RECORD OF PROCEEDINGS

IN THE MATTER OF:	DOCKET NUMBER: BC-2019-04208

XXXXXXXXXX	COUNSEL: XXXXXXXXXX

	HEARING REQUESTED: YES

APPLICANT’S REQUEST

His discharge be changed to a medical retirement.

APPLICANT’S CONTENTIONS

Counsel, on behalf of the applicant, states that he should have been processed through the Disability Evaluation System (DES) and found unfit and medically retired for his panic disorder instead of denied DES processing and administratively separated pursuant to AFR 39-10, Administrative Separation of Airmen, for a condition “that interfere(s) with the military service – not disability.”  His medical records indicate a disability rating of approximately 70 percent for his panic disorder, more than enough for him to qualify for a medical retirement.  The medical retirement should be retroactive to the date of his discharge.  His records should be corrected to allow him to receive the medical retirement benefits and/or DES processing that he was unjustly denied.

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

STATEMENT OF FACTS

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

On 20 Mar 85, a commander-directed mental health evaluation was conducted on the applicant.  The diagnosis was DSM-III, Axis I: 300.01, Panic Disorder, as manifested by tachycardia, shortness of breath, dizziness, feelings of unreality, hot and cold flashes, sweating, faintness and trembling episodes, secondary to gender identity problems.  The Chief Clinical Psychologist recommended administrative separation, at the discretion of the commander.

On 3 Apr 85, the applicant was notified of his commander’s intent to recommend that he be discharged from the Air Force, under the provisions of AFR 39-10, for conditions that interfere with military service (character and behavior disorder).  The specific reason for the action was that the applicant was diagnosed as having a DSM-III Axis I: 300.01, Panic Disorder.  His attitude and duty performance had been deteriorating since Nov 84 and counseling had not brought about any change.

On 11 Apr 85, the Staff Judge Advocate found the request for discharge legally sufficient, recommended the administrative discharge be approved, and that the applicant be separated with an honorable discharge without probation and rehabilitation.  The discharge authority approved the recommendation.

On 26 Apr 85, the applicant was discharged with an honorable character of service.  His narrative reason for separation is “Conditions That Interferes with Military Service-Not Disability-Other.”  He was credited with one year, seven months and one day of active service.

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 Under Secretary of Defense for Personnel  and Readiness (USD P&R)  issued supplemental guidance to military corrections boards in determining whether relief is warranted based on equity, injustice, or clemency.  These standards authorize the board to grant relief in order to ensure fundamental fairness.  Clemency refers to relief specifically granted from a criminal sentence and is part of the broad authority Boards have to ensure fundamental fairness.  This guidance applies to more than clemency from sentencing in a court-martial; it also applies to any other corrections, including changes in a discharge, which may be warranted on equity or relief from injustice grounds.  This guidance does not mandate relief, but rather provides standards and principals to guide Boards in application of their equitable relief authority.  Each case will be assessed on its own merits.  The relative weight of each principle and whether the principle supports relief in a particular case, are within the sound discretion of each Board.  In determining whether to grant relief on the basis of equity, an injustice, or clemency grounds, the Board should refer to the supplemental guidance, paragraphs 6 and 7. 

On 18 Sep 20, the Board staff provided the applicant a copy of the liberal consideration guidance (Exhibit E).

AIR FORCE EVALUATION

The AFRBA Psychological Advisor completed a review of all available records and finds insufficient evidence to support the applicant’s request for a medical retirement due to Panic Disorder or any mental health conditions.  The applicant had unsuiting mental health conditions and appropriately received an administrative discharge.  The Psychological Advisor acknowledges that there is evidence the applicant struggled with emotional distress causing him to develop depressive symptoms, anxiety, and panic attacks during service.  These symptoms in turn, affected his functioning causing him to be late to work on numerous occasions, had poor concentration, and a lack of apparent interest as observed by his chain of command leading to his command- directed evaluation (CDE).  Thus, there was an established nexus between his mental health condition and behaviors in service rendering him unable to continue with his military service.  However, these conditions/symptoms were not his primary condition but were the results or reaction to a more serious stressor: his sexual identity problem.  His sexuality was discussed numerous times in the CDE and was identified as his primary stressor and was given a diagnosis of Panic Disorder specifying this was secondary to his sexual identity problem.

The Psychological Advisor concedes that at first glance a Panic Disorder diagnosis is generally an unfitting condition; however, a deeper assessment of the records finds that his condition and symptoms in the absence of this diagnostic nomenclature were unsuiting conditions.  Thus, the reason an administrative discharge versus a medical separation was recommended and pursued instead.  The Psychological Advisor acknowledges the independent review that was submitted to verify his Panic Disorder diagnosis and concurs that the reported symptoms may be consistent with a Panic Disorder but nonetheless, could also meet criteria for other disorders.

The Psychological Advisor recognizes that the applicant’s legal counsel reported he has been receiving a 70 percent disability rating for Panic Disorder but no evaluation records were submitted to determine when he received this rating and diagnosis from the Department of Veterans Affairs (DVA).  Disability rating and mental health diagnosis from the DVA may be given several years or decades post discharge and the clinical presentation of the individual could be affected by post service stressors.  For awareness, 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 DVA, operating under a different set of laws, 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 of time transpired since the date of discharge.  The DVA 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.

Liberal consideration is applied to the applicant’s request due to the contention of a mental health condition of Panic Disorder.  The following responses to the four questions in the policy based on the available records for review.  

1.  Did the veteran have a condition or experience that may excuse or mitigate the discharge?
The applicant and his legal counsel contended the applicant should have been referred to the DES for Panic Disorder for a medical retirement.  

2.  Did the condition exist or experience occur during military service?
There is evidence in his military records reporting the applicant was diagnosed with Panic Disorder as manifested by tachycardia, shortness of breath, dizziness, and feelings of unreality, hot and cold flashes, sweating, faintness and trembling episodes, secondary to gender identity problems during service.

3.  Does the condition or experience excuse or mitigate the discharge?
The applicant’s condition of Panic Disorder was secondary to his gender identity problems and there was no indication this condition was considered unfitting for continued service.  His primary mental health conditions mitigated his behaviors and interfered with his ability to perform his military duties were considered unsuiting for continued service.

4.  Does the condition or experience outweighs the discharge?
The applicant had unsuiting mental health conditions in service that resulted in administrative discharge which the applicant appropriately received.  Therefore, his condition does not outweigh his discharge with receiving a medical separation/retirement.  

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 Sep 20 for comment (Exhibit D), but has received no response.

FINDINGS AND CONCLUSION

1.  The application was not timely filed, but it is in the interest of justice to excuse the delay.

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 the victim of an injustice.  While the Board notes the recommendation of the AFBCMR Psychological Advisor against correcting the record, the Board finds a preponderance of the evidence substantiates the applicant’s contentions.  Specifically, the Board determined that the applicant’s diagnosis of Axis I: 300.01 Panic Disorder, as manifested by tachycardia, shortness of breath, dizziness, and feelings of unreality, hot and cold flashes, sweating, faintness and trembling episodes, secondary to gender identity problems, although considered secondary, can be medically disqualifying and should have been considered unfitting.  The Board notes the applicant was discharged due to mental health issues; however, in the interest of justice, the Board believes he should have been rated at 30 percent for his Panic Disorder, and therefore recommends correcting the applicants records as indicated below.  

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

a.	On 20 March 1985, he was found unfit to perform the duties of his office, rank, grade 
or rating by reason of physical disability, incurred while he was entitled to receive basic pay; the diagnosis in his case was Panic Disorder, that his condition was under VASRD code 9412; with a disability rating of 30 percent; the degree of impairment was permanent; the disability was not due to intentional misconduct or willful neglect; the disability was not incurred during a period of unauthorized absence; and the disability was not as a direct result of armed conflict or caused by an instrumentality of war and was not combat-related.  

b.  On 26 April 1985, he was discharged from active duty and on 27 April 1985, he was permanently retired with a compensable percentage for physical disability of 30 percent.

c.  His election of the Survivor Benefit Plan option will be corrected in accordance with his expressed preferences and/or otherwise provided by law or the Code of Federal Regulations.  

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-2019-04208 in Executive Session on 29 Sep 20:

, Chair, AFBCMR
, 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 14 Aug 19.
Exhibit B:	Documentary evidence, including relevant excerpts from official records.
Exhibit C:	Advisory opinion, AFBCMR Psychological Advisor, dated 18 Sep 20.
Exhibit D:	Notification of advisory, SAF/MRBC to applicant, dated 18 Sep 20.
Exhibit E:	Consolidated clarifying guidance, various dates to applicant, dated 18 Sep 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.