RECORD OF PROCEEDINGS

IN THE MATTER OF:	DOCKET NUMBER: BC-2019-04344

	COUNSEL: NONE

	HEARING REQUESTED: YES

APPLICANT’S REQUEST

His honorable discharge be changed to a medical retirement.

APPLICANT’S CONTENTIONS

He should have received a medical retirement since his medical condition [Post-Traumatic Stress Disorder (PTSD)] did not allow him to continue to serve in the Air National Guard (ANG).  He was separated under the Non-Duty Disability Evaluations System and not On-Duty Disability Evaluations System because he did not have a Line of Duty (LOD) processed.

The applicant’s complete submission is at Exhibit A.

STATEMENT OF FACTS

The applicant is an honorably discharged ANG master sergeant (E-7).

AF Form 469, Duty Limiting Condition Report, provided by the applicant, dated 16 Aug 14, reflects he was identified with a Non-Duty physical disqualification that must be processed through the Non-Duty Disability Evaluation System (DES) to continue his military service.  The physical limitations expired on 15 Aug 15.

On 3 Nov 14, according to the applicant’s NGB Form 22, Report of Separation and Record of Service, he was honorably discharged with an authority and reason of “Physical Disqualification, SPD:  JFT.”   He served 20 years, 7 months, and 22 days of total service for retired pay at age 60.

Reserve Order EK-2315, dated 19 Feb 15, provided by the applicant, reflects he was assigned to the Retired Reserve Section and placed on the Retired List effective 2 Nov 14.

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

APPLICABLE AUTHORITY

The military Disability Evaluation System (DES), established to maintain a fit and vital fighting force, can by law, under Title 10, United States Code (USC), only offer compensation for those service incurred diseases or injuries which specifically rendered a member unfit for continued service and were the cause for career termination; and, then only for the degree of impairment present at the time of separation and not based on future occurrences.  Department of Defense Instructions 1332.32 (DoDI 1332.32), Physical Disability Evaluation, reads “A Service member shall be considered unfit when the evidence establishes that the member, due to physical disability, is unable to reasonably perform the duties of his or her office, grade, rank or rating.”

The DoD and the Department of Veterans Affairs (DVA) disability evaluation systems operate under two separate laws. Under Title 10, United States Code, Physical Evaluation Boards 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 AF 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 AF 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.

AIR FORCE EVALUATION

The BCMR Medical Advisor recommends denying the application.  There is no evidence of an error or injustice in the decision rendered regarding the applicant’s discharge.  The applicant contends that his mental health illness was in Line of Duty (ILOD) and he should have received medical retirement due to his psychiatric condition.  However, in 2014, the applicant did not appeal through DES when he was given an opportunity to do so.  According to the applicant’s DVA records, his trauma goes back to the early 1990s.  During his active duty service in the Army, he was deployed in support of DESERT STORM where he experienced being bombed and witnessed other “brutalities of war.”  

Even though the DVA determined that the applicant’s psychiatric illness has a nexus with his previous military duty, he does not automatically qualify for Medical Evaluation Board (MEB) and medical retirement, since the condition first has to be found ILOD.  The applicant has not been on active orders for over 10 years; therefore, the condition he incurred, specifically his mental health issues, were not ILOD, making him ineligible for DES processing.  Furthermore, the current DoDI 1332.18, Disability Evaluation System, Prior Service Impairment states “any medical condition incurred or aggravated during one period of active service or authorized training in any of the Military Services that recurs, is aggravated, or otherwise causes the member to be unfit, should be considered incurred in the LOD, provided the origin of such impairment or its current state is not due to the Service member’s misconduct or willful negligence, or progressed to unfitness as the result of intervening events when the Service member was not in a duty status.”  Given the length of time, it would be difficult to argue that no intervening events occurred.  To be precise, the applicant incurred the condition in the 1990, while he was on active duty, however, it did not progress to a level of unfitness until 2014, over 20 years later.

In accordance with AFI 36-2910, Line of Duty (LOD) Determination, Medical Continuation (MEDCON), and Incapacitation (INCAP) Pay, for Reserve Component an LOD determination must be made when: “The member incurs or aggravates an illness, injury or disease, or receives any medical treatment while serving in any duty status, regardless of the member’s ability to perform military duties.”  Furthermore, the current DoDI 1332.18 lists the following categories of service members eligibility for DES “Service members on active duty or in the RC who are on orders to active duty specifying a period of more than 30 days. (2) RC members who are not on orders to active duty specifying a period of more than 30 days but who incurred or aggravated a medical condition while the member was ordered to active duty for more than 30 days.”  

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 4 May 20 for comment (Exhibit D), 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 BCMR Medical 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.

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

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-2019-04344 in Executive Session on 20 May 20 and 4 Jun 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 15 Jul 19.
Exhibit B:	Documentary evidence, including relevant excerpts from official records.
Exhibit C:	Advisory opinion, BCMR Medical Advisor, dated 1 May 20.
Exhibit D:	Notification of advisory, SAF/MRBC to applicant, dated 4 May 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 pertaining to Docket Number BC-2019-04344.