RECORD OF PROCEEDINGS

IN THE MATTER OF:	DOCKET NUMBER: BC-2017-02541

	COUNSEL: NONE

	HEARING: NO

APPLICANT REQUESTS THAT:

1)	His record reflect he was not separated on 18 Dec 07 but was reinstated to active duty, or in the alternative;

2)	Enlist him into the Air Force Reserve.  If neither of these two are possible, than;

3)	His narrative reason for separation be changed to “secretarial authority – condition not a disability” with a corresponding reentry (RE) code change.

4)	In a supplemental request (received 7 Nov 17), he requests reconsideration of his prior case, BC-2014-01485, to change his discharge to a medical discharge or retirement.  

5)	In a supplemental request (dated 23 May 18), he requests instead of being separated on 18 Dec 07, that he be medically retired for major depressive disorder, placed on the Permanent Disability Retirement List (PDRL), and rated no less than 50 percent.

6)	In rebuttal (dated 2 Oct 18), he clarifies his initial request for reinstatement to active duty was to be processed through the Integrated Disability Evaluation System (IDES).  

APPLICANT CONTENDS THAT:

The Air Force did not follow the governing Air Force Instruction (AFI), AFI 36-3208, Administrative Separation of Airman, before his discharge.  He did not receive formal counseling, was not given the opportunity for rehabilitation, nor given the opportunity to overcome deficiencies before his discharge.  The only document confirming the existence of a condition that interfered with military service was a report from the mental health clinic and AFI 36-3208 specifically prohibited this report.  

In two supplemental submissions received on 7 Nov 17 and 28 Nov 17, the applicant request reconsideration of his previous case referencing the 25 Aug 17 Office of the Undersecretary of Defense, Personnel and Readiness, clarifying guidance to the Board by veterans seeking modifications to their discharge due to mental health conditions.  The memo provided constitutes new evidence not available at the time of his previous submission.  The Department of Veterans Affairs rated him at 100 percent service-connected for generalized anxiety disorder with major depressive disorder and panic disorder with agoraphobia (previously evaluated as adjustment disorder with dysthymic disorder and generalized anxiety disorder) and should be liberally considered to mean that the condition(s) existed and occurred during military service and that he was medically retired based on these diagnoses.

In another supplemental submission dated 23 May 18, the applicant contends that at the time of his discharge he did not meet the diagnostic criteria for an adjustment disorder but rather met the criteria for major depressive disorder.  Because of this, he was wrongly discharged and should have been referred to the disability evaluation system and ultimately retired for disability.  The Air Force erred by making a final classification of adjustment disorder without allowing six months to determine if he actually had adjustment disorder.  

The applicant’s complete submission is at Exhibit A.

STATEMENT OF FACTS:

On 6 Mar 07, the applicant entered the regular Air Force. 

On 28 Nov 07, the medical operations squadron staff clinical psychologist diagnosed the applicant with conditions that interfere with continued military service; specifically, Axis I: adjustment disorder, depressed features, noting his disorder was so severe that the applicant’s ability to function effectively in the military environment was significantly impaired.  

On 10 Dec 07, the applicant’s squadron commander recommended he be honorably discharged based on his mental health condition.  On the same date, the applicant waived his right to counsel and right to submit statements.  

On 17 Dec 07, the applicant’s wing commander approved the applicant’s discharge.  

On 18 Dec 07, the applicant was released from active duty with a narrative reason for separation of Adjustment Disorder (No Board Entitlement) and credited with 9 months and 13 days of active service.  

On 14 Feb 13, the Air Force Discharge Review Board denied the applicant’s request to change the reason, authority for discharge, and RE code, concluding the discharge was consistent with the procedural and substantive requirements of the discharge regulation and within the discretion of the discharge authority.  Furthermore, the applicant was provided full administrative due process.  

On 28 May 13, the applicant was issued a DD Form 215, Correction to DD Form 214, Certificate of Release or Discharge from Active Duty, changing his RE code from 3C to 2C.  

On 3 Apr 14, the applicant submitted an AFBMCR request to change his administrative separation to a medical retirement.  On 26 Aug 15, the Board denied his request (Exhibit B – Record of Proceedings, BC-2014-01485).

On 10 Feb 16, according to documents submitted by the applicant, the Department of Veterans Affairs rated him at 100 percent service-connected for generalized anxiety disorder with major depressive disorder and panic disorder with agoraphobia (previously evaluated as adjustment disorder with dysthymic disorder and generalized anxiety disorder), effective 29 Oct 15.  

On 3 Sep 14, the Secretary of Defense issued a memorandum providing guidance to the Military Department Boards for Correction of Military/Naval Records as they carefully consider each petition regarding discharge upgrade requests by veterans claiming PTSD.  In addition, time limits to reconsider decisions will be liberally waived for applications covered by this guidance.

On 25 Aug 17, the Under Secretary of Defense for Personnel and Readiness (USD P&R) issued clarifying guidance to Discharge Review Boards and Boards for Correction of Military/Naval Records considering requests by veterans for modification of their discharges due in whole or in part to mental health conditions [PTSD, Traumatic Brain Injury (TBI), sexual assault, or sexual harassment].  Liberal consideration will be given to veterans petitioning for discharge relief when the application for relief is based in whole or in part on the aforementioned conditions.

Currently, service members diagnosed with mental health conditions receive heightened screening to ensure the causal relationship of possible symptoms and discharge basis is fully considered, and characterization of service is appropriate. Veterans discharged under prior procedures, or before verifiable diagnosis, may not have suffered an error because the separation authority was unaware of their condition or experience at the time of discharge.  However, when compared to similarly situated individuals under current standards, they may be the victim of injustice because commanders fully informed of such conditions and causal relationships today may opt for a less prejudicial discharge to ensure the veteran retains certain benefits, such as medical care.

Liberal consideration does not mandate an upgrade.  Relief may be appropriate, however, for minor misconduct commonly associated with the aforementioned mental health conditions and some significant misconduct sufficiently justified or outweighed by the facts and circumstances.  

On 25 Jul 18, the USD P&R issued further guidance with the intent to set clear standards.  The various clarifying guidance memoranda are at Exhibit K for the Board’s consideration.

For more information, see the excerpt of the applicant’s record at Exhibit B and the advisories at Exhibits C – E and H.

AIR FORCE EVALUATION:

AFPC/DP2SSM recommends denying the applicant’s request to change his RE code.  Applicant’s RE code 2C is correct and he does not provide any evidence that would warrant a change to his RE code.  The complete advisory is at Exhibit C.

AFPC/DP2STM recommends denying the applicant’s request.  The applicant failed to file a timely petition and it is not in the interest of justice to wave the failure to timely file.  The discharge was consistent with the procedural and substantive requirements of the discharge instruction and was within the discretion of the discharge authority.  With regard to the applicant’s contention no formal counseling was provided, the counseling sessions conducted by the trained medical professionals fulfill the AFI requirement.  There is no evidence of an error or injustice in the discharge processing.  The complete advisory is at Exhibit D.

The AFBCMR Mental Health and Psychological Advisors recommend denying the applicant’s request to change his narrative reason for discharge and RE code allowing re-enlistment.  The applicant states he was not formally counseled and not permitted an opportunity to overcome his deficiencies.  Evidence provided to the Board shows the applicant was seen over 14 times for depressive symptoms and insomnia associated with the tragic death of his sister.  He was given the appropriate treatment based on his clinical presentation at that snapshot in time and unfortunately, he was not amenable to treatment.  

The evidence reviewed was insufficient to reflect the applicant’s separation and/or diagnosis was made in error.  Addressing the applicant’s request to change his RE code, the assigned RE code was appropriate and consistent based the type of discharge.  Furthermore, a history of a single adjustment disorder if treated or symptomatic within the previous 6 months of enlistment, any history of chronic adjustment (lasting longer than 6 months), or recurrent episodes of an adjustment disorder is disqualifying.  Therefore, based on his diagnosis the applicant would not be permitted to re-enlist into the military.  The complete advisory is at Exhibit E.

APPLICANT REVIEW OF AIR FORCE EVALUATION:

The Board sent a copy of the Air Force evaluation to the applicant on 2 Oct 18 for comment (Exhibit F), and the applicant replied on 4 Oct 18.  In his response, the applicant clarifies he never intended to have his record corrected to be able to reenlist.  He only mentioned reinstatement in order to be processed through the IDES.  His case meets the liberal consideration criteria per the Kurta memorandum (Exhibit K).  His major depressive disorder with generalized anxiety disorder and panic disorder with agoraphobia should be considered to have existed and have occurred during his time in the Air Force.  

Furthermore, he cites the Cowles vs. McHugh court case highlighting the court conclusion that the Army violated its own regulations by not allowing up to six months to determine if the soldier in fact had adjustment disorder.  In his case, he highlights the Air Force instruction and states the Air Force failed to follow their own regulations by allowing him six months after his diagnosis of adjustment disorder before beginning his administrative separation.  In rebuttal, he includes his unit’s discharge checklist since it demonstrates his discharge was not properly processed and refutes the mental health advisor’s assertion that the formal counseling requirement was satisfied.  The applicant’s complete response is at Exhibit G.

ADDITIONAL AIR FORCE EVALUATION:

In a supplementary advisory, the AFBCMR Psychological Advisor recommends denying the applicant’s request for a medical separation or retirement.  During applicant’s time in the Air Force, he was never given an unfitting diagnosis of major depressive disorder and was consistently given diagnoses of initially bereavement without complications and then gradually to adjustment disorder with depressed mood.  His adjustment disorder appeared to be valid based on his symptoms reported in his treatment notes.  Additionally, applicant was never placed on a duty limiting condition profile and never had any mental health conditions that were found to be unfitting for continued service causing career termination.  In fact, treatment notes dated on 21 Nov 07 from his provider stated, “Reviewed grief work and explained there were no clinical finding at this point that warranted separation from service or medical board.”  Further complicating the applicant’s grief and reaction to his sister’s death was his difficulties adjusting to military service.  Several treatment notes reported he expressed desires to leave the military.  He was discharged from service for an Adjustment Disorder caused by grief over his sister’s death and difficulties adjusting to the military.  Applicant also cited the Kurta memorandum in regards to the liberal consideration policy as supporting evidence for a medical retirement.  The liberal consideration policy applies to upgrades of service discharge characterization and the applicant already received an Honorable discharge, so this policy would not be applicable to his request.  The complete advisory is at Exhibit H.

APPLICANT REVIEW OF AIR FORCE EVALUATION:

The Board sent a copy of the Air Force supplemental evaluation to the applicant on 12 Oct 18 for comment (Exhibit I), and the applicant replied on 12 Oct 18.  In his response, the applicant reiterates he met the criteria for major depressive disorder.  He restates an adjustment disorder must resolve within six months of the termination of the stressor.  By not waiting six months before initiating his discharge, the Air Force failed to live up to its requirement to overcome his deficiencies.  The psychological advisor is wrong on several points.  For example:  1) He was never seen by any mental health treatment facility while at basic training and was first seen at technical training.  2) While he may have wanted to go home to help his family at the time, he did not have problems adjusting to the Air Force.  3) The Kurta memorandum does apply in his case.  4) Even if adjustment disorder was the correct diagnosis in 2014, since it lasted more than six months, it should have been chronic (an assertion he does not follow) resulting in a compensable disability and referral to the Disability Evaluation System.  The applicant’s complete response is at Exhibit J.

THE BOARD CONCLUDES THAT:

1.  The application was timely filed.

2.  The applicant exhausted all available avenues of non-judicial relief before applying to the Board.

3.  After thoroughly reviewing all Exhibits, it is the Board’s opinion that the applicant is not the victim of an error or injustice.  The Board concurs with the rationale and recommendation of offices of primary responsibility and finds that a preponderance of the evidence does not substantiate the applicant’s contentions.  The Board notes the applicant states that the Air Force violated several requirements outlined in the Air Force instructions; however, the Board agrees with AFPC/DP2STM and the mental health advisors the Air Force instructions requirements were fulfilled in the applicant’s case.  The Board also notes the applicant cites Cowles vs. McHugh where the court concluded the Army action of not allowing up to six months to determine if the soldier in fact had adjustment disorder was unlawful because the Army violated its own regulations.  However, the Board notes the governing Air Force instruction at the time did not have the same requirement for adjustment disorder and since the diagnosis was determined less than six months prior to his discharge, the condition was not considered chronic.  Thus, the Board finds the discharge was consistent with the procedural and substantive requirements of the discharge instruction, was within the discretion of the discharge authority, and the applicant was provided full administrative due process.  Therefore, the Board recommends against correcting the applicant’s records.

THE BOARD RECOMMENDS THAT:

The applicant be informed the evidence did not demonstrate material error or injustice, and the application will only be reconsidered upon receipt of relevant evidence not already considered by the Board.

CERTIFICATION:

The following quorum of the Board, as defined in Air Force Instruction (AFI) 36-2603, Air Force Board for Correction of Military Records (AFBCMR), paragraph 1.5, considered Docket Number BC-2017-02541 in Executive Session on 20 Nov 18.

, Panel Chair
, Panel Member
, Panel Member

All members voted not to correct the record.  The panel considered the following:

Exhibit A:	Application, DD Form 149, w/atchs, dated 16 May 17.
Exhibit B:	Documentary evidence, including relevant excerpts from official records.
Exhibit C:	Advisory opinion, AFPC/DP2SSM, dated 29 Nov 17.
Exhibit D:	Advisory opinion, AFPC/DP2STM, dated 6 Dec 17.
Exhibit E:	Advisory, AFBCMR Mental Health/Psychological Advisors, dated 25 Sep 18.
Exhibit F:	Notification of Advisory, SAF/MRBC to applicant, dated 2 Oct 18.
Exhibit G:	Applicant’s response, w/atchs, dated 4 Oct 18.
Exhibit H:	Supplemental Advisory, AFBCMR Psychological Advisor, dated 4 Oct 18.
Exhibit I:	Notification of Advisory, SAF/MRBC to applicant, dated 12 Oct 18.
Exhibit J:	Applicant’s response, w/atchs, dated 12 Oct 18.
Exhibit K:	Clarifying guidance to review boards (various dates).
Exhibit L:	Miscellaneous Documents (AFI 36-3208 extract and Cowles vs. Hughes).

Taken together with all Exhibits, this document constitutes the true and complete Record of Proceedings of Docket Number BC-2017-02541 required by AFI 36-2603, paragraph 4.11.9.