RECORD OF PROCEEDINGS AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS IN THE MATTER OF: DOCKET NUMBER: BC-2014-00825 COUNSEL: NONE HEARING DESIRED: NO APPLICANT REQUESTS THAT: 1. He be medically discharged. 2. His Referral Officer Performance Report (OPR) closing 29 Jun 10 be removed. 3. He be reinstated and his eligibility for the Calendar Year 2010 (CY10) Reduction-In-Force (RIF) board be removed. 4. His separation code of LCC (RIF) be removed. 5. A Medical Evaluation Board (MEB) and Physical Evaluation Board (PEB) be ordered to determine if the reason for separation should have been a disability separation rather than RIF. 6. He be placed back in an Assignment Availability Code (AAC) of 17 and rendered ineligible for the CY10 RIF board. APPLICANT CONTENDS THAT: He believes a review of the procedures used by the wing during the nine-month investigation which led to his dismissal through the CY10 RIF board. His 4th Amendment rights and guidance from the Secretary of the Air Force (SECAF) in AFI 36-2406, Officer and Enlisted Evaluation Systems and AFI 36-3003, Military Leave Program, were violated. His should not have been eligible for the CY10 RIF board based on the ongoing investigation, In Accordance With (IAW) Personnel Service Delivery Memorandum (PSDM) 10-20, Section 9. Charges were never preferred against him and his command requested and received grand jury subpoenas from the civil court which was used to open an investigation. He was moved in and out of AAC code 17 multiple times as a convenience of his command to ensure that his assignment was cancelled so he would be eligible for the CY10 RIF board. Unsupported and unreliable allegations were noted in his contested report, which also noted that he was Absent Without Leave (AWOL); however, these comments were simply not true and unsubstantiated. The applicant provides no rationale as to why his failure to timely file should be waived in the interest of justice. The applicant’s complete submission, with attachments, is at Exhibit A. STATEMENT OF FACTS: On 5 Jun 04, the applicant was commissioned as a second lieutenant. On 4 Jul 04, the applicant entered active duty in the Regular Air Force. The applicant received a referral report rendered for the period 11 Sep 09 – 29 Jun 10. The report cited several referral comments to include: violating AFI 36-3003; not in the local area upon completion of paternity leave and start of annual leave; falsifying an official statement; being engaged in an unprofessional relationship; disobeying a lawful order and being AWOL. On 1 Mar 11, the applicant was honorably released from active duty with a reason for separation of reduction in force, in the grade of captain. He was credited with 6 years, 7 months, and 28 days of active service during this period. AIR FORCE EVALUATION: AFPC/DPSID recommends denial of the applicant’s request to remove the referral report closing 29 Jun 10. DPSID based their findings on a four year delayed request; insufficient evidence and the presumed legitimacy of the original crafting of the OPR. The applicant has not provided evidence to show that the report was unjust or inaccurate as written. The applicant received a referral OPR for violating AFI 36-3003; not in the local area upon completion of paternity leave and start of annual leave; falsifying an official statement; being engaged in an unprofessional relationship; disobeying a lawful order and being AWOL. Evaluators are obliged to consider such incidents, their significance, and the frequency with which they occurred in assessing performance and potential. Only the evaluators know how much an incident influenced the report. In Accordance With (IAW) AFI 36-2406, paragraph 1.3.1., evaluators are strongly encouraged to comment in performance reports on misconduct that reflects a disregard of the law, whether civil law or the Uniform Code of Military Justice (UCMJ), or when adverse actions such as Article 15, Letters of Reprimand (LOR), Admonishment (LOA), or Counseling (LOC), or placement on the Control Roster (CR) have been taken. The rating chain appropriately chose to comment and document on the underlying wrongdoing, which caused the report to be referred to the applicant for comments and consideration to the next evaluator. The applicant provided no evidence within his case to show that the referral comment on the OPR was inaccurate or unjust; therefore, we contend that the inclusion of the referral comment on the OPR was appropriate and within the evaluator's authority to document given the incident. Moreover, a final review of the contested evaluation was accomplished by the additional rater and a subsequent agreement by the reviewer/commander served as a final "check and balance" in order to ensure that the report was given a fair consideration in accordance with the established intent of the current Officer and Enlisted Evaluation System in place. We conclude that the contested report was proper and completed in accordance with all applicable Air Force policies and procedures. Consequently, we find this element of the applicant's appeal to be without merit. In summary, DPSID does not believe the applicant has provided sufficient substantiating documentation or evidence to prove his assertions that the contested evaluations were rendered unfairly or unjustly, and has merely offered his view of events in the light that is most beneficial to him. Air Force policy is that an evaluation report is accurate as written when it becomes a matter of record. Additionally, it is considered to represent the rating chain's best judgment at the time it is rendered. To effectively challenge an evaluation, it is necessary to hear from all the members of the rating chain-not only for support, but also for clarification/explanation. The applicant has failed to provide any information from all the rating officials on the contested report. It is determined that the report was accomplished in direct accordance with all applicable Air Force policies and procedures. The complete DPSID evaluation is at Exhibit C. AFPC/DPAPP recommends denial of the applicant’s request to remove the AAC code 17. DPAPP notes that after a review of the applicant’s military records, they could not determine at any time was he placed on an AAC code 17. However, they did find that he was placed on AAC code 15, Court-Martial or Civilian Criminal Court and AAC code 21, Commander Directed Hold, from the available data. Further, both AAC codes were applied properly to the applicant and neither exceeded the time limits of the AFI. The complete DPAPP evaluation is at Exhibit D. AFPC/DPSOR recommends denial of a change to the separation code, narrative reason for separation and character of service. DPSOR notes the procedures surrounding the applicant's separation were conducted in accordance with established directives and are correct as indicated on the applicant's DD Form 214. DPSID found no evidence of an error or injustice in the applicant's discharge processing. The applicant was in the rank of captain with a core Air Force Specialty (AFS) of 38F and a Total Federal Commission Service Date (TFCSD) of 2004, which made him eligible for the CY10 RIF board. The applicant's record met the RIF board and he was not selected for retention. The applicant was subsequently discharged with a Mandatory Separation Date (MSD) of 1 Mar 11 in accordance with the PSDM directive. The base separations authority directed the applicant receive an honorable service characterization. The RIF board convened and reviewed the applicant's entire record in accordance with established guidelines and procedures. The applicant had the opportunity to submit a letter to the board to address any circumstances and/or highlight any accomplishments in his record. The applicant contends that he was under investigation which made him ineligible to meet the CY10 RIF board. This is an incorrect assessment. PSDM 10-20, paragraph 9, states “Officers notified by their commander (verbally or in writing) that they are under investigation, pending administrative discharge or court-martial charges, on appellate leave, or UCMJ action is under consideration or pending are eligible. However, UCMJ and administrative actions take priority over this program. Once pending administrative, non-judicial and/or judicial actions are resolved, officers may subsequently be discharged from the Air Force IAW guidelines of this program.” Therefore, the applicant remained eligible to meet the CY10 RIF board even if he had been under investigation. The complete DPSOR evaluation is at Exhibit E. The BCMR Medical Consultant recommends denial; noting the applicant has not met the burden of proof of an error or injustice that warrants the desired MEB/PEB review nor a change in established reason for discharge to medical. In addressing the applicant’s implicit desire for a medical separation/retirement, 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 or progression of disease. In the case under review, although the supplied record indicates the applicant was exposed to mortar fire during a deployment in 2008 and experienced headaches, it could not be established that the applicant was unable to reasonably perform his military duties due to one or more medical conditions during his military service or at the time of his release from active duty order; as would be further documented in service treatment records, performance reports, and/or profile restrictions imposed prohibiting worldwide qualification. Moreover, under paragraph E3.P3.3.4, Cause and Effect Relationship, “Regardless of the presence of illness or injury, inadequate performance of duty, by itself, shall not be considered as evidence of unfitness due to physical disability unless it is established that there is a cause and effect relationship between the two factors. Based upon the limited supplied service medical evidence, the Medical Consultant found no medical condition that established, [or should have], a cause and effect relationship with the termination of the applicant’s service. Although the applicant has been assigned disability compensation for a number of illnesses or injuries by the Department of Veterans Affairs, again, none have been shown to have interfered with his military service to the extent, that warranted placement on Medical Hold for an MEB and processing through the DES. On the other hand, operating under a different set of laws (Title 38, U.S.C.), with a different purpose, the Department of Veterans Affairs (DVA) is authorized to offer compensation for any medical condition determined service incurred, without regard to [and independent of] its demonstrated or proven impact upon a service member’s fitness for continued service or narrative reason for release from military service; nor the intervening or transpired period since the date of separation. With this in mind, Title 38, U.S.C., which governs the DVA compensation system, was written to allow awarding compensation ratings for any condition with a nexus with military service. This is the reason why an individual can be found fit for release from active military service for one reason and yet sometime thereafter receive compensation ratings from the DVA for a conditions found service-connected, but which were not proven militarily unfitting during the period of active service, e.g., the applicant’s compensation for PTSD. The DVA is also empowered to conduct periodic re-evaluations for the purpose of adjusting the disability rating awards (increase or decrease) as the level of impairment from a given service connected medical condition may vary (improve or worsen, affecting future employability) over the lifetime of the veteran. The complete BCMR Medical Consultant evaluation is at Exhibit F. AFPC/JA recommends denial. JA notes the application was not filed within the requisite time limits, the applicant has offered no justification for his tardiness, and he has failed to establish proof of any error or injustice that would warrant excusing his untimeliness in the interest of justice. First, the applicant has provided nothing to substantiate his claim that his 4th Amendment or other Constitutional rights were violated-either factually or in theory. Second, he was clearly eligible to meet the CY10 RIF board; there was no authority at that time that would have excluded the applicant from consideration because he might have been under investigation. On the contrary, the governing PSDM 10-20 specifically stated in paragraph 9 that officers under investigation are still eligible to meet the board. In addition, the applicant's various allegations regarding assignment codes are irrelevant to the legal sufficiency of his discharge; moreover, DPAPP has noted that all assignment codes applied to the applicant were proper. In its comprehensive advisory, DPSIDE has refuted all of the applicant's claims that his OPR and Promotion Recommendation Form (PRF) were not supported by reliable evidence or were otherwise in violation of the governing directive. Among other things, they point out that the burden of proving error or injustice is on the applicant-and he offered no proof that the facts reported on these forms were inaccurate, or that anyone in his rating chain rendered these reports in bad faith. Finally, applicant suggests that his discharge documents should be changed to reflect a separation due to medical disabilities rather than by RIF. Alternatively, he requests that a PEB/MEB be ordered to determine if his discharge should be (or should have been) for medical disability rather than reduction-in- force. In a comprehensive advisory, the AFBCMR's Medical Advisor has thoroughly reviewed the applicant's medical record and found no evidence of any medical condition that would have rendered the applicant unfit for military duty. The complete JA evaluation is at Exhibit G. APPLICANT'S REVIEW OF AIR FORCE EVALUATION: The applicant notes that after reviewing the response from JA, he was not eligible to meet the CY10 RIF Board. In addition, he received an email from JA, which noted that; “You are correct. We confused this with another case.” He was governed under PSDM 10-20, in Mar 2010; as he was under investigation and was not eligible to meet the CY10 RIF Board. The applicant’s complete response, with attachments, is at Exhibit I. 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 an error or injustice. We took notice of the applicant’s complete submission in judging the merits of the case; however, the Air Force offices of primary responsibility (OPRs) and the AFBCMR Medical Consultant have provided an exhaustive review of the applicant’s issues and we are in agreement with their opinions and recommendation and adopt the rationale expressed as the basis for our conclusion the applicant has not been the victim of an error of injustice. In addition, while we cannot determine with any certainty, it appears the applicant may have received an earlier version of the PSDM for the CY10 RIF Board, which was later amended to state that members under investigation would be eligible for the CY10 RIF board. However, based on the evidence provided by the applicant, prior to being considered by the RIF board, he was advised, through his chain of command, that Air Force Judge Advocates (AF/JA) office and the Secretary of the Air Force General Counsel (SAF/GC) had determined that members pending UMCJ action/under investigation/Court-Martial proceedings, etc., will not be restricted from consideration by the RIF board. Therefore, in the absence of evidence to the contrary, we find no basis to recommend granting the requested relief. 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-2014-00825 in Executive Session on 14 Apr 15 under the provisions of AFI 36-2603: , Panel Chair , Member , Member The following documentary evidence pertaining to AFBCMR Docket Number BC-2014-00825 was considered: Exhibit A. DD Form 149, dated 23 Feb 14, w/atchs. Exhibit B. Pertinent Excerpts from Personnel Records. Exhibit C. Letter, AFPC/DPSIDE, dated 3 Nov 14. Exhibit D. Letter, AFPC/DPAPP, dated 21 Nov 14. Exhibit E. Letter, AFPC/DPSOR, dated 3 Dec 14. Exhibit F. Letter, AFBCMR Medical Consultant, dated 12 Dec 14. Exhibit G. Letter, AFPC/JA, dated 30 Dec 14. Exhibit H. Letter, SAF/MRBR, dated 9 Jan 15. Exhibit I. Letter, Applicant, dated 25 Jan 15.