RECORD OF PROCEEDINGS

IN THE MATTER OF:	DOCKET NUMBER: BC-2019-03320

XXXXXXXXXX	COUNSEL: XXXXXXXXXX

	HEARING REQUESTED: YES

APPLICANT’S REQUEST

He be medically retired for his Post-Traumatic Stress Disorder (PTSD) with the associated back pay.

APPLICANT’S CONTENTIONS

Given his recent Department of Veterans (DVA) disability rating of 90%, he respectfully requests a medical retirement.  His duties required dealing with people dying that gave him anxiety and depression.  Events that triggered his PTSD were seeing dead bodies and people dying right in front of him.  He has now been properly diagnosed by the DVA with PTSD.  

He experienced sleepless nights, awful nightmares about dying, which made him worry about losing loved ones.  He had an impeccable record; however, he had issues concentrating, abused alcohol, loss of interest, and was emotionally numb.  He lost his Non-Commissioned Officer (NCO) status after receiving an Article 15 for being derelict in his duties.    

He also experienced severe back pain and was medically separated with 10% severance pay.  He appealed to the Physical Disability Review Board (PDRB); however, they were unable to grant request.  Counsel believes the Veterans Affairs Schedule for Rating Disabilities (VASRD) was grossly misapplied.  Doctors advised him that his chronic pain, depression, and PTSD, would be with him indefinitely.  His medical records highlight his PTSD-triggering events – “dead bodies and [seeing] people die in front of him.”

The applicant’s complete submission is at Exhibit A.

STATEMENT OF FACTS

The applicant is a former Regular Air Force staff sergeant (E-5).

AF Form 356, Findings and Recommended Disposition USAF Physical Evaluation Board, dated 21 Sep 01, reflects the applicant was recommended for separation with a 10% disability rating for his unfitting condition of “CHRONIC LOW BACK PAIN, STATUS POST BILATERAL HEMILAMNECTOMY AND DISKECTOMY.”

According to the applicant’s DD Form 214, Certificate of Release or Discharge from Active Duty, he received an honorable discharge effective 6 Nov 01 with a narrative reason for separation of “DISABILITY, SEVERANCE PAY” after serving 7 years, 5 months, and 21 days of active service.  He also had 9 years and 11 days of inactive service.

Per PDBR PD-2010-00093, dated 25 Feb 11, the PDBR recommended his disability rating of 10% be increased to 20% for his unfitting condition.  Specifically, his unfitting medical condition of Chronic Low Back Pain, VASRD 5295, rated at 10% was changed to Back Pain Condition, VASRD Code 5293, rated at 20%.

For more information, see the excerpt of the applicant’s record at Exhibit B and the advisory at Exhibit C.

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 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.  Copies of the Board guidance memoranda are at Exhibit E.

AIR FORCE EVALUATION

The BCMR Psychological Advisor recommends denying the applicant’s request for a medical retirement.  Liberal consideration has been applied to the applicant’s request due to his contention of having PTSD.  However, there is no evidence that he had any unfitting mental health conditions to include PTSD or similar conditions at the snapshot in time that would meet criteria for a medical retirement from service.

The applicant and his legal counsel are contending that the applicant developed PTSD from trauma he sustained from dealing with the dying and cadavers during his military service and is requesting to receive retroactive medical retirement for PTSD.  A review of his military records found no evidence that he was ever diagnosed with PTSD in service.  During his first period of active duty service, there are records he experienced anxiety, sleeplessness, and some depression primarily caused by work stress, which could be caused by his military service as reported and trauma from a motor vehicle accident.  These may be considered PTSD like symptoms, but there are no records of any trauma experienced by his military duties working with the dying or cadavers in his military records as contended.  Nonetheless, the applicant was never placed on a Duty Limiting Condition (DLC) profile or deemed not worldwide qualified due to a mental health condition.  There are also no records indicating that his mental health condition interfered with his ability to reasonably perform his military duties in accordance to his rank, grade, rating, or office. 

Making a report or receiving a mental health diagnosis while in service does not automatically qualify a service member to be eligible to enter into the Medical Evaluation Board (MEB) or be discharged from service.  Demonstration over a certain a period of time that a mental health condition(s) has significantly interfered or impacted the service member’s functioning in a military setting or impaired the service member’s ability to perform his or her duties are important factors in determining unfitness.  The applicant’s mental health condition to include anxiety at this snapshot in time of service did not elevate to a level that would deem him be eligible for a referral to the MEB.  Despite his reported anxiety during this first period of active duty service, he was able to successfully complete his term service requirement and earned an honorable discharge signifying minimal impairment to his overall functioning.  

The applicant appeared to have been able to overcome his anxiety or at least his anxiety did not appear to have affected his functioning in that he was able to gain enlistment into the ANG and transfer to active duty service for the second time after his first term of service successfully.  He denied having any anxiety or other mental health issues during the enlistment and transfer processes and as such, he was presumed to be fit for duty.  During his second period of active duty service, there were no records of any mental health treatment, evaluations or issues reported. He was referred to the MEB and found unfitting for continued service for his back pain/issues and no mental health conditions were identified or considered as unfitting.  The applicant submitted a Letter of Exception, dated 27 Aug 01 in response to his MEB referral and discussed his back issues and made no statement regarding his mental health issues.  

The applicant was diagnosed several years post-service with Major Depressive Disorder (MDD) and then later changed to PTSD within the last two years by the DVA.  His PTSD diagnosis is not deputed; however, it is important to be reminded that mental conditions and symptoms may take years to develop in order for them to meet full diagnostic criteria for a disorder and could be aggravated by other stressors especially post service.  This appears to be the case for the applicant as it was several years post service that he was diagnosed with PTSD due to increase and severity of symptoms over time.  He did not report having any PTSD or PTSD like symptoms during his second term of active duty service prior to his final discharge from service.  He did during his first term of active duty service, but was not severe enough to render him unfit for duty or exclude him from being able to re-enlist.  His symptoms/conditions reported during his first term of service are considered prior service impairments and there is no evidence that these conditions were aggravated beyond the natural progression of disease during his second/final term of active duty service. 

The difference between the military and DVA disability rating/compensation is:  The military’s 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 VA, 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 VA may also conduct periodic reevaluations for the purpose of adjusting the disability rating awards as the level of impairment from a given medical condition may vary [improve or worsen] over the lifetime of the veteran.
 
The complete advisory opinion is at Exhibit C.

APPLICANT’S REVIEW OF AIR FORCE EVALUATION

The Board sent a copy of the advisory opinion to the applicant on 27 May 20 for comment (Exhibit D), but has received no response.

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.  The Board concurs with the rationale and recommendation of BCMR Psychological Advisor and finds a preponderance of the evidence does not substantiate the applicant’s contentions.  Therefore, the Board recommends against correcting the applicant’s records.

4.  The applicant has not shown a personal appearance, with or without counsel, would materially add to the Board’s understanding of the issues involved.

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-2019-03320 in Executive Session on 29 Sep 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 12 Jun 19.
Exhibit B:	Documentary evidence, including relevant excerpts from official records.
Exhibit C:	Advisory opinion, BCMR Psychological Advisor, dated 9 Apr 20.
Exhibit D:	Notification of advisory, SAF/MRBC to applicant, dated 27 May 20.
Exhibit E:  Clarifying Guidance Memoranda, various dates.

Taken together with all Exhibits, this document constitutes the true and complete Record of Proceedings pertaining to Docket Number BC-2019-03320, as required by AFI 36-2603, paragraph 4.11.9.