RECORD OF PROCEEDINGS

IN THE MATTER OF:                                DOCKET NUMBER: BC-2019-03364

XXXXXXXXXXXX                                     COUNSEL: XXXXXXXXXXXXXXXXXX 

                                                                         HEARING REQUESTED: NOT INDICATED

APPLICANT’S REQUEST

His grade of master sergeant (MSgt, E-7) be restored.

His enlisted performance reports documenting fitness assessment (FA) failures be redacted.

The physical evaluation board (PEB) findings be amended to reflect he participated in remote drone combat operations for more than one year.

His discharge date be extended by 28 days to provide him with military retired pay for 20 years of service.

In an amended request, he be awarded the Remote Combat Effects Campaign Medal.  

APPLICANT’S CONTENTIONS

Counsel, on behalf of the applicant, states while his duties were classified, he was directly responsible for drone operations in combat theaters of operation and routinely witnessed death and maiming of enemy combatants.  Despite debilitating medical conditions, his commanders believed he was physically able to complete his FAs.  When he was unable to complete his FAs, he was demoted to the grade of technical sergeant (TSgt, E-6) and processed through the integrated disability evaluation system (IDES) for a medical retirement.  He was punished with a demotion for medical conditions that the Air Force believed were unfitting, so unfitting, he was medically retired.  The Air Force also failed to adhere to policy and permit him to submit a request for regular retirement or extend his retirement date 28 days to make him eligible for a length of service versus a medical retirement.

In 2014, his mental health began to worsen.  In Jun 15, he began mental health treatment for worsening depression and anxiety.  His conditions were the direct result of providing close air support.  While there is a difference between being 5,000 miles away and being physically deployed, the psychological effects are the same.  He was actively involved in the remote piloting of drones and witnessed the effects of his actions.  His repeated requests for a regular retirement was denied.  

Despite his numerous medical conditions that severely limited his ability to participate in his FAs, the applicant was ordered to take the FA, which he failed.  As a result, he was issued letters of counseling and reprimand and administratively demoted to the grade of TSgt on 16 Mar 16.  He was cleared to take the FA by his medical providers but failed three FAs on 29 Jun 15, 8 Oct 15 and 27 Jan 16.  The administrative demotion was improper.  AFI 36-2905, Fitness Program, recognizes that some airmen are physically unable to complete the FA and appropriate authorities grant waivers for those pending retirement or are in an austere environment.  Although he was suffering from debilitating migraine headaches and severe anxiety, he was required to complete his FAs.  On 27 Jan 16, a military medical provider determined he had no medical conditions that precluded him from achieving a passing score although his conditions were actively being considered for a medical evaluation board (MEB) and disability retirement.  

In Mar 16, his commander, with supporting documentation from an Air Force physician assistant, recommended he be administratively demoted because he failed to live up to standards due to the failed FAs.  Prior to his new commander assuming command and since 1999, he never received an EPR rating of less than “truly among the best” and his commanders considered him ready for “immediate promotion.”  

He repeatedly asked his PEB liaison officer (PEBLO), his commanders and the personnel office as to whether he could submit his paperwork for a regular years of service retirement or if his approved retirement date could be extended to attain 20 years of service.  AFI 36-3203, Service Retirements, AFI 36-3212, Physical Evaluation for Retention, Retirement and the AFPC Disability Program website provide guidance.  However, he was met with resistance and told he was in the disability process, which controlled when he would retire.  He was also told he would get more (70 percent) than if he would retire for years of service (50 percent), along with other inaccurate misinformation.  

He should not have been administratively demoted and he should be granted the additional days to attain 20 years of active service.  The applicant was demoted not because he refused to take the FA or that he did not participate in nutritional or fitness counseling but because he was a “red-mark” on his commander’s monthly reports to higher headquarters.  His only transgression was he was medically ill and could not perform at peak performance, which was unsatisfactory to his commander.  Counsel provides excerpts of military and medical records and the Secretary of Defense Memorandum to the BCMR for Modification of Discharge Due to Mental Health Conditions, Sexual Assaults or Sexual Harassment dated 25 Aug 17.  The applicant’s complete submission is at Exhibit A.

STATEMENT OF FACTS

The applicant is a retired Air Force technical sergeant (TSgt, E-6).

The applicant received a referral EPR for the period ending 30 Sep 15 for unsatisfactory score on the FA.  
On 22 Oct 15, he received a letter of reprimand (LOR) for two FA failures in a 24 month period.  

Per the Administrative Demotion of Airmen Memorandum and Indorsements dated 16 Mar 16, his commander recommended he be administratively demoted to the grade of TSgt.  Specifically between 29 Jun 15 and 27 Jan 16, he failed his FA on three occasions.  The applicant was advised if he was retirement eligible, he could apply for retirement.  

AF Form 618, Medical Evaluation Board (MEB) Report, dated 3 Oct 16, shows the applicant was referred to an IPEB for his condition of generalized anxiety disorder (GAD).  The Commander’s Memorandum to the MEB/PEB dated 31 May 16, shows his commander recommended he not be retained.      

On 22 Nov 16, the IPEB recommended the applicant be permanently retired for disability with a compensable rating of 70 percent for his condition of major depressive disorder (MDD) with GAD.  The IPEB considered all other medical conditions (Category II and III) rated by the Veterans Affairs (VA) as required under the integrated disability evaluation system (IDES) and found the conditions were not currently unfitting for duty.  

The VA DES proposed rating dated 14 Nov 16 listed all of the applicant’s service connected disabilities (MDD with GAD, lumbosacral strain with degenerative arthritis, tinnitus, hypertension, crepitus of the right temporomandibular joint, right wrist pain right knee patellofemoral syndrome, left knee patellofemoral syndrome, right ankle sprain, erectile dysfunction, anemia, onychomycosis/tinea pedis and migraines) and recommended a proposed rating of 80 percent.  

He received a subsequent referral EPR for the period ending 30 Nov 16 for four unsatisfactory FAs.  

On 2 Dec 16, the applicant agreed with the findings and recommendations of the IPEB and waived his right to a formal PEB hearing.  

On 22 Mar 17, the Secretary of the Personnel Council (SAFPC) determined the applicant did not serve satisfactorily in any higher grade within the meaning of 10 U.S.C. § 1372.  

On 28 Jul 17, the applicant was discharged from active duty and retired effective 29 Jul 17 in the grade of TSgt for permanent disability with a compensable percentage for physical disability of 70 percent.  The applicant was credited with 19 years, 11 months and 2 days of active duty service. 

On 18 May 20, the BCMR administratively closed the case per counsel’s 14 May 20 request for additional time to respond to the advisory opinions.  On 19 Jun 20, the case was re-opened per counsel’s request and submission of a rebuttal response.  For more information, see the excerpt of the applicant’s record at Exhibit B and the advisory opinions at Exhibits C, D and E.  

APPLICABLE AUTHORITY

10 U.S.C. § 1372, Grade on retirement for physical disability:  a member of the Armed Forces who is retired for physical disability is entitled to the grade equivalent to the highest grade in which he served satisfactorily as determined by the Secretary of the Military Department. 

AFI 36-3203, Service Retirements, eligible active component members may apply for an active duty retirement no earlier than one year and no later than 120 days before the desired retirement date.  At the time the applicant was notified of the administrative demotion (Mar 16), he was not eligible to request retirement in lieu of the administrative demotion action since he had not completed 19 years of active duty service (total active federal military service date: 27 Aug 97).

AFMAN 36-2806, Awards and Memorialization Program, Remote Combat Effects Campaign Medal was approved by the Secretary of the Air Force to recognize airmen in a non-deployed status who directly participated in a DOD combat operation from a remote location.  Initial qualifying DOD combat operations are as follows: Enduring Freedom, Iraqi Freedom, New Dawn, Nomad Shadow, Freedom’s Sentinel Inherent Resolve, Odyssey Lightning and Pacific Eagle-Philippines.  The medal is awarded to airmen who on or after 11 Sep 01 distinguished themselves by direct participation in a DOD combat operation under the following conditions:

a.	Assigned or attached to a unit directing supporting a DOD combat operation;
b.	Served in a remotely piloted aircraft; cyber; space; or intelligence, surveillance and reconnaissance career field;
c.	Personally provided hands-on employment of a weapons system, including remote employment or other activities that had a direct, immediate and on-site effect on the outcome of an engagement or similar operation and;
d.	Was not physically exposed to hostile actions or at risk of exposure to hostile action.

Airmen will wear the first Remote Combat Effects Campaign Medal awarded and will wear a bronze service star for any subsequent medal awarded to recognize each qualifying DOD combat operations in which the airman participated for one or more days.

AIR FORCE EVALUATION

AFPC/DP2SSM recommends denial for restoration of his grade of MSgt.  Although the applicant had a history of medication and medical issues that could have become a factor in the failed FAs, per AFI 36-2907, Unfavorable Information File (UIF) Program, the commander used the optional administrative and personnel actions appropriately for the offense.  The applicant failed three FAs on 29 Jun 15, 8 Oct 15 and 27 Jan 16.  The three failures were the basis for the administrative demotion action. The applicant contends he received a score of zero on all three assessments due to his medical conditions, which caused him to have panic attacks as the FA routines began.  However, per AFI 36-2905, unit commanders exercise discretion when selecting optional command actions keeping in consideration the need for progressive discipline.  The complete advisory opinion is at Exhibit C.

AFPC/DPFDD recommends denial of his requests.  The applicant deployed to Korea, Qatar and Baghdad while in the military but no traumatic events were described.  Counsel states he was directly responsible for drone operations in combat theaters and routinely witnessed death and maiming of enemy combatants as a direct result of his actions.  Although the applicant may have observed some traumatic events, he was not diagnosed with post-traumatic stress disorder (PTSD).  An overview of his Air Force Specialty Code 3D1X2, Cyber Transport Systems, includes responsibility for ensuring computer and communications networks function optimally.  Per DODI 1332.18, “Combat Related” covers injuries and diseases attributable to the specific dangers associated with armed conflict or the preparation of training for armed conflict.  A disability is considered combat related if it makes the member unfit and the preponderance of evidences shows it was incurred under 1) as a direct result of armed conflict; 2) while engaged in hazardous service; 3) under conditions simulating war; or 4) caused by an instrumentality of war.  At the present time, the Department of Defense (DOD) does not deem remote pilots (and other personnel who work with unmanned aerial vehicles) meet the definition of combat related.  

There is also no evidence the applicant requested to extend his period of service by 28 days to bring his total years of active service to 20 years in order to qualify for a length of service versus a medical retirement.  The Chief of the Physical Disability Division would have generally approved an extension of up to 30 days, with commander’s recommendation, if he would have submitted a formal request upon completion of the PEB process.  AFI 36-3212, Physical Evaluation for Retention, Retirement and Separation, dated 2 Feb 06, in effect at the time, states AFPC may approve limited extensions, normally not to exceed 30 days in cases where a member is facing an unusual personal hardship over and above that encountered by other members being retired or discharged for disability.

Since the applicant previously held the higher grade of MSgt, a grade determination was required prior to completion of the PEB in accordance with AFI 36-3212.  The SAFPC grade determination was completed on 22 Mar 17 and directed he be retired in his current grade of TSgt because they determined he did not service satisfactorily in any higher grade within the meaning of 10 U.S.C. § 1372.  The complete advisory is at Exhibit D.  

SAFPC recommends partial grant.  Under today’s standards, it is appropriate to correct the applicant’s record to show on 22 Mar 17, competent authority concluded he served satisfactorily in the grade of MSgt and was retired in the grade of MSgt, instead of TSgt.  This recommendation should not be misconstrued to mean the demotion was somehow invalid.  It merely means the grade determination should have concluded he served satisfactorily in the higher grade in accordance with 10 U.S.C. § 1372.  The applicant had over five years of otherwise excellent service in the grade of MSgt.  There is no evidence of any misconduct not related to his FA failures; however, the board concluded because his unfitting medical condition was not related to the reason he was demoted, his service in the highest grade was not satisfactory.  After a thorough review of the evidence, the outcome would be different under today’s standard.  In cases where FA failures are the basis for an administrative demotion, the board views the reason for the demotion as a failure to meet standards, rather than misconduct.  The board frequently finds service in the highest grade satisfactory when there is little or no unrelated aggravating misconduct and the member’s service in the highest grade held is both lengthy and otherwise meritorious.  The complete advisory is at Exhibit E.  

APPLICANT’S REVIEW OF AIR FORCE EVALUATION

The Board sent copies of the advisory opinions to counsel on 27 Apr 20 for comment (Exhibit F).  In a response dated 19 Jun 20, counsel requested he also be awarded the Remote Combat Effects Campaign Medal.  

Counsel vehemently disagrees with AFPC/DP2SSM that his grade of MSgt not be restored.  The reasons for the FA failures were his medical conditions and the 16 prescribed medications.  The advisory is a copy and paste of AFI provisions and adds no value for the Board.   

Counsel concurs with the SAFPC recommendation the applicant’s retired grade be corrected.  The enlisted grade determination (EGD) misapplied the standard in which his conduct was measured.  The EGD should have concluded he served satisfactorily in the higher grade in accordance with 10 U.S.C. § 1372.  Counsel requests the Board adopt the recommendation he served satisfactorily in the grade of MSgt and was therefore retired in the grade of MSgt, instead of TSgt.

Counsel disagrees with AFPC/DPFDD.  While he was not the “trigger puller,” he was causally responsible because his work allowed the drones and pilots to execute their missions thereby triggering PTSD like symptoms.  The applicant is not requesting his records reflect he served in combat as defined in DODI 1332.18, but merely his record reflect he was indirectly involved with remote combat operations.  The applicant should be awarded the Remote Combat Effects Campaign Medal, with an appropriate number of bronze services stars, for his service in qualifying operations.  

He be should be permitted to request an extension of his retirement date by 30 days.  He was met with resistance and was repeatedly told he could not apply for retirement until he was 12-months out and that he was under the disability process.  Had the personnel responsible for his personnel matters been knowledgeable of the IDES and retirement processes (or cared), they would have been aware AFI 36-3212 permitted the extension.  Given AFI 36-3212 permitted the extension, the advisory correctly opines the request for an extension up to 30 days, with the commander’s recommendation would have been approved had it been requested.  He would have then requested retirement with 20 years, 0 months and 3 days of service.  Counsel requests his active duty date be extended to 27 Aug 17 and his record be corrected to reflect an active duty retirement for years of service.  

His commander proceeded as if the applicant was “faking” or choosing to fail his FAs.  His commander ignored his documented medical conditions, which precluded him from completing his FAs.  His grade of MSgt should be restored to the demotion date of 16 Mar 16, 16 months prior to his medical retirement.  Alternately, he should be reinstated the grade of MSgt effective the date of his retirement date due to the EGD being incorrectly applied.  

He has done nothing wrong and committed no misconduct.  He was medically unfit for military service.  However, his commanders punished him for being ill and being unable to push his medical conditions aside in order to pass a FA.  His commander went to the extreme and administratively demoted him before exercising other options available and having the knowledge of his disabilities.  His grade of MSgt should be restored as early as Mar 16 or no later than his retirement date and he should be retired for years of service at 20-years.  The complete submission is at Exhibit I.  

FINDINGS AND CONCLUSION

1.  The application was timely filed.

2.  The applicant did not exhausted all available non-judicial relief before applying to the Board for award of the Remote Combat Effects Campaign Medal.  

3.  After reviewing all Exhibits, the Board concludes the applicant is the victim of an error or injustice.  The Board concurs with the rationale and recommendation of SAF/MRBP and finds a preponderance of the evidence substantiates counsel’s contentions in part.  Specifically, counsel has provided sufficient evidence to find the applicant served satisfactorily in the higher grade of MSgt within the meaning of 10 U.S.C. § 1372 to justify granting the request for change of his retirement for permanent disability be in the grade of MSgt, instead of TSgt.  However, for the remainder of the requests, the evidence presented did not demonstrate an error or injustice, and the Board therefore finds no basis to recommend granting that portion of the application.  The Board notes counsel contends the applicant was unable to complete his FAs due to his medical conditions and requests the administrative demotion to the grade of TSgt be set aside and his referral EPRs for FA failures be redacted.  However, there is insufficient evidence to substantiate his medical conditions caused his FA failures.  It appears the applicant was medically cleared to complete his FAs and despite rehabilitative efforts repeatedly failed to meet standards.  As pointed out by AFPC/DP2SSM and per AFI 36-2905, his commander’s actions on the referral EPRs and administrative demotion were within his authority and discretion.  Counsel also requests his PEB findings be amended to show he participated in combat operations for more than one year.  However, as pointed out by AFPC/DPFDD, the DOD does not deem remote pilots and other personnel who work with unmanned aerial vehicles (UAV) meet the definition of combat related.  Accordingly, the Board finds no evidence of an error or injustice with the PEB findings and note the applicant concurred with the findings and recommendations of the PEB on 2 Dec 16.  Counsel also requests he be credited with an additional 28 days of service to qualify for a length of service retirement; however, the Board does not find it in the interest of justice to extend his date of discharge and credit him for a period of time he did not serve solely to permit him to receive military retired pay.  In this respect, the Board notes the applicant was not eligible to request retirement in lieu of administrative demotion since he was not within 12 months of retirement eligibility at the time.  Further, counsel contends the applicant was miscounseled regarding his retirement date upon completion of the IDES process and was not afforded the opportunity to request an extension; however, he has provided no evidence to substantiate this to be the case.  With respect to counsel’s request for award of the Remote Combat Effects Campaign Medal, he may submit his request to AFPC and direct any questions by e-mail at afpc.dp1ssp.recognitionprocess@us.af.mil.  Should the applicant not receive a favorable decision on his request, he may request the Board reconsider his request for award of the medal.  Therefore, the Board recommends correcting the applicant’s records as indicated below.

RECOMMENDATION

The pertinent military records of the Department of the Air Force relating to the APPLICANT be corrected to show:

a.	On 22 March 2017, competent authority determined he served satisfactorily in 
the higher grade of master sergeant (MSgt, E-7) within the meaning of 10 U.S.C. § 1372.

b.	 His Special Order, Number ACD-01795, dated 3 April 2017, be amended to read 
effective 29 July 2017, he was permanently disability retired in the grade of MSgt, instead of TSgt. 

However, regarding the remainder of the applicant’s request, the Board recommends informing the applicant 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-2019-03364 in Executive Session on 6 May 20 and 1 Jul 20:

 , Panel Chair
 , Panel Member
 , Panel Member

All members voted to correct the record.  The panel considered the following:

Exhibit A:	Application, DD Form 149, w/atchs, dated 9 Jul 19.
Exhibit B:	Documentary evidence, including relevant excerpts from official records.
Exhibit C:	Advisory opinion, AFPC/DP2SSM, dated 10 Jan 20.
Exhibit D:  Advisory opinion, AFPC/DPFDD, dated 23 Jan 20.
Exhibit E:  Advisory opinion, SAF/MRBP, dated 24 Apr 20.
Exhibit F:	Notification of advisory, SAF/MRBC to applicant, dated 27 Apr 20.
Exhibit G: Email, Counsel, dated 14 May 20.
Exhibit H: Letter, SAF/MRBC, dated 18 May 20.
Exhibit I:  Counsel’s response, w/atchs, dated 19 Jun 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.