RECORD OF PROCEEDINGS AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS IN THE MATTER OF: DOCKET NUMBER: BC-2014-03909 COUNSEL: NONE HEARING DESIRED: NOT INDICATED APPLICANT REQUESTS THAT: His general (under honorable conditions) discharge be upgraded to honorable. His narrative reason for separation of “Misconduct” be changed to “Medical.” APPLICANT CONTENDS THAT: He was injured in the service. The Department of Veterans Affairs (DVA) has rated him at 60 percent for compensable service connected disability. The Board should find it in the interest of justice to consider his untimely application as he was never given the opportunity to file a DVA claim. In a letter dated 7 Nov 14, his DVA provider states the applicant advised that his disciplinary issues while in military service were secondary to his now service connected physical conditions and related stressors. The applicant’s complete submission, with attachments, is at Exhibit A. STATEMENT OF FACTS: On 16 Jan 01, the applicant entered the Regular Air Force. On 10 Dec 01, he received a general (under honorable conditions) (general), discharge with a narrative reason for separation of “Misconduct” and RE code of “2B” which denotes “Discharged under general or other than honorable conditions.” According to the DVA rating decision dated 10 Jun 14, the applicant was rated at 60 percent for a service connected disability for conditions of degenerative joint disease, degenerative arthritis and herniated disc and lumbar spine. The applicant was denied service connected disability for Post- Traumatic Stress Disorder (PTSD) as the DVA determined the condition was not related to his military service. According to a U.S. Department of Justice, Federal Bureau of Investigation (FBI) letter dated 4 Apr 15 (Exhibit E), the applicant has no prior arrest data on file at the FBI. AIR FORCE EVALUATION: AFPC/DPSOR recommends denial of the applicant’s requests. The applicant has not filed a timely application. It has been 13 years since his discharge and he did not provide a reasonable explanation as to why he failed to submit a petition within 3 years of discharge. Based on a review of the master personnel records, the discharge, to include the separation 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. On 3 Dec 01, the applicant was notified by his commander that he was recommending he be discharged for misconduct, specifically, minor disciplinary infractions. The commander indicated that he would be recommending a general (under honorable conditions) discharge based on the following: On or about 29 Jun 01, the applicant was physically in control of a vehicle while impaired by alcohol for which he received an Article 15, Uniform Code of Military Justice (UCMJ). Between and on or about 5 Oct 01 and 7 Oct 01, he was derelict in the performance of his duties by camping overnight at Lake Texacoma for which he received a Letter of Reprimand (LOR). On or about 12 Oct 01, he was derelict in the performance of his duties when he was observed talking while at the position of attention for which he received a Letter of Counseling (LOC). On or about 13 Oct 01, he failed to go to his appointed place of duty for which he received a LOR. On or about 13 Oct 01, he was derelict in the performance of his duties by failing to return to and remain in his assigned dormitory from 2200-0400 for which he received a LOR. The base legal office reviewed the case and found it legally sufficient to support separation and the base separations authority approved the discharge and directed he be separated with a general (under honorable conditions) discharge. The record shows the applicant was afforded every opportunity to excel and overcome his deficiencies. His commander concluded that careful consideration was taken on whether or not the applicant should be retained in the military. It was determined that due to his low regard for the rules, regulations and integrity, separation was the correct course of action. DPSOR concurs with the assessment. Therefore, the separation code and the narrative reason for separation are correct as indicated on his DD Form 214. A complete copy of the DPSOR evaluation is at Exhibit C. The BCMR Medical Consultant recommends denial of the applicant’s petition to supplant his administrative discharge with a medical separation or retirement. The applicant has not met the burden of proof to warrant the desired change of the record. 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 “snapshot” time of separation and not based on post- service progression of disease or injury. DODI 1332.32, Physical Disability or Medical Disqualification, paragraph E3.P3.2.1, in effect at the time of the applicant’s service reads: “A service member shall be considered unfit when the evidence establishes the member, due to physical disability is unable to reasonably perform the duties of his or her office, grade, rank or rating.” The Medical Consultant concedes a more thorough evaluation of his right knee should have been documented at the time of separation than appears on his separation physical. However, the Medical Consultant cannot speculate on his physical fitness at the time. Reflecting on his acute minor illnesses and injuries, none of these were documented to have impaired his ability to reasonably perform his military duties to the extent or duration that warranted rendering him non-worldwide qualified justifying referral for a Medical Evaluation Board (MEB) and Physical Evaluation Board (PEB) processing. Moreover, even if the applicant had undergone an MEB and was offered a medical separation or retirement, under AFI 36-3212, Physical Evaluation for Retention, Retirement and Separation, his case would have required a “dual-action” review by the Secretary of the Air Force Personnel Counsel (SAFPC) to determine which basis for discharge was appropriate. In conducting such a review, the SAFPC searches for any causal or mitigating relationship between the acts of misconduct and the medical condition. If there is no such causation, as in the case under review, the applicant would have been vulnerable for execution of the approved administrative discharge. Operating under a different set of laws, 38 U.S.C., the DVA is authorized to offer compensation for any medical condition determined service incurred, without regard to its demonstrated or proven impact upon a service member’s retainability, fitness to serve, narrative reason for separation, or the intervening period since the date of separation. 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 individually unfitting during military service or at the time of separation. A complete copy of the BCMR Medical Consultant’s evaluation is at Exhibit D. APPLICANT'S REVIEW OF AIR FORCE EVALUATION: He was forced to lose weight before graduating Basic Military Training (BMT). He noticed a slight change in his health while in BMT, he was getting sick more often during training due to his allergic reactions from the vaccinations. After entering technical training to be a crew chief, he had no issues retaining information. However, the wording on the tests were different than the re-test. He would fail the test and pass the re-test. He asked for medical treatment and was told to refuse treatment or be forced to go home. He was then placed into another job refueling and defueling aircraft. He was pulled out of training five days from graduation. In Nov 01 he was seen by a physical therapist for his injuries. After a month of physical therapy, he was discharged in Dec 01. He was seen by doctors for a year when an MRI was ordered. The information from the MRI was submitted and a year later he was granted a DVA rating of 20 percent. Fourteen years later, he is now 60 percent disabled and is waiting for a rating of 100 percent disability. He had no DVA support or knowledge that he could try for a medical separation as a way of discharge upgrade. The military had knowledge of his injury and chose to ignore the evidence submitted which led to his condition to develop over the years. The applicant’s complete submission, with attachments, is at Exhibit G. FINDINGS AND CONCLUSIONS OF THE BOARD: 1. 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. 2. 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 issues involved. Therefore, the request for a hearing is not favorably considered. 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-2014-03909 in Executive Session on 13 and 17 May 15 under the provisions of AFI 36-2603: , Panel Chair , Member , Member The following documentary evidence was considered: Exhibit A. DD Form 149, dated 19 Sep 14, w/atchs. Exhibit B. Applicant's Master Personnel Records. Exhibit C. Memorandum, AFPC/DPSOR, dated 2 Dec 14. Exhibit D. Memorandum, BCMR Medical Consultant, dated 16 Mar 15. Exhibit E. Letter, U.S. Department of Justice, dated 4 Apr 15. Exhibit F. Letter, SAF/MRBR, dated 7 Apr 15. Exhibit G. Letter, Applicant, undated, w/atchs.