RECORD OF PROCEEDINGS

IN THE MATTER OF:	DOCKET NUMBER: BC-2019-03739

XXXXXXXXXXXXXXX	COUNSEL: XXXXXXXXXX
	
		HEARING REQUESTED: YES

APPLICANT’S REQUEST

1. The service member be posthumously medically retired with entitlement to back pay and allowances to the original discharge date.

2. Correct the service member’s military record to accurately reflect the severity of his service-connected medical condition.

APPLICANT’S CONTENTIONS

The applicant is the daughter of the deceased service member and through counsel, she contends the service member’s social and industrial impairment was “definite” and most likely “considerable,” warranting a 30 percent rating and permanent medical retirement for Veterans Administration Schedule for Rating Disabilities (VASRD) code 9203, Schizophrenia, paranoid type effective the date of his discharge.

The Board decided other cases involving service members diagnosed with Schizophrenia as seen in BC-1998-02347 were the service member was awarded a medical discharge rated at 10 percent and BC-2015-02432 which contains the same rating problems as the service member’s yet the Board recommended permanent retirement for psychosis Not Otherwise Specified (NOS).

The service member was notified of his appeal rights on 15 Jan 13 but at that time his illness prevented him from submitting an application and the applicant was not informed until 14 Apr 17.

The applicant’s complete submission is at Exhibit A.

STATEMENT OF FACTS

The applicant is an honorably discharged Air Force airman first class (E-3).

On 15 Nov 61, the service member was honorably discharged for physical disability with entitlement to disability severance pay under VASRD code 9203, and credited with 2 years, 4 months and 16 days of total service.

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

APPLICABLE AUTHORITY

The Department of Defense (DoD) and the Department of Veterans Affairs (DVA) disability evaluation systems (DES) operate under two separate laws.  Under Title 10, United States Code, Physical Evaluation Boards (PEBs) must determine if a member's condition renders them unfit for continued military service relating to their office, grade, rank or rating.  The fact that a person may have a medical condition does not mean the condition is unfitting for continued military service.  To be unfitting, the condition must be such that it alone precludes the member from fulfilling their military duties.  If the board renders a finding of unfit, the law provides appropriate compensation due to the premature termination of their career.  Further, it must be noted the Air Force disability boards must rate disabilities based on the member's condition at the time of evaluation; in essence a snapshot of their condition at that time.  It is the charge of the DVA to pick up where the Air Force must, by law, leave off.  Under Title 38, the DVA may rate any service-connected condition based upon future employability or reevaluate based on changes in the severity of a condition.  This often results in different ratings by the two agencies.

On 3 Sep 14, the Secretary of Defense issued a memorandum providing guidance to military correction boards regarding liberal consideration for Vietnam veterans claiming Post-Traumatic Stress Disorder PTSD (Hagel Memo).  In addition, time limits to reconsider decisions would be liberally waived for applications covered by this guidance. 

Subsequent guidance expanded liberal consideration protections to include all veterans who requested a modification of their discharge, to include character of service, narrative reason for discharge and reenlistment code, due in whole or in part to any mental health condition rather than just PTSD or Traumatic Brain Injury, and included those veterans who were victims of sexual assault or sexual harassment.  Liberal consideration would be given to veterans petitioning for discharge relief when the application for relief is based in whole or in part on the aforementioned conditions.

Under Consideration of Mitigating Factors, it is noted that PTSD is not a likely cause of premeditated misconduct.  Correction Boards will exercise caution in weighing evidence of mitigation in all cases of misconduct by carefully considering the likely causal relationship of symptoms to the misconduct.  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.

Boards are directed to consider the following main questions when assessing requests due to mental health conditions including PTSD, TBI, sexual assault, or sexual harassment:

a. Did the veteran have a condition or experience that may excuse or mitigate the discharge?
b. Did that condition exist/experience occur during military service?
c. Does that condition or experience actually excuse or mitigate the discharge? 
d. Does that condition or experience outweigh the discharge?

Copies of all liberal consideration guidance memoranda can be found at Exhibit F.

AIR FORCE EVALUATION

The BCMR Psychological Advisor finds insufficient evidence to support the applicant’s request for a posthumous medical retirement. The Psychological Advisor extensively reviewed all submitted and available records and finds no demonstration of material error or injustice during the service member’s discharge processing from the service.  Based on the policy and guidance at the snapshot in time of service, the service member’s mental health condition, Schizophrenia, Paranoid Type, was considered to be unfit for continued military service. The question is not whether his condition was unfitting or if he had a valid Schizophrenia diagnosis/condition but whether he should have received a higher disability rating.  Due to the unavailable records, it is difficult to discern how chronic his condition or symptoms were at the snapshot in time and the rationale behind the PEBs decision to derive at severance pay, which appeared to have been 10 percent.  Assignments of disability ratings are based on the degree and level of impairment of a condition and its impact on an individual’s overall functioning.  It is to note that the service member was 19 years old at the time of discharge.  The age of onset for Schizophrenia for males typically ranges from the ages of 18 to 25 according to the Diagnostic and Statistical Manual of Mental Disorders.  Due to his age, it was highly unlikely his psychotic symptoms were chronic or severe at the time of service as compared to his conditions/symptoms later on in his life.  His symptoms may take time to develop to reach a level of severe impairment as it was demonstrated in his post-service treatment records.  Thus, this may be the reason for severance pay/low disability rating.  The submitted Department of Defense Directive 1332.18 Disability Evaluation System, dated on 6 Dec 62 stated disability ratings were determined based on the use of the VASRD, which is still in use in present time.  Again due to the missing military records, the rationale for the rating assignment was not available for review and to assess on whether there was an error that was identified during the rating process.

Liberal consideration is applied to the request due to a contended mental health condition.

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 18 Nov 20 for comment (Exhibit D), and the applicant replied on 18 Dec 20.  Other than the service member’s DVA diagnostic code and severance pay of $496.00 annotated on his DD Form 214, Certificate of Release or Discharge from Active Duty, there is no evidence the PEB concluded between 14 and 15 Nov 61; no rating is noted and no indication of whether he was provided information on his appeal rights. 

The government’s failure in its responsibility to maintain records should not be held against the service member nor should the fact be used by the government as the sole reason to deny his case.  A severely mentally ill person should not be held to the same burden of proof as a person capable of discerning reality and keeping organized records.  The evidence is clear that the service member spent six months as a psychiatric in-patient before being released to his family and was never returned to his unit after his initial admittance.  If the service member was never well enough to be put back to work pending discharge, he certainly rated more than a 10 percent disability.

The DSM in effect at the time of the service member’s diagnosis argues against the advisor’s speculation related to age.  It is clear from a comparison that the symptoms necessary for a diagnosis of Schizophrenia, paranoid type in 1961 would warrant a 100 percent rating by today’s standards.

The applicant’s complete response is at Exhibit E.

ADDITIONAL AIR FORCE EVALUATION

The BCMR Psychological Advisor provided an additional advisory opinion in response to the applicant’s rebuttal and indicated there is no change to the original opinion rendered.  The implicit and alleged errors and injustice in the former service member’s case by counsel’s rebuttal is acknowledged; however, the burden of proof has not been met to warrant the desired change of the military record.

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 26 May 21 for comment (Exhibit H), 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 former service member is not the victim of an error or injustice.  The Board concurs with the rationale and recommendation of the BCMR Psychological Advisor and finds a preponderance of the evidence does not substantiate the applicant’s contentions.  The Board considered liberal consideration and believes the service member’s mental health condition is not warranted to process through the Disability Evaluation System (DES) as a matter of equity or good conscience IAW DoDI 1332.18, Disability Evaluation System, Appendix 1 to Enclosure 3, paragraph 4.  The Board concurs with the rationale of the BCMR Psychological Advisor that although the service member’s mental health condition, Schizophrenia, Paranoid Type was unfitting; there is no evidence to indicate it warranted a higher disability rating.  Lastly, the Board notes the applicant’s assertions that there are BCMR cases significantly close in circumstances that were looked upon favorably and that similar consideration should be applied.  The Board notes that each case is considered on its own merits and the Board evaluates and analyzes the evidence presented in a case and does not recommend relief on one case simply because the situation being reviewed appears similar to another case.  Therefore, other than the applicant’s own assertions, the cases cited are not a controlling issue in the Board’s decision on the instant case.  As such, 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-2019-03739 in Executive Session on 22 Jan 21 and 29 Jul 21:

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 8 Jul 19.
Exhibit B:	Documentary evidence, including relevant excerpts from official records.
Exhibit C:	Advisory opinion, BCMR Psychological Advisor, dated 24 Apr 20.
Exhibit D:	Notification of advisory, SAF/MRBC to applicant, dated 18 Nov 20.
Exhibit E:	Applicant’s response, dated 18 Dec 20.
Exhibit F:	Notification of Clarifying Guidance, dated 4 Jan 21
Exhibit G:	Additional Advisory opinion, BCMR Psychological Advisor, dated 
		31 Mar 21.
Exhibit H:	Notification of advisory, SAF/MRBC to applicant, dated 26 May 21.

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.

							___________________________________
							Board Operations Manager, AFBCMR