporary Disability Retired List (TDRL) with a compensable disability rating of 50 percent, under VASRD Code 9411, effective 29 Mar 13. The Medical Consultant notes that the military 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 time of separation and not based on future occurrences. Department of Defense Instruction (DoDI) 1332.32, Physical Disability Evaluation, Enclosure 3, Part 3, Standards For Determining Unfitness Due To Physical Disability Or Medical Disqualification, paragraph E3.P3.2.1, reads:" A Service member shall be considered unfit when the evidence establishes that the member, due to physical disability, is unable to reasonably perform the duties of his or her office, grade, rank, or rating (hereafter called duties) to include duties during a remaining period of Reserve obligation." In the case under review, there was at least one documented recommendation made to remove the applicant from her primary duties due to PTSD and Depressive Disorder. Despite the absence of necessary documentation to optimally adjudicate the applicant's case, the facts remain that she was diagnosed with a disqualifying medical condition and was restricted from worldwide qualification for an indeterminate period [beginning on or about 28 Nov 12]; but apparently chose to separate "for personal reasons" and was allowed to execute the separation prior to higher-level review of her LOD [likely without her knowledge or the knowledge of her local medical unit and personnel office]. It is not known if the applicant's Guard unit medical provider was ever aware of her election to separate and it is not known whether the applicant presented for follow- up care [documentation not supplied] at her Guard medical unit following her 28 Nov 12 consultation at the mental health clinic. The Medical Consultant is sensitive to the trauma reportedly experienced by the applicant, but has been challenged to justify a disability retirement, based upon a report of a criminal act [conviction documentation not supplied] that occurred one year previously, with very limited medical documentation to indicate existence of a long-standing duty impairment or one so severe as to warrant termination of military service at the time of her release from military service; particularly in the context of her voluntary release from service for Miscellaneous Reasons. The applicant would like the Board to believe that she chose to be discharged "due to personal reasons related to a sexual assault issue." Thus, the question confronting the Medical Consultant and the Board is to determine whether the failure to retain the applicant until completion of her LOD and the single progress note of 28 Nov 12, showing the applicant to be diagnosed with PTSD and Depressive Disorder, collectively warrant rescinding her elective separation under AFI 36-3209; and supplanting with an unfit finding and a medical retirement due to PTSD. The applicant's Deputy Commander appears to support such an action, as she characterized her current basis for separation as “incorrect.” In view of the current evidence and support of the applicant's Deputy Commander, the Medical Consultant recommends rescinding the applicant's separation for Miscellaneous Reasons and directing her placement on the TDRL with a 50 percent disability rating due to PTSD, IAW 38 C.F.R, Section 4.129, effective 29 Mar 13, for a period of six months following which a reevaluation will be conducted to determine if a change in disability rating is warranted. Since six months has already passed since the applicant's date of separation, the applicant should receive a mental health re-evaluation by a psychiatrist or PhD-level psychologist at the earliest available date, in coordination with the applicant’s availability. In conducting the clinical evaluation, the evaluating provider should utilize the Department of Veterans Affairs Disability Benefits Questionnaire (DBQ) for mental disorders, as this will facilitate any subsequent disability rating determinations. The assessment should conclude with an Axis V diagnostic arrangement, to include the applicant's level of impairment in social and industrial adaptability and her Global Assessment of Functioning. When completed this information should be promptly forwarded to the AFBCMR Medical Consultant for a recommended final disposition of the applicant's military service. The complete BCMR Medical Consultant’s evaluation is at Exhibit D. ________________________________________________________________ APPLICANT'S REVIEW OF AIR FORCE EVALUATION: Copies of the Air Force evaluations were forwarded to the applicant on 12 Nov 13 for review and comment within 30 days. As of this date, no response has been received by this office (Exhibit E). ________________________________________________________________ THE BOARD CONCLUDES THAT: 1. The applicant has exhausted all remedies provided by existing law or regulations. 2. The application was timely filed. 3. Sufficient relevant evidence has been presented to demonstrate the existence of error or injustice warranting corrective action. The NGB office of primary responsibility and the BCMR Medical Consultant has adequately addressed the issues presented by the applicant and we are in agreement with their opinions and recommendations. Therefore, we recommend the applicant’s record be corrected as indicated below. ________________________________________________________________ THE BOARD RECOMMENDS THAT: The pertinent military records of the Department of the Air Force relating to APPLICANT, be corrected to show that: a. On 28 March 2013, she was found unfit to perform the duties of her office, rank, grade, or rating by reason of physical disability, incurred while she was entitled to receive basic pay; the diagnosis in her case was Post Traumatic Stress Disorder, VASRD Code 9411; the compensable percentage was 50 percent; the degree of impairment is temporary; the disability was not due to intentional misconduct or willful neglect; the disability was not incurred during a period of unauthorized absence; and that the disability was not received in the line of duty as a direct result of armed conflict or caused by an instrumentality of war. b. She was not honorably discharged from the West Virginia Air National Guard on 29 March 2013, but, on 30 March 2013, her name was placed on the Temporary Disability Retired List (TDRL). Since this record correction is retroactive to 2013 she is now due for a TDRL re-evaluation under 10 U.S.C. 1210 and AFI 36-3212. Such re-evaluation must occur as soon as practicable and be performed by a psychiatrist or PhD-level psychologist. The reevaluation must conclude with a 5-Axis diagnosis and the level of impairment in civilian social and industrial adaptability. The applicant may alternatively utilize an existing current [2014] evaluation from the Department of Veterans Affairs that meets the requested diagnostic requirements. The results of the re-evaluation must be forwarded to the Air Force Board for Correction of Military Records at the earliest practicable date, so that the Board may complete final adjudication of this case. ________________________________________________________________ The following members of the Board considered AFBCMR Docket Number BC-2013-03047 in Executive Session on 24 April 2014, under the provisions of AFI 36-2603: , Chair , Member , Member All members voted to correct the records, as recommended. The following documentary evidence was considered: Exhibit A. DD Form 149, dated 15 Jun 13, w/atchs. Exhibit B. Applicant's Master Personnel Records. Exhibit C. Letter, NGB/SGPA, dated 3 Oct 13. Exhibit D. Letter, BCMR Medical Consultant, dated 7 Nov 13. Exhibit E. Letter, SAF/MRBR, dated 12 Nov 13. 1 2