RECORD OF PROCEEDINGS

IN THE MATTER OF:	DOCKET NUMBER: BC-2019-01846

XXXXXXXXXX	COUNSEL:  NONE
	
	HEARING REQUESTED:  NO

APPLICANT’S REQUEST

He be medically retired with a 100 percent disability rating effective 1 Oct 11, with the associated back pay.

APPLICANT’S CONTENTIONS

He suffered multiple concussive events and from a variety of service-connected disabilities that were not treated properly while he was on active duty.  As a result, he self-medicated with alcohol and used poor judgment in reacting to extreme emotional situations.  During his last deployment, his request for classified equipment was denied.  He deemed the equipment mission essential and thus placed a classified Inspector General (IG) complaint that was ignored.  On 4 Feb 11, his commander threatened him with a number of disciplinary actions and loss of security clearance in retaliation for submitting an IG complaint.  His commander ordered medical tests prior to starting any disciplinary action.  The Air Force found brain abnormalities.  Two separate government organizations, the Department of Veterans Affairs (DVA) and Social Security Administration (SSA) both concluded he was disabled and unable to work.  The Department of Veteran Affairs (DVA) rated him 100 percent disabled and added Traumatic Brain Injury (TBI) to his disabilities.  However, the Air Force medical staff did not determine that TBI was present or that he was suffering from TBI but concluded he was suffering from other mental issues.  The mental issues he was diagnosed with did not require a medical board, because he was deemed "fit for duty."  Two separate Department of Veterans Affairs (DVA) physicians concluded he had TBI and the same brain abnormalities shown on his imagery were concluded to be TBI.  He was erroneously and unjustly found "fit for duty" so his commander could give him disciplinary action.  It is clear the Air Force failed to correctly diagnosis him.  

On 20 Nov 18, the U.S. Court of Federal Claims advised him to file a claim for disability  with the BCMR and submit the findings from the Social Security Administration dated 28 Aug 14. 

The applicant’s complete submission is at Exhibit A.

STATEMENT OF FACTS

On 4 Apr 03, the applicant entered a period of active duty.  

On 15 Mar 11, the applicant received a LOR for acting in a manner unbecoming of an officer and a gentleman.  On 24 Mar 11, the applicant received a second LOR for acting in a manner unbecoming an officer and a gentleman. 

On 24 Mar 11, the applicant requested to separate under the Voluntary Separation Pay (VSP) Program effective 1 Oct 11.  The commander stated the applicant had a medical code of 31; however, he was not undergoing a medical discharge.  The commander noted the applicant had two recent LORs for conduct unbecoming an officer and had struggled with judgement and professionalism.  The commander noted that the VSP was the perfect opportunity for the applicant to part ways with the Air Force.  On 30 Mar 11, the wing commander recommended approval of the applicant’s VSP request. 

In a memorandum dated 25 Apr 11, the applicant’s commander notified him that he was being referred for a mental health evaluation for the following reasons:  In Feb 11, the applicant stated he was going to be late for an appointment because he had taken “a whole lot” of sleeping pills the night before in order to settle down and get rest.  On 30 Mar 11, the applicant told a master sergeant he hated a colonel and lieutenant colonel.  The applicant also indicated that he was unsure if he wanted to be an American any longer.  On 11 Apr 11, the applicant mentioned that he owned a weapon and would use it against a man he believed to be involved with his estranged wife if he were to come to his property.  The applicant stated he was not a threat to do harm to himself or anyone else but had considered doing harm to himself in the past.  On 13 Apr 11, he was arrested and charged with cyber stalking and follow-on cyber harassment.  On 15 Apr 11, the applicant was picked up from jail and seemed to be in a cheerful mood, making jokes about the time he spent in jail.  The commander noted his behavior seemed inconsistent with the gravity of the situation.  On 18 Apr 11, the applicant became clearly agitated and was swearing in the commander’s office which was inconsistent with his normal behavior.  

In a memorandum dated 9 May 11, a mental health provider stated in part that the applicant was seen based on a referral following his receiving two LORs for conduct unbecoming an officer and gentleman.  The evaluation supported the following diagnostic formulation:

Axis I	309.4 Adjustment Disorder with Mixed Disturbance of Emotions and Conduct
Axis II:	Obsessive Compulsive Personality Traits
Axis III:	Hypertension currently controlled with medication

The mental health provider stated the applicant’s mental health diagnoses did not indicate he was incapable of meeting the demands of his rank and duty assignment and any issues regarding his suitability for continued service would appear moot given his projected separation from service on 1 Oct 11.

The applicant’s DD Form 214, Certificate of Release or Discharge from Active Duty, issued in conjunction with his 1 Oct 11 separation indicates he was discharged from active duty in the grade of captain with a narrative reason for separation of “Force Shaping –VSP.”  Block 23, Type of Separation reflects “Resignation.”  The applicant served 6 years, 5 months and 10 days active service this period. 

Per Reserve Order PC-00435, dated 24 Jan 12, the applicant was appointed as Reserve of the Air Force effective 2 Oct 11, in the grade of captain.

Per the applicant’s VA Rating Decision dated 1 Aug 13, the DVA made a provisional decision and granted the applicant a 70 percent disability rating for generalized anxiety disorder with major depressive disorder effective 2 Oct 11.  The DVA also granted disability ratings for several other service-connected conditions for a combined overall rating of 90 percent. 

In a letter dated 3 Jun 14, ARPC/DPTT notified the applicant that due to his second deferral for promotion, and in accordance with Title 10, United States Code, Section 14505, he would be discharged.  His adjusted mandatory separation date was established as 1 Dec 14.

On 18 Jul 14, the DVA finalized the provisional evaluation discussed in their 1 Aug 13 letter.  The DVA determined that several other conditions were related to the applicant’s military service.  The decision stated an examination would be scheduled at a future date to evaluate the severity of the applicant’s service connected generalized anxiety disorder with major depressive disorder

On 28 Aug 14, the Social Security Administration determined the applicant was disabled retroactive to 10 Jan 11.

Per the applicant’s VA Rating Decision dated 3 Mar 15, the DVA granted service connection for TBI with an evaluation of zero percent effective 19 Mar 14.  The evaluation of generalized anxiety disorder with major depressive disorder was continued at 70 percent with an overall combined rating of 100 percent.  

U.S. Court of Federal Claims Number 17-1446, filed 20 Nov 18, states in part that the “Clerk of Court is directed to enter a partial judgment for the Plaintiff in the amount of $2.72 and remand this determination to the Air Force Board for the Correction of Military Records to instruct the DFAS to pay this amount to Plaintiff, and consider any new application Plaintiff may elect to file concerning his claim for disability as of January 10, 2011.”

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

APPLICABLE AUTHORITY

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 Posttraumatic Stress Disorder (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.  

AIR FORCE EVALUATION

AFPC/DP2STM recommends denying the application.   Based on review of the applicant’s request and the master of personnel record there is no error or injustice with the discharge processing. According to the master personnel records, the applicant requested voluntary separation under the Voluntary Separation Pay (VSP) program that was in effect at the time.  The applicant’s commander recommended approval of the applicant’s request.  The separation authority approved the request and directed discharge.  

The complete advisory opinion is at Exhibit C.

The Psychiatric Consultant finds insufficient evidence to warrant the desired change of the record.  This applicant contends that he had TBI based on the existence of findings on an MRI.  The lack of images are helpful to support a negative diagnosis.  However, if there are abnormalities in the brain it does not necessarily support a diagnosis of TBI.  TBI is diagnosed by a set of criteria.  The presence of these criteria determines if an insult to the brain will be labeled as a TBI.  The CDC defines Traumatic Brain Injury (TBI) as a disruption in the normal function of the brain that can be caused by a bump, blow, or jolt to the head, or penetrating head injury.

The applicant reported he experienced a concussive event while in Afghanistan and that he was not treated properly.  It was noted that he was seen in 2011 by a neurologist for the complaint of weakness in his hands and arms.  The neurologist was concerned about the applicant having multiple sclerosis due to his father having had that disease.  An MRI was done and his neurologist reported that his MRI showed nonspecific white matter changes which were not contrast enhancing and was not specific for any specific disease processes.  He also noted that studies of motor/sensory nerves on both sides were normal for sensory/motor parameters.  The applicant had another motor vehicle accident the following year and reported increased problems with attention, concentration and memory affecting his school performance.  It was noted that he was also under stress related to his contentious custody battle.  The applicant had neuropsychological testing done.  In summary, “the applicant’s scores were largely within normal limits with some variability on measures of attention, concentration and memory flow average to superior.  Although he does not meet the criteria for a cognitive disorder, low average or perhaps even average performances may well reflect a decline for this intelligent individual.  Overall, it was the impression of the examiner that multiple mild TBI, poor sleep, pain as well as anxiety and tension are [were] contributing to reduced cognitive efficiency and school performance.”

To better understand the difference in the way a case is viewed between the Department of Veteran Affairs (DVA) and the military the Psychiatric Consultant explains the basis for their calculations.  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 “snapshot”  time of separation and not based on post-service progression of disease or injury.  To the contrary, the Department of Veterans Affairs (DVA), operating under a different set of law, Title 38, U.S.C., is empowered to offer compensation for any medical condition with an established nexus with military service, without regard to its impact upon a member’s fitness to serve, the narrative reason for release from service, or the length time transpired since the date of discharge.

The Psychiatric Consultant empathizes with the dilemma confronting the applicant, but finds the decisions of the Military Department did not represent an error or injustice.  

The complete advisory opinion is at Exhibit D.

APPLICANT’S REVIEW OF AIR FORCE EVALUATION

The Board sent copies of the advisory opinions to the applicant on 8 Jan 20 for comment (Exhibit E).  On 13 Feb 20, the applicant responded stating in part that the Department of Veteran Affairs (VA) has already has already declared that anxiety and TBI are service connected and PTSD is in his DoD medical records.  The Air Force has already stated that he suffers from anxiety disorders and is unfit to be around weapons; cannot have a security clearance; and is not able to deploy.  Being  able to deploy, carry a weapon and having a security clearance are all necessities of an intelligence officer to be fit for duty.  Without them, he is considered “unfit for duty.”  He has abnormalities in his brain that were not present in any imagery prior to 2011, but appeared in imagery in 2011 (and after) that indicate TBI, but has several incidents of concussive events, not just one.  No one from the DoD asked him if he had any blackouts, saw stars, was dizzy or “got my bell rang.”  These questions were only raised after extensive testing and counseling by the VA in Oakland, California.  Chronic anxiety disorder, PTSD and TBI are all conditions that usually make the service member “unfit for duty.”  The Air Force diagnosed a mental disorder and then declared him fit for duty even though he was not able to perform his job requirements, fulfill his military responsibilities, be deployed, or wear his equipment and gear.  The VA using the same criteria in Appendix DD gave him a TBI rating meaning that the TBI criteria was present and service connected.  Chronic anxiety disorder is considered an “unfitting condition” if it interferes with your ability to perform your duties or affects your military performance.  Due to the diagnosis, the Air Force prevented him from having a security clearance, carrying a weapon and unable to deploy.  Thus, this is by definition, an “unfitting condition.”  The applicant was suffering from TBI and other conditions that make him “unfit for duty” or unable to work.  He should have begun the PEB/MEB Process and separated with a military disability retirement pay rating of 100%.  However, the Air Force medical staff did not determine that TBI was present (even with the presence of imagery, the same imagery two separate VA physicians observed and diagnosed TBI, contrary to the Air Force physicians) or that he was suffering from TBI but concluded he was suffering from other mental issues.  The Air Force concluded his anxiety was so severe that he was unfit to carry a weapon, have a security clearance and deploy but also concluded he was “fit for duty.”  Further, the Air Force never ordered a six (6) month medical review of the anxiety.  He was erroneously and unjustly found “fit for duty” so his commander could give him disciplinary action.  It is clear the Air Force failed to correctly diagnosis him and this Board can now correct that error and the injustice by awarding him a 100% military disability rating and subsequent monthly pay and back pay.  There is physical evidence of TBI and two medical doctors who specialize in neurology diagnosed the applicant with TBI using the same imagery from the Air Force.  The first diagnosis came within a year of separation.  There is evidence of PTSD in the applicant’s medical records but the Air Force purposely did not put TBI and PTSD in the applicant’s evaluation because it would have required a medical board.

The complete response is at Exhibit F.

ADDITIONAL AIR FORCE EVALUATION

The Medical Advisor states that based upon a preponderance of objective service evidence, the applicant’s narrative reason for separation and honorable service characterization were neither errant nor unjust.  The applicant’s exceptional duty performance throughout his military service, and the absence of any permanent profile restrictions prohibiting worldwide qualification, reflect no impediments to duty warranting referral for MEB/PEB processing.  The applicant’s principal service mental health diagnosis at the time, Adjustment Disorder, would not trigger DES processing.  Although Anxiety Disorder appears in the treatment record, dating from calendar year (CY) 2006, the applicant’s officer performance reports and decorations, provide “better evidence” of his ability to perform the duties of his office, grade, rank, and rating; notwithstanding the relative acute presentation or exacerbation in Feb 11.  Based upon the preponderance of service medical evidence, the applicant’s principal diagnosis of Adjustment Disorder, although also potentially mitigating in a “dual-action” misconduct discharge scenario, would have been considered an unsuitable medical condition; not eligible for compensation through the military Disability Evaluation System; but at best supporting an honorable discharge. 

The Medical Advisor opines that there is sufficient evidence upon which the Board may exercise liberal consideration for granting the applicant’s petition.  The Medical Advisor states the notification of divorce while deployed was likely a sufficient trigger or contributed to a change in behavior upon his return from deployment; although the specific acts of misconduct [written aspects of both LORs] do not appear to be beyond his span of impulse control.  The counseling sessions that followed resulting in the diagnosis of Adjustment Disorder, albeit largely made by a clinical social worker, appear related more so to interpersonal marital problems; although contributory effects of TBI could not be ruled out, given the relative recent return from deployment.  Anxiety Disorder appears in the record from CY2006, but was never disqualifying.  TBI was not diagnosed during service.  The applicant was granted a voluntary discharge with an honorable service characterization.  His demonstrated performance up to his final year of service was, otherwise, incongruent with an unfit finding by a Physical Evaluation Board.  There is generous post-service evidence of a mental functional impairment, that evidence was acquired through interviews and examinations conducted at least 2 years post-service and was not reflected as disqualifying impairments at the time of his discharge.

The complete advisory opinion is at Exhibit G.

APPLICANT’S REVIEW OF ADDITIONAL AIR FORCE EVALUATION

The Board sent a copy of the advisory opinion to the applicant on 3 Apr 19 for comment (Exhibit H).  On 12 May 2020, the applicant responded stating the advisory contained false information.  The VA concluded he was totally and permanently disabled due solely to his service-connected disabilities.  The VA using the exact same criteria as the DoD already awarded him a 70 percent disability rating for anxiety disorder.  There are no abnormalities in the Magnetic Resonance Imaging (MRI) prior to 2011; in 2011 and after there are brain abnormalities.  The 2011 MRI shows damage to the brain while on active duty.  The MRIs are the objectification of the brain injury and thus physical proof.  In 2011, most radiologists in the United States were not trained to identify TBI.  It is imperative that someone who has suffered a TBI and has ongoing symptoms for more than six months to be certain that the brain MRI is not showing an undiagnosed TBI.  This was not the case for him until after he went to the VA.  Without any positive tests for certain autoimmune diseases, Lyme disease, Lupus, etc., coupled with the fact that he suffered and was diagnosed with depression and anxiety should have been a red flag that something was medically wrong and thus indicate that there was a brain trauma.  Bottom-line, abnormalities in the white matter of the brain indicate trauma.  The commander had already made up his mind that he was getting administrative action before the incidents leading to the LOR.  This in itself is unjust and unfair.  In further support of his request, the applicant provides a timeline and various other documents associated with his request. 

The complete response is at Exhibit I.

FINDINGS AND CONCLUSION

1.  The application was timely filed.

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

3.  After reviewing all Exhibits, the Board concludes the applicant is not the victim of an error or injustice.  While the applicant contends he was erroneously and unjustly found "fit for duty" and was essentially separated from active duty without an MEB, he has not provided substantial evidence showing that he had unfitting medical conditions at the time of his separation that would have required his processing through the Military Disability Evaluation System, a prerequisite to a medical discharge.  The Board also notes the Social Security Administration and the DVA both determined the applicant was disabled; however, the Board does not find this evidence sufficient to determine the applicant was improperly separated from active duty in 2011.  Based on the preponderance of the evidence, it appears the applicant’s request to separate under the Voluntary Separation Pay (VSP) Program effective 1 Oct 11, was properly adjudicated and the Board found no evidence that would lead them to believe the applicant’s separation was in error or contrary to the governing Air Force instructions.  Therefore, the Board concurs with the rationale and recommendations of AFPC/DP2STM, the Psychiatric Consultant and the Medical Advisor and finds a preponderance of the evidence does not substantiate the applicant’s contentions.  Finally, the Board is satisfied that the application of liberal consideration does not warrant relief.  Therefore, the Board recommends against correcting the applicant’s records.

RECOMMENDATION

The Board recommends informing the applicant the evidence did not demonstrate material error or injustice, and the Board will reconsider the application only upon receipt of relevant evidence not already presented.

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-2019-01846 in Executive Session on 29 Jan 20 and 23 Jul 20:

, Panel Chair
, Panel Member
, Panel Member

All members voted against correcting the record.  The panel considered the following:

Exhibit A:	Application, DD Form 149, w/atchs, dated 2 Feb 19.
Exhibit B:	Documentary evidence, including relevant excerpts from official records.
Exhibit C:	Advisory opinion, AFPC/DP2STM, dated 19 Jun 19.
Exhibit D:	Advisory opinion, Psychiatric Consultant, dated 16 Aug 19.
Exhibit E:	Notification of advisory, SAF/MRBC to applicant, dated 8 Jan 20.
Exhibit F:	Applicant’s rebuttal, dated 13 Feb 20.  
Exhibit G:	Additional Medical Advisory dated 19 Mar 20.
Exhibit H:	Notification of advisory, SAF/MRBC to applicant, dated 3 Apr 20.
Exhibit I:	Applicant’s rebuttal, dated 12 May 20.

Taken together with all Exhibits, this document constitutes the true and complete Record of Proceedings, as required by AFI 36-2603, paragraph 4.11.9, for BC-2019-01846