RECORD OF PROCEEDINGS AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS IN THE MATTER OF: DOCKET NUMBER: BC-2014-03046 COUNSEL: NONE HEARING DESIRED: NO APPLICANT REQUESTS THAT: His general (under honorable conditions) discharge be changed to honorable. His narrative reason for separation of “misconduct” be changed to “depression.” APPLICANT CONTENDS THAT: The Department of Veterans Affairs (DVA) recently rated him at 70 percent for compensable disability condition of Major Depressive Disorder (MDD). He was first diagnosed with depression while on active duty. His depression was determined due to unresolved grief which was a misdiagnosis. He was discharged with no follow-up care and increasing severity of depression with suicidal attempts. It was not until 22 October 2013 that a physician agreed that his condition was ongoing and progressive in nature. The applicant’s complete submission is at Exhibit A. STATEMENT OF FACTS: On 25 March 1987, the applicant entered the Regular Air Force. On 11 May 1989, he was discharged with service characterized as general (under honorable conditions) with a narrative reason for separation of “Misconduct-other serious offense” and Reentry (RE) code “2B” which denotes “Discharged under General or other than honorable conditions.” He was credited with 2 years, 1 month and 17 days of active duty service. The remaining relevant facts pertaining to this application are contained in the memorandums prepared by the Air Force Offices of Primary Responsibility (OPR), which are attached at Exhibits C and D. AIR FORCE EVALUATION: AFPC/DPSOR recommends denial. The discharge to include the Separation Program Designator (SPD) code, narrative reason for separation, and character of service, was consistent with the procedural and substantive requirements of the discharge instruction and was within the discretion of the discharge authority. DPSOR did not find any evidence of any errors or injustice in the discharge processing. Additionally, the applicant has not filed a timely petition. It has been 25 years since his discharge from the Air Force and the applicant has provided no documented evidence of an error or injustice. The unreasonable delay regarding a matter dating back to 1989 has greatly complicated the ability to determine the merits of the applicant’s position. AFR 39-10, Administrative Separation of Airman, paragraph 1-18, states “characterization of service as general is warranted when significant negative aspects of the airman’s conduct or performance of duty outweigh the positive aspects of the airman’s military record.” The applicant’s commander and separation authority concluded that based on the serious nature of his misconduct, a general discharge was warranted. On 14 April 1989, the applicant was notified by his commander she was recommending he be discharged for a condition that interferes with military service (personality disorder), pursuant to AFR 39-10, section B, paragraph 5-11. On 20 April 1989, the discharge recommendation was amended to include he be discharged with a general discharge for misconduct (commission of serious offense) pursuant to AFR 39-10, chapter 5, paragraph 5-49. The reasons for the discharge recommendation include that on or about 21 March 1989, the commander received a mental health evaluation that diagnosed the applicant with Axis I Dysthymia, a chronic disorder requiring prolonged mental health treatment. He was also diagnosed with Axis II, Personality Disorder. Additionally, on or about 16 April 1989, the applicant was apprehended by security forces personnel for being drunk and disorderly and for willfully and maliciously burning the wall of a dormitory. The applicant acknowledged receipt of the notification of discharge and was afforded the opportunity to consult with legal counsel and submit statements in his own behalf. Although there was sufficient evidence to support mental disorder as a reason for discharge, the base legal office reviewed the package and recommended discharge for misconduct be the primary basis since it had a detrimental effect on his unit. The separation authority approved the discharge for misconduct and directed the applicant be separated with a general discharge. A complete copy of the AFPC/DPSOR evaluation is at Exhibit C. The Clinical Mental Health Advisor recommends denial. The Mental Health Advisor finds no evidence of injustice or inequity. From a mental health perspective, the applicant was appropriately diagnosed and dispositioned in accordance with the regulatory guidance in place at the time. The applicant’s clinical diagnosis while in service fell into a category of disorders not considered a disability by either the military department or the DVA. Consequently, he was not eligible for a medical discharge via a Medical Evaluation Board (MEB) and Physical Evaluation Board (PEB) under AFR 35-4, or today’s AFI 36-3212, Physical Evaluation for Retention, Retirement and Separation. It should be noted his diagnosis at discharge from military service was quite different from that which was later issued by the DVA, albeit with overlapping or shared clinical features. The applicant’s post-service diagnosis is a compensable mental health condition. However, at the time of his discharge, Dysthymic Disorder and Personality Disorder were considered unsuiting for continued service, not unfitting. The applicant’s discharge was based upon a psychiatric evaluation dated 21 March 1989 which diagnosed him with a Personality Disorder and Dysthymia. Both diagnoses were at the time considered unsuiting (not compensable for continued active duty). The evaluating mental health provider went on to recommend administrative separation due to significant impairment in his ability to perform duty. The applicant underwent psychiatric hospitalization in February 1989 and the treating psychiatrist described him as isolative and challenging of rules and perceived the Air Force as the source of his problems. Also mentioned in the discharge summary is the negative impact the applicant’s use of alcohol had on his judgment and his use of marijuana while on active duty. The applicant was diagnosed with Dysthymia and Personality Disorder not otherwise specified with antisocial and dependent traits and was recommended for discharge. The applicant was discharged on no psychotropic medications. Since the applicant’s discharge from active duty, he has attempted suicide on multiple occasions and has undergone multiple mental health hospitalizations over the span of many years. His myriad of diagnoses have included alcohol dependence, MDD, poly-substance dependence, opiate dependence, sedative-hypnotic dependence, alcohol-induced mood disorder and Post-traumatic Stress Disorder. He currently has a service connected disability rating of 70 percent for MDD. The fact that the applicant’s underlying diagnosis has changed or evolved over time into a formal diagnosis of MDD, following two and a half decades of life experiences does not invalidate the accuracy of the assessment and conclusions reached at the time of his final military disposition in 1989. Addressing the applicant’s implicit desire for a medical separation or retirement, the military Disability Evaluation System (DES), established to maintain a fit and vital fighting force, can by law, under 10 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. The clinical reviewers at the time of his service found no evidence of a disqualifying mental health disorder that warranted a MEB and processing via a PEB. At the same time, operating under a different set of laws (38 U.S.C.), with a different purpose, the 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 retainability, fitness to serve, narrative reason for separation, or length of time passed since discharge. This is the reason why an individual can be found fit for release from military service for one reason and yet sometimes thereafter receive a compensation rating from the DVA for one or more service-connected, but not militarily unfitting conditions. A complete copy of the BCMR Clinical Mental Health Advisor’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 23 October 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 the applicant’s requests and the available evidence of record, we find the application untimely. 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. 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-2014-03046 in Executive Session on 8 December 2015 under the provisions of AFI 36-2603: , Panel Chair , Member , Member The following documentary evidence was considered: Exhibit A. DD Form 149, dated 23 July 2014. Exhibit B. Applicant's Master Personnel Records. Exhibit C. Memorandum, AFPC/DPSOR, dated 24 September 2014. Exhibit D. Memorandum, BCMR Clinical Mental Health Consultant, dated 20 October 2015. Exhibit E. Letter, SAF/MRBR, dated 23 October 2015.