RECORD OF PROCEEDINGS AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS IN THE MATTER OF: DOCKET NUMBER: BC-2014-02525 COUNSEL: NONE HEARING DESIRED: NO APPLICANT REQUESTS THAT: His DD Form 214, Certificate of Release or Discharge from Active Duty, be amended as follows: Item 24, Character of Service, reflect “Honorable” instead of “General.” Item 28, Narrative Reason for Separation, reflect “Medical” instead of “Misconduct-pattern of minor disciplinary infractions.” APPLICANT CONTENDS THAT: He was discharged while being treated for depression, anxiety attacks and stress. He was sexually assaulted by his Mental Health (MH) doctor and this caused his minor infractions. He should have received an honorable discharge for his medical condition. Being a male, the sexual assault has been hard to reveal. The applicant’s complete submission is at Exhibit A. STATEMENT OF FACTS: On 12 March 1980, the applicant entered the Regular Air Force. Per Special Court-Martial Order Number 22, dated 30 December 1982, the applicant was found guilty by court-martial of assault in violation of the Uniform Code of Military Justice (UCMJ), Article 128. Specifically, on or about 29 October 1982, he committed an assault against an airman by swiping at him with a dangerous weapon, a means or force likely to produce grievous bodily harm, to wit: a folding lock blade knife with a blade approximately three and five eighth inches long. The sentence adjudged on 8 December 1982 was confinement at hard labor for two months, forfeiture of $350.00 of his pay for two months and reduction to the grade of Airman First Class (A1C, E-3). In a memorandum dated 7 February 1983, his commander recommended he be discharged for minor disciplinary infractions In Accordance With (IAW) AFR 39-10, Administrative Separation of Airman. The specific reasons for the recommendation include a Letter of Reprimand (LOR) on 2 November 1981 for being late for duty, failure to make a scheduled appointment on 16 November 1981, an Article 15 on 8 July 1982 for dereliction in the performance of his duty and he was court-martialed on 8 December 1982 for assault. On 7 February 1983, the applicant acknowledged the discharge recommendation and indicated he would consult legal counsel and submit statements in his own behalf. On 9 March 1983, the Judge Advocate determined the recommendation for discharge was legally sufficient. In a memorandum dated 11 Mar 1983, the discharge authority approved a general discharge without probation and rehabilitation. On 16 March 1983, the applicant received a general (under honorable conditions) discharge with a narrative reason for separation of “Misconduct-pattern of minor disciplinary infractions.” He was credited with 3 years and 5 days of active duty service. According to a Department of Veterans Affairs (DVA) rating decision dated 4 February 2011, the applicant received a 30 percent disability rating for Post-Traumatic Stress Disorder (PTSD) effective 16 November 2010. AIR FORCE EVALUATION: The BCMR Clinical Mental Health Consultant recommends denial and finds no credible evidence of an injustice or inequity. The applicant was appropriately diagnosed and treated and no connection between the misconduct which led to his discharge and his MH condition was found. He was considered mentally fit for duty at the time of his discharge. A review of the record demonstrates no connection between the applicant’s interaction with military MH in 1981 and his eventual discharge for minor disciplinary infractions in 1983. He was first seen by MH on 28 May 1981 after reporting extreme anxiety and difficulty sleeping as a result of his duties loading ordnance onto aircraft. He was initially diagnosed with anxiety but over the course of time it was learned he had a history of a gunshot wound as a small child. He was eventually diagnosed with PTSD, delayed. By September 1981, a recommendation for a Medical Evaluation Board (MEB) was made and the applicant was placed on a profile restricting him from exposure to weapons. The applicant was formally evaluated by a psychiatrist on 1 October 1981 and in the Narrative Summary (NARSUM) dated 21 October 1981, the psychiatrist recommended a permanent profile from exposure to weapons. The psychiatrist recommended the applicant be retrained into a field where work with weapons was not required. On 1 December 1981, the Director of Base Medical Services ordered the applicant’s MEB be halted. There is no further evidence of the applicant receiving MH services after this date. The DVA awarded a 30 percent rating for diagnosis of PTSD, service connected, peacetime incurred on 4 February 2011. It should be noted the effective date of his disability was 16 November 2010, the date of his application, and not the date of his discharge from active duty service. After repeated applications, the rating was eventually increased to 100 percent but the effective date remained 16 November 2010. The applicant reported to the DVA that he was a victim of military sexual trauma at the hands of one of his MH providers while he was still on active duty and mentions this claim in his application; however, the Clinical Mental Health Consultant found no evidence or report of this prior to 2010 in the available record. A complete copy of the BCMR Clinical Mental Health Consultant’s evaluation is at Exhibit C. The BCMR Medical Consultant concurs with the assessment and recommendation of the Mental Health Consultant and adds the following relevant facts of record and analysis: In order for the applicant to be eligible for a medical discharge, the condition must be shown to have prevented the reasonable performance of the duties of his office, grade, rank and rating. Although a MEB more commonly results in referral to a Physical Evaluation Board (PEB) and an unfit finding, the MEB itself is not determinative of a member’s retainability. Based on the applicant’s observed behavior after removing him from the environment of handling live weapons, he no longer displayed an overt functional impairment and the Air Force decided upon his retention and cross-training. The applicant received a general discharge for his misdeeds during military service. In order for him to be eligible for a medical separation, the evidence must show that he was the subject of an unfit finding by a PEB and was approved for a medical discharge. The narrative reason for discharge would have been decided by the Secretary of the Air Force Personnel Council (SAFPC) as a “dual-action” review of his case. However, the evidence clearly establishes that his mood disturbance, albeit initially characterized as an anxiety disorder and later as delayed PTSD, did not cause career termination; nor should it have noting his recovery and resolution of overt symptoms when removed from the offending occupation and potential exposure to live weapons. The Medical Consultant acknowledges the applicant’s allegation of sexual assault during his military service; however, no evidence is presented to corroborate the alleged trauma to establish a causal and mitigating relationship with his acts of misconduct. The applicant has since been evaluated and granted service- connection and compensation for PTSD by the DVA. However, such a finding and rating decision is not determinative of the appropriate narrative reason for discharge nor does it characterize its level of severity or impairment present at the “snapshot” time of release from military service. Thus, having no medical basis for discharge and no clear association of the applicant’s offenses with an underlying medical disorder, the Medical Consultant finds the evidence insufficient to warrant the desired change of the record. Unlike, the Military Departments, the DVA is authorized, under 38 U.S.C. 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 retainability, fitness to service, the narrative reason for separation, or the time transpired since discharge. With this in mind, 38 U.S.C., which governs the DVA compensation system was written to allow awarding compensation ratings for conditions that were not the cause for career termination. This is the reason why an individual can be released from military service for one reason and yet sometime thereafter receive a compensation rating from the DVA for one or more medical conditions that were service-connected, but not proven militarily unfitting at the time of release from military service. The DVA is also empowered to conduct periodic re- evaluations for the purpose of adjusting the disability ratings (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. A complete copy of the 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 30 September 2015 for review and comment within 30 days (Exhibit E). As of this date, no response has been received by this office. FINDINGS AND CONCLUSIONS OF THE BOARD: After careful consideration of applicant’s request and the available evidence of record, we find the application untimely. The applicant did not file within three years after the alleged error or injustice was discovered as required by Title 10, United States Code, Section 1552 and Air Force Instruction 36-2603. The applicant has not shown a plausible reason for the delay in filing, and we are not persuaded that the record raises issues of error or injustice which require resolution on the merits. Thus, we cannot conclude it would be in the interest of justice to excuse the applicant’s failure to file in a timely manner. THE BOARD DETERMINES THAT: The application was not timely filed and it would not be in the interest of justice to waive the untimeliness. It is the decision of the Board, therefore, to reject the application as untimely. The following members of the Board considered AFBCMR Docket Number BC-2014-02525 in Executive Session on 29 October 2015 under the provisions of AFI 36-2603: , Panel Chair , Member , Member The following documentary evidence was considered: Exhibit A. DD Form 149, dated 19 June 2015. Exhibit B. Applicant's Master Personnel Records. Exhibit C. Memorandum, BCMR Clinical Mental Health Consultant, dated 21 September 2015. Exhibit D. Memorandum, BCMR Medical Consultant, dated 28 September 2015 Exhibit E. Letter, SAF/MRBR, dated 30 September 2015.