RECORD OF PROCEEDINGS

IN THE MATTER OF:	DOCKET NUMBER: BC-2019-05125

XXXXXXXXXXXXXXXX	COUNSEL: NONE	 

  	HEARING REQUESTED: YES

APPLICANT’S REQUEST

His NGB 22, Report of Separation and Record of Service, issued 15 Oct 13, Item 23, Authority and Reason, “AFI 36-3209, Paragraph 2.24: Unsatisfactory Participation/no MSO/No Potential for Useful service, SPD, JSG” and Item 26, Reenlistment Eligibility, “Not Applicable”  be changed to permit reentry into the Armed Forces. 

APPLICANT’S CONTENTIONS

On 4 Jan 11, while on Title 10 orders, he self-disclosed he was struggling with substance abuse.  He was sent to a treatment center and was assured upon rehabilitation he would be returned to his position as a C-17 pilot.  During treatment, he was misdiagnosed with bi-polar disorder and was told he no longer qualified to be in the military.  His active duty orders ended on 31 Mar 11 and he was supposed to be on medical continuation (MEDCON) orders while awaiting a medical evaluation board (MEB).  In Feb 12, he received MEDCON orders for 6 months and was told to continue treatment with the Veterans Affairs (VA) while awaiting his MEB.  He was not considered by a MEB but notified he would be receiving an honorable discharge.  In Aug13, he signed the paperwork for his discharge but was unaware his discharge would be for unsatisfactory participation with no potential useful service.

He was able to get sober on 5 May 14 through a 12-step program and received counseling from the VA.  After a year of therapy the counselor told him he had no symptoms of post-traumatic stress disorder (PTSD) or any mental disorders.  He applied to the Federal Aviation Agency (FAA) to have his pilot medical certificate reinstated.  He disclosed to the FAA his substance abuse history, bipolar disorder and other medical records.  The FAA had him go through a rigorous recovery program for pilots in recovery.  During this process he had to undergo many psychiatric evaluations.  After three years of monitoring, he was able to demonstrate to the FAA he had no mental issues.  He received a medical certificate and returned to flying.  His certificate is a special issuance certificate that allows him to fly as long as he continues to be evaluated monthly by the FAA.  He has doctors’ reports that cleared up the misdiagnosis and concluded he only had a substance abuse program.  He is currently flying for a commercial airline and he helps other pilots who struggle with alcohol or substance abuse.  
The Air Force spent a lot of money training him as a pilot and he was only able to fulfill 3 years of the 10 years’ service obligation.  He would like to try to re-join the ANG or Air Force Reserve and serve his last 7 years as he is completely rehabilitated.  He has spoken with recruiters who have advised that if his RE code is changed he could rejoin.  He has also spoken to unit commanders who advised they would give him an interview for a pilot position should he be medically qualified.  The applicant’s complete submission is at Exhibit A.

STATEMENT OF FACTS

The applicant is a former ANG captain (O-3).  

AF Form 348, Line of Duty Determination, dated 25 Mar 11, shows he was diagnosed with bi-polar disorder.  It stated on 8 Feb 11, he voluntarily admitted to a treatment facility for polysubstance dependency and bi-polar disorder.  His condition was determined to be in the line of duty (ILOD) with no evidence it existed prior to service (EPTS).  

AF Form 469, Duty Limiting Condition Report, dated 19 Jul 12, shows the applicant was placed on duty and mobility restrictions through 19 Jul 13.  It stated he was undergoing MEB to determine medical fitness.  

In a letter dated 20 Mar 13, the chief of aerospace medicine noted the applicant was found not to have a medical condition that required MEB for fitness for duty or disability processing.  His medical conditions and circumstances were found unsuiting and did not constitute a physical disability and thus not ratable in accordance with DODI 1332.38, Physical Disability Evaluation.  The case was returned for administrative action and processing as determined by his commander.

The Initial RILO Cover Sheet/Checklist dated 23 Mar 13 shows the Deployment Availability Working Group (DAWG) determined applicant’s substance abuse induced mood disorder and anxiety disorder were unsuiting conditions and a MEB was not required.  

On 15 Oct 13, he was honorably discharged with Authority and Reason, “AFI 36-3209, Paragraph 2.24: Unsatisfactory Participation/no MSO/No Potential for Useful service, SPD, JSG” and Reenlistment Eligibility, “Not Applicable.” For more information, see the excerpt of the applicant’s record at Exhibit B and the advisory at Exhibit C.

AIR FORCE EVALUATION

NGB/A1PP recommends partial grant.  The applicant should not have been separated without Secretary of the Air Force approval.  The separation also does not appear to have been routed to the Air Force Judge Advocate (AF/JA) for review because the administrative package would have been routed to NGB/A1PP.  The policy was not followed in the applicant’s case.  Since it is not within the scope of the Board’s authority to mandate that the State access the applicant, it is recommended his separation and reason for separation be updated to “AFI 36-3209, Separation and Retirement Procedures for Air National Guard and Air Force Reserve Members, paragraph 2.46.1.7, Miscellaneous Reason.”

NGB/A1PP recommends denial for change of the RE code since RE codes are not used for ANG officers.  The NGB Form 22 is correct in reflecting his RE code as “Not Applicable.”  The complete advisory opinion, with attachment, is at Exhibit C.

APPLICANT’S REVIEW OF AIR FORCE EVALUATION

The Board sent a copy of the advisory opinion to the applicant on 3 Mar 20 for comment (Exhibit D).  In an e-mail dated 9 Mar 20, he noted the error in his first name on the advisory opinion.  The applicant’s complete response is at Exhibit E.

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 error or injustice.  The Board concurs with the rationale and recommendation of NGB/A1PP and finds a preponderance of the evidence substantiates the applicant’s contentions in part.  Specifically, the applicant has provided sufficient evidence to show there were administrative errors in the processing of his discharge.  However, this Board, which serves on behalf of the Secretary of the Air Force, is without authority to direct the State reinstate or access the applicant due to the errors in the processing of his discharge.  Accordingly, in the interest of justice, the Board recommends the authority and reason for discharge as listed on his NGB 22 be corrected to show he was separated for miscellaneous reason instead of unsatisfactory performance/no potential for useful service.  The applicant also requests his RE code be changed; however, ANG officers are not assigned RE codes.  Therefore, the Board recommends correcting the applicant’s 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 his NGB 22, Report of Separation and Record of Service, issued on 15 Oct 13, Block 23, Authority and Reason, show “AFI 36-3209, Separation and Retirement Procedures for Air National Guard and Air Force Reserve Members, paragraph 2.46.1.7, Miscellaneous Reason;” instead of “AFI 36-3209, Paragraph 2.24: Unsatisfactory Participation/no MSO/No Potential for Useful service. SPD JSG.”  

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-2019-05125 in Executive Session on 17 Jun 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 7 Oct 19.
Exhibit B:	Documentary evidence, including relevant excerpts from official records.
Exhibit C:	Advisory opinion, NGB/A1PP, w/atch, dated 30 Jan 20.
Exhibit D:	Notification of advisory, SAF/MRBC to applicant, dated 3 Mar 20.
Exhibit E:	Applicant’s response, dated 9 Mar 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.