RECORD OF PROCEEDINGS

IN THE MATTER OF:	DOCKET NUMBER: BC-2019-03826

XXXXXXXXXXXXXXX	COUNSEL: NONE

	HEARING REQUESTED: NO

APPLICANT’S REQUEST

1.  His Medical Evaluation Board (MEB) record be corrected to include Post Traumatic Stress Disorder (PTSD).

2.  His MEB record be corrected to reflect that he had two segments and two additional facet joint segments of his back that were damaged which resulted in his medical discharge.  (This request was previously considered and denied by the Physical Disability Board of Review (PDBR).  According to Department of Defense Instruction 6040.44, the applicant is not eligible to seek relief from the AFBCMR, so Board action is not required on this portion of his request).

APPLICANT’S CONTENTIONS

The Department of Veterans Affairs (VA) rated his PTSD at 50 percent immediately following his discharge from the service.  The MEB did not take his PTSD into account, which aggravated the pain in his back.  He was never provided any assistance or support.  Without the PTSD finding being in his MEB record, he was given a medical discharge with a 10 percent disability rating when he was authorized a medical retirement with at least a 60 percent disability rating.  Once this is corrected in his MEB records, he can then appeal for a medical retirement.  For more than 12 years, he has been ineligible for retirement benefits due to inaccuracies by the medical personnel and clerical errors.

The applicant’s complete submission, with attachments, is at Exhibit A.

STATEMENT OF FACTS

The applicant is an honorably discharged Air Force technical sergeant (E-6).

On 13 Apr 07, the applicant’s commander notified the Medical Evaluation Board (MEB) that the applicant was unable to perform all primary duties due to his medical conditions and recommended he be medically separated or retired.

On 15 May 07, the IPEB recommended the applicant be discharged with severance pay with a rating of 10% for the unfitting condition of chronic low back pain with radicular pain, with disc protrusion at L5-S1.

On 16 May 07, the applicant agreed with the findings and recommended disposition of the IPEB and waived the right to a formal PEB hearing.

On 17 May 07, the Secretary of the Air Force directed that the applicant be separated from active service for physical disability with severance pay.

On 26 Jun 07, the applicant was furnished an honorable discharge with a narrative reason for separation of “Discharge: Disability, Severance Pay,” and was credited with 12 years, 10 months, and 9 days of total active service.

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

APPLICABLE AUTHORITY

DoDI 6040.44 states in part that (1) As a result of requests for PDBR review, the covered individual or a surviving spouse, next of kin, or legal representative may not seek relief from the Board for Correction of Military Records operated by the Secretary of the Military Department concerned.  (2) The recommendation of the PDBR, once accepted by the respective Military Department, is final.

AIR FORCE EVALUATION

AFPC/DPFDD recommends denying the application.  Based on the documentation provided by the applicant and analysis of the facts, there is no evidence of an error or injustice.  Under Title 10, United States Code (U.S.C.), Physical Evaluation Boards must determine if a member’s condition(s) renders them unfit for continued military service relating to their office, grade, rank or rating.  The fact that a member may have other medical conditions does not mean that these conditions are necessarily unfitting for continued military service.  To be unfitting, the condition(s) must be such that it alone precludes the member from fulfilling their military duties.  Upon review of the documentation provided by the applicant, along with the medical case file, there is no evidence of any further unfitting conditions beyond the applicant’s back condition.  Additionally, the Air Force and the Department of Veteran’s Affairs (DVA) disability systems operate under separate laws.  Under the Air Force system (Title 10, U.S.C.), Physical Evaluation Boards must determine whether an airman’s medical condition renders them unfit for duty and apply the rating best associated with the level of disability at the time of disability processing (a snapshot in time).  That rating percentage determines the final disposition (discharge with severance pay, placement on the temporary disability retired list, permanent retirement) and is not subject to change after the service member has separated.  At the time of the applicant’s MEB processing, the board did not find his claimed PTSD to be unfitting.  There was no mention of PTSD, or any other psychiatric condition, found in the MEB case file or medical records.  Although the applicant claims several radiologic findings of the lumbar spine, the VA incorporated all of these under the rating for degenerative arthritis lumbar spine with intervertebral disc syndrome (IVDS).  AFPC/DPFDD does not recommend updating the MEB record to annotate damage in four separate segments of the back.  Such differentiation is not significant, since it is all rated together under degenerative arthritis lumbar spine with IVDS.

The complete advisory opinion is at Exhibit C.

The AFBCMR Psychological Advisor finds insufficient evidence to support a change to the applicant’s record.  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 be eligible for a referral to the MEB or would meet criteria for a medical retirement.  The applicant was never placed on a duty limiting conditions profile due to a mental health condition and was not deemed not  world-wide qualified from a mental health perspective.  Furthermore, the applicants’ commander’s report dated 13 Apr 07 discussed the impact his back issues had on his military duties but was silent on any observable mental health issues.  He did receive mental health treatment but it appeared his symptoms improved and he no longer needed treatment; his symptoms also resolved that he no longer met criteria for a mental health disorder diagnosis per his termination treatment note.  Receiving mental health treatment or a diagnosis in service does not automatically equate to the condition being considered unfit for continued service.  His mental condition never elevated to a level that significantly impacted his ability to reasonably perform his military duties in accordance to his office, rank, grade, or rating.  His psychiatric evaluation performed within one year of his discharge also found that his functional impairments were attributed to his back problems and not mental health condition, and his PTSD evaluation performed by the VA in 2010 found his symptoms had no impairment on his occupational functioning.  Thus, this psychological advisor finds insufficient evidence to support the applicant’s request for a medical retirement for PTSD.

The complete advisory opinion is at Exhibit D.

APPLICANT’S REVIEW OF AIR FORCE EVALUATION

The Board sent a copy of the advisory opinion to the applicant on 28 Apr 20 for comment (Exhibit E), but has received no response.

FINDINGS AND CONCLUSION

1.  The application was not 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 AFPC/DPFDD and the AFBCMR Psychological Advisor and finds a preponderance of the evidence does not substantiate the applicant’s contentions.  The Board also notes the applicant did not file the application within three years of discovering the alleged error or injustice, as required by Section 1552 of Title 10, United States Code, and Air Force Instruction 36-2603, Air Force Board for Correction of Military Records (AFBCMR).  The Board does not find it in the interest of justice to waive the three-year filing requirement.  Therefore, the Board finds the application untimely and recommends against correcting the applicant’s records.

RECOMMENDATION

The Board recommends informing the applicant the application was not timely filed; it would not be in the interest of justice to excuse the delay; 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-2019-03826 in Executive Session on 20 May 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, dated17 Jul 19.
Exhibit B:	Documentary evidence, including relevant excerpts from official records.
Exhibit C:	Advisory opinion, AFPC/DPFDD, dated 26 Nov 19.
Exhibit D:	Advisory opinion, AFBCMR Psychological Advisor, dated 20 Apr 20.
Exhibit E:	Notification of advisory, SAF/MRBC to applicant, dated 28 Apr 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.